Prosecutorial Misconduct Unlikely to Result in Termination

An article in USA TODAY examined hundreds of cases of serious prosecutorial misconduct and concluded that “prosecutors have little reason to fear losing their jobs, even if they violate laws or constitutional safeguards designed to ensure the justice system is fair.” The article examined over 200 cases of federal prosecutorial misconduct since 1997 and found that prosecutors are unlikely to be fired, or face any serious sanctions, even if a court determines that misconduct occurred. USA TODAY concluded that the Justice Department “often classifies as mistakes violations that result in overturned convictions” and “consistently conceals its own investigations of misconduct from the public . . .mak[ing] it almost impossible to assess the full extent and impact of misconduct by prosecutors or the effectiveness of the department’s attempts to deter it.” New York Innocence Project Co-founder Barry Scheck discussed prosecutorial misconduct last night on CNN’s “AC360.” (follow link, click on “justice” and then “prosecutorial misconduct.”)

Prosecutorial misconduct is one of the most distressing causes of wrongful convictions because it is committed by educated, informed lawyers who take an oath to do justice.

Watch “The Confessions” online

The PBS program, “Frontline,” recently aired the first television interviews conducted with the “Norfolk Four” after their release from prison. The “Norfolk Four” were a group of men enlisted in the Navy at the time of the rape and murder of Michelle Bosko, on July 7, 1997. Despite the lack of any evidence linking the men to the crime, the “Four” were convicted based on their own confessions – confessions that were later found to be false. The interviews given by the “Four” detail the intensity of the tactics used in lengthy police interrogations, including threats and sleep deprivation. This program sheds light on why people confess to crimes they did not commit, and how police can become so dedicated to their theory of the crime that they will ignore all the evidence that points in another direction.

New DNA Evidence Casts Doubt on Texas Execution

On December 7, 2000, Claude Jones was executed in Texas for the 1989 murder of a shop owner in East Texas. The evidence against Mr. Jones included a co-defendant to the crime (who later recanted his testimony), and a single hair found at the scene which forensic technicians testified belonged to Mr. Jones, and not the victim. Yesterday, DNA testing of the hair found that, in fact, it came from the victim and not Mr. Jones, once again leaving citizens wondering whether an innocent man was executed.

At the time of the trial, DNA testing was not available. However, by the time of his scheduled execution, mitochondrial DNA testing of hair could be done. The day before his death, Mr. Jones asked then-Governor George W. Bush for a stay of execution so the hair could be tested. Mr. Bush, apparently, was never informed of the request, and the execution went ahead as planned.

While it was never doubted that Mr. Jones was present at the store when the owner was shot (he had always maintained that we was outside in a pickup truck) and that his co-defendant was the one who went inside and committed the murder. At trial, another co-defendant testified that it was Jones who was the shooter. Under Texas law, this would have been inadequate to convict Mr. Jones, as accomplice liability by itself is insufficient for a prosecution. When investigators found a hair at the scene, technicians compared it microscopically to Claude Jones and declared it a “match.” The technicians also testified that the hair did not belong to the victim. Based upon that evidence, Claude Jones was convicted and executed.

After the execution, in 2007, the Innocence Project in New York and the Texas Observer newspaper sued to obtain the hair from the police for testing. Police and prosecutors fought the request and announced instead their intention to destroy the evidence. A federal judge ordered the testing earlier this year, and the result became available just this week.

While the evidence does not establish Mr. Jones’ innocence of the crime, it certainly calls into question his conviction. As Innocence Project co-founder Barry Scheck said yesterday, “the DNA results prove that testimony about the hair sample on which this entire case rests was just wrong. Unreliable forensic science and a completely inadequate post-conviction review process cost Claude Jones his life.”

The Pennsylvania Innocence Project supports a free-standing right of prisoners to obtain DNA evidence where such evidence is available and where testing could help establish that the inmate is factually innocent of the crime for which he was convicted.

Alibi Doesn’t Protect Innocent Philadelphia Teen from 5 Months’ Incarceration

Even a videotaped alibi didn’t prevent Lionel Franks, an 18 year-old high school senior, from being incarcerated for five months for an attempted murder he didn’t commit. Before his arrest in April 2009, Franks was a strong student months away from graduating and attending Lincoln University. However, Franks missed his high school graduation after being accused of being the “black male in green sweatpants” who shot a man named Robert Bryant eight times.

According to security cameras, from 4:20:50 to 4:26:33 p.m. on April 9th, 2010, Franks was in an Olympia Sports store in North Philadelphia shopping for sneakers. The shooting occurred eight blocks away at 4:20 p.m. and police arrived on the scene at 4:26. Witnesses could not see the shooter’s face but identified him as a black male in green sweatpants with white stripes. At 4:30, twelve blocks from the scene of the shooting, Franks was spotted wearing green sweatpants with white stripes and arrested. Police noticed that Franks had spots of blood on his shoes. The difference between the security camera clock and police radio time was two minutes, 12 seconds, not enough time for Franks to have made it from the shooting to the shoe store on foot, but enough time, according to the police, for Franks to have driven that distance.

Because Franks’ mother could not afford ten percent of his $250,000 bail, Franks remained in jail for months while Assistant District Attorney William Davis pushed to expedite the DNA testing of the blood on Franks’ shoes. Franks was released on August 31, 2010, after DNA testing revealed that it was his own blood on his shoes and not Bryant’s.

Unfortunately, mistaken identifications are all too common. Though it is tragic that Franks was incarcerated for five months despite a strong alibi and scarce incriminating evidence, thankfully, in this case, the truth came to light before a trial or conviction.

New Jersey Special Master Calls for Major Overhaul of Eyewitness Evidence

For several months, a court in New Jersey held hearings at the request of the New Jersey Supreme Court to “test the current validity” of New Jersey’s standards on the admissibility of eyewitness identification. The hearings took place over a total of 10 days, and involved experts from fields of social science, law, forensics, and law enforcement. Today, the Special Master declared that, “The short answer to the Court’s question whether the Manson/Madison test and procedures are ‘valid and appropriate in light of recent scientific and other evidence’ is that they are not.” This standard, also followed in Pennsylvania, is to test the “reliability” of a witness’ memory based upon certain factors such as the witness’ ability to observe, the detail of the description, and the length of time the event happened. The problem, said the Master, is that some of the “reliability” factors which courts use tend to falsely inflate errors in identification.

Just to take one example, a factor courts are required to assess is a witness’ confidence in their identification. But the scientific evidence has shown that many events–including an officer’s telling a witness she got the “right guy”–can artificially inflate that witness’ certainty of her identification even if that identification is of an innocent person.

The Special Master called for sweeping reforms to the criminal justice system to accommodate the accepted science of eyewitness memory. The report calls for broad reliability hearings pre-trial. In addition, the report calls for the justice system to “systematically and explicitly adopt and broadly use the scientific findings” in broad voir dire questioning of potential jurors, in allowing appropriate expert testimony
“in all phases of the litigation” and with appropriate jury instructions.

The report will now be considered by the New Jersey Supreme Court. The full report can be viewed by visiting the New Jersey courts website.

Florida’s struggle to establish an innocence commission continues

Last week, according to a report by Shoshana Walter of The Ledger, the Florida State Supreme Court rejected State Senator Mike Haridopolos’ petition to establish a state funded and independent innocence commission.

In a letter to Haridopolos, State Supreme Court Chief Justice Peggy Quince said that she is still very interested in helping create the proposed commission, but wants to wait until the legislature secures funding. If Florida did establish its own innocence commission, it would be the nation’s second with power to investigate and influence specific cases and decisions; the first is the North Carolina Innocence Inquiry Commission, which secured its first exoneration earlier this year. It is a precedent that Haridopolos hopes his state can emulate.

As the Pennsylvania Wrongful Conviction Committee finalizes its report on issues in the criminal justice system and the PA Innocence Project prepares our response, the addition of another state funded innocence commission in Florida would add weight to our recommendation that Pennsylvania create its own independent commission with the same power of oversight and influence as the commission in North Carolina.