In what can only be described as the height of prosecutorial arrogance, Federal prosecutors in Washington state decided that their right to seize the assets of suspected drug dealers reaches right into the mouths of the accused. Flenard T. Neal Jr. and Donald Jamar Lewis were awaiting trial and hadn’t been convicted of any offense when they were suddenly loaded into a van at the Federal Detention Center in SeaTac and shipped off to the dentist’s office where prosecutors intended to seize their gold fillings. I am not making this up.

Kudos to Federal Public Defenders Zenon Peter Olbertz and Miriam Scwhartz for rising immediately to the challenge and to United States Magistrate J. Kelley Arnold, who put a permanent stay on the proposed extractions.

Read the full story here.

RP

Gregory Wallis was 29 years old when he was arrested and tried for a burglary and attempted sexual assault. He swore he didn’t do it, and after an inconclusive DNA test using old technology, a Texas jury convicted him and the judge gave him 50 years in prison. Now, 18 years later, with the benefit of technological advances in DNA matching, Wallis’s lawyers were able to demonstrate conclusively that the DNA samples taken from the crime scene were *not* from Wallis. And with that, they were able to persuade District Judge John Creuzot that Wallis didn’t do it. As he had claimed all along, Wallis was 100% factually innocent.

How do you repay a man who’s been innocently thrown into a hellhole for nearly 20 years because of a “mistake”? Most judges and prosecutors in exoneration cases spend more time and verbiage rationalizing their original decisions and covering their own butts than trying to comfort these people who have had their lives ripped away. Judge Creuzot (who was not the original sentencing judge) took another approach. He apologized.

“I don’t know how to apologize. I don’t know where to start, but I’ll start with me and ‘I’m sorry,’

Texas provides a fund for up to $250,000 to victims of wrongful conviction, and Wallis may be able to start there to rebuild his life. No one in their right mind would trade 20 years of their life for $250,000, and the reality is that Texas is probably going to wind up coughing up more after the dust settles. Until then, it’s a start.

Read the full story here.

RP

It’s bad enough when a completely factually innocent man has to spend 10 years of his life in prison for something he had nothing to do with — that’s got to shock the conscience of most anyone. But these tragedies hurt on so many other dimensions. When Neil Miller was wrongfully convicted of a rape he didn’t commit, the real rapist, Larry Taylor, went on to commit two other rapes. These two women pay their own price for the sloppy police work that led to Miller’s travesty. And now it turns out that a new cost is being assessed in these increasingly common stories: the public pays out of its tax dollars.

After Miller was wrongfully arrested he sued the city of Boston over the outrageous practices they employed to coerce an identification out of a victim who initially was shown his picture and did NOT identify him as the rapist. Police persisted, suggesting that it was in fact Miller, whereupon she was shown another lineup. This time she identified TWO individuals; first, Miller, and then another man. The police then told her to “it’s best to go with your first impression”, effectively steering her to the man they had hoped she would identify all along.

Miller’s long nightmare came to an end when lawyers for The Innocence Project (175 exonerations to date) proved his innocence and secured his release. Thursday, the city of Boston announced it had settled Miller’s lawsuit for $3.2 million and issued a statement saying:

“[I]mproved procedures and scientific advances have reduced the opportunity for wrongful convictions like Miller’s, and the police department is continuing to evaluate its handling of evidence.”

And oh yeah, how did they eventually catch Larry Taylor, the real rapist? DNA at the scene. Duh.

As these wrongful prosecution stories become more and more common (see, e.g., this story), all of these costs will continue to mount and it will be clear that they far outweigh the costs of employing better procedures and available technologies. The lessons are there to be learned if authorities will just listen. I would have thought it enough that an innocent man was jailed, or that additional innocent victims were left helpless against the real criminals allowed to go free. But now the hurt is gonna hit our pocketbooks too. Maybe that will wake up a few folks.

Read the full story here.

RP

I was contacted this morning by Barry Bradford, a teacher at Adlai E. Stevenson High School in Lincolnshire, Illinois, about the work that he and his students have been doing in conjunction with the Center on Wrongful Convictions at the Northwestern University School of Law, to posthumously exonerate Clyde Kennard of crimes for which he was falsely convicted during the early days of the Civil Rights struggle in Mississippi. Kennard’s case is particularly tragic because of the racial motive putting him in prison in the first place: he was framed in the late 50’s in order to prevent him from becoming the first black student to enter the University of Southern Mississippi.

After being falsely convicted, Kennard was sent to prison where he died shortly thereafter. His name and cause lived on, but until recently there wasn’t much to go on. The team working on Kennard’s case has recently achieved a major breakthrough after they were able to get the sole witness in the case to recant his testimony and clear Kennard of any wrongdoing, proving finally that Kennard was factually innocent all along.

Bradford’s team of high school volunteers are no lightweights. Last year they helped re-open the Mississippi Burning case and get some long delayed justice for the victims of that tragedy. Now they have turned their attention to Kennard’s case and are seeking to do what others have been unable to do in the past: get Kennard a posthumous pardon and expungement from Governor Haley Barbour.

What I find most remarkable about this case is the extent to which efforts of this type have spread. What used to be the province of lone defense attorneys working against all odds on obscure cases without any resources or support, has now become so mainstream that high school teachers are getting their students involved and working with formal, organized efforts to achieve exoneration of wrongful convictions. You have to credit organizations like the Center on Wrongful Convictions, and the Innocence Project, for getting the word out about the ugly truth that uncounted numbers of innocent people are convicted and imprisoned. And with that spreading of the word comes a new national awareness and skepticism that can only result in a more fair distribution and application of justice, permeating every layer of our culture, to the point where high school students are able to mobilize and achieve stunning results. My hat’s off to students Mona Ghadiri, Agnes Mazur, Callie McCune, and their teacher Barry Bradford, who have been collaborating with Professor Steven A. Drizin at the Center on Wrongful Convictions to get some justice. Talk about a relevant civics education!

And of course one of the things that makes these missions possible is the ability to use technology in rapidly spreading the word and organizing the effort. Kudos to Bradford and his team for recognizing and utilizing this resource on behalf of the cause.

You can read more about this effort and maybe how you can help get Kennard his long overdue justice, here.

RP

According to the United States Court of Appeals for the 7th Circuit in Van Patten v. Deppisch, 04-1276 (Jan. 24), “No”. This is a case where the lawyer literally “phoned it in”, appearing at a client’s sentencing for reckless homicide via speakerphone. The defendant was given a maximum 25 year sentence by a Wisconsin state judge and subsequently appealed, claiming ineffective assistance of counsel. The conviction was upheld all the way up to the Wisconsin state Supreme Court, but was succesfully challenged on a federal habeas corpus petition.

Incredibly, the state courts analyzed the case and found it indeed ineffective assistance, but ruled it “harmless error”. The 7th Circuit held that the state courts had used an improper analysis, and instead relied upon a line of cases holding that a defendant has a right to have his lawyer present during all critical stages of the proceedings. Sentencing is certainly critical, and the court correctly pointed out that this was not “presence”.

Writing for a unanimous three-judge 7th Circuit panel, Judge Terence T. Evans noted:

… the defendant could not turn to his lawyer for private legal advice, to clear up misunderstandings, to seek reassurance, or to discuss any last-minute misgivings. Listening over an audio connection, counsel could not detect and respond to cues from his client’s demeanor that might have indicated he did not understand certain aspects of the proceeding, or that he was changing his mind.

The court also asked in a footnote: “What might we be asked to accept next? Offshore defense-attorney call centers? Letting the defendant confer with counsel via BlackBerry?”

Not the best way to showcase technology in the courtroom.

Read the full story here.

RP

With all the reporting going on about exonerations of innocent people, legislatures are finally starting to ask the question: why? The answers are many and varied: poor quality control in crime labs (see other stories on this site), inappropriate reliance on faulty eye-witness identification, and — let’s face it — overworked police who desire nothing more than to close a high-pressure case by getting a confession out of the suspect in their custody who is “obviously guilty”. Everyone is familiar with the famous Miranda warnings, but not everyone knows why it’s such a cornerstone in the foundation of criminal procedure. The fact is, once a professional interrogator gets going with a suspect, it’s entirely possible to get them to say virtually anything desired. And if not, the interrogator can “spin” actual statements made to bring them into conformity with their theory of the case. One of the standard warnings I give every one of my clients before they see a police report is to be prepared to be surprised at how the police describe any statements they’ve made. And it never fails: “Oh my God, no way, I never said anything like that.” He said, she said. I see it every day. Every case. So, who do you think the jury is going to believe?

A simple solution, of course, is to use (drum roll …) technology. Why not record every custodial interrogation in the first place? Recording statements made in custody will help not only by clarifying the actual content, but also by providing important evidence regarding the treatment of the witness, the demeanor of the interrogator, and the means used to extract the statements. Duh.

Well, states are finally starting to take action. New Jersey has become one of the first to have its Supreme Court mandate that all police interrogations must hereafter be recorded. Amen. And a number of other states have joined the effort by introducing legislation toward the same goal.

In Virginia, H.B. 1169 was recently introduced by Del. Albert Eisenberg (D-47 Dist.) to require custodial interrogations of juveniles to be electronically recorded. Confessions would be presumed inadmissible in juvenile or criminal proceedings unless the custodial interrogation is recorded in its entirety, including the Miranda warning. Certain good-faith exceptions would apply. Defense attorneys would be provided with the recording no later than 20 days prior to the proceeding.

Florida has four bills in the hopper (H.B. 433/ S. 1070 and H.B. 681/S. 770), and there may be some momentum for passage in the wake of a number of exonerations in that state. Two bills were introduced in Arizona. H.B. 2547 would require recording in homicide cases; H.B. 2636 would require recordings of juvenile interrogations. Other states with new bills requiring the electronic recording of interrogations include: Iowa (H.B. 2112); Indiana (S. 329); Maryland (H.B. 29); Michigan (H.B. 5101); Missouri (S. 768); New Jersey (A.B. 274; S. 488; S. 254); and Pennsylvania (H.B. 2281).

Justice marches on, sometimes slowly. But it appears that progress is being made at last on one of the most critical stages in the process, and that can only be good news for all of us.

My thanks to the NACDL for this news. Read their account of these activities here.

RP

As I’ve reported often, it’s scandalous how poorly most American crime “labs” are operated. Part of the problem is simply the low priority accorded funding for these labs, and the high credibility given them by folks who simply don’t know any better about the underlying “science”.

In 2004, Congress passed the Justice for All Act, in part to improve the nation’s crime labs. The Paul Coverdell Forensic Science Improvement Grant Program provides funds (almost $15 million in FY2005) to state and local governments to improve the quality of forensic science and medical examiner services. The Justice for All Act required that grant applicants submit “a certification that a government entity exists and an appropriate process is in place to conduct independent external investigations into allegations of serious negligence or misconduct….” Now it looks like the National Institute of Justice, which oversees the Coverdell Grant Program, essentially ignored the law.

In December 2005, the Department of Justice’s Office of the Inspector General (OIG) published a report which concluded that the National Institute of Justice “did not enforce the external investigation certification requirement imposed by the Justice for All Act of 2004.” The OIG found that “NIJ did not provide necessary guidance to applicants” and “did not request the information necessary to evaluate the applicants’ external investigation certifications.” The OIG has recommended that each Coverdell Grant applicant provide the name of the government entity that will investigate crime lab wrongdoing, and require applicants to submit a letter from the government entity that will conduct external investigations acknowledging that the entity “has the authority and process to investigate allegations of serious negligence or misconduct.”

So, the next time you read one of the common stories about a miscarriage of justice that’s occurred as a result of some screwup at a crime lab, keep in mind that the situation isn’t likely to change so long as the nation’s law enforcement community refuses to make it a priority. Defense lawyers everywhere should never, never accept the findings of a state crime lab at face value. Test your results in an independent commercial lab where real science is actually practiced.

Read the official report here.

RP

You might remember my original post on this case, wherein police actually nabbed a suspect by illegally posing as a lawfirm and mailing him a solicitation to join in a class action lawsuit. When the unsuspecting target mailed back his envelope with his request to join in the suit, police retrieved DNA from the saliva left behind when the defendant licked the envelope, sealing his fate along with it. He was subsequently arrested, tried, and convicted of murder.

Today the Washington State Supreme Court heard oral arguments in the case in front of a packed house, complete with TV and other media. State v. Athan, No. 75312-1. Arguing against the state were three — count ‘em — three lawyers: one for the defendant on appeal seeking suppression of the evidence and dismissal of the case; one representing the Bar Association and its position denouncing the state’s unlawful practice of law, and one from the ACLU arguing, well … general principles. I felt sorry for the lone King County prosecutor arguing on behalf of the state, until I remembered that she was probably living a dream few in her office could ever hope to realize. Here she was, a local prosecutor, arguing before the Supreme Court, in the big leagues, a significant and glamorous case. And she did her cause well, I was fairly impressed.

The Court was active and frisky, peppering all counsel with probing questions. Justice Chambers (a former President of the Bar Association), normally quiet and reserved, and not one to lightly challenge law enforcement, spoke loudly against the notion presented by the state that DNA typing was equivalent to fingerprint identification. “DNA produces more than just identification”, he protested. “It reveals much more about an individual, including his heritage, his ancestry, personality traits, and even this same information about his children. I don’t want my children’s privacy compromised through a sampling of my DNA”, suggesting his view that a much higher expectation of privacy attaches to DNA than to fingerprints.

Justice Sanders went even further. He laid into the state with surprising force, asking the prosecutor if she intended to prosecute the police who had acted illegally in violating state law regarding professional practice. “This activity was ill-advised”, she conceded, “but we don’t prosecute police who use ruses to nab legitimate suspects in murder cases”. Justice Sanders was not impressed. “Are police above the law”, he asked. After an almost heated exchange with mutual interruptions, the Justice — obviously annoyed — said “I don’t tolerate police breaking the law”. You could hear her gulp from the cheap seats.

I was disappointed with the position taken by the Bar. Counsel spent more time discussing the issue of privileged communications than to what I thought was the more powerful argument that what the police did in this case completely undermines the confidence of the public in the legal profession. If police are allowed to pose as lawyers, how can anyone ever be confident that they are in fact speaking to a lawyer and not a cop? Talk about a chilling effect.

The public policy issues brewing in this case are both fascinating and shocking. In recognition of Comments received regarding my original post, yes, what the defendant did in this case is even more shocking and reprehensible. But that’s why the Supremes get the big bucks; they get to decide what happens when momentous issues collide, and they don’t get much more momentous than this.

RP

I can tell just from the calls that I get that cybercrime is on the rise. Last week the FBI issued results of a corporate survey inquiring into the incidence and impact of cybercrime on American businesses. Some of the key findings:

Frequency of attacks.
Nearly nine out of 10 organizations experienced computer security incidents in a year’s time; 20% of them indicated they had experienced 20 or more attacks.

Types of attacks.
Viruses (83.7%) and spyware (79.5%) headed the list. More than one in five organizations said they experienced port scans and network or data sabotage.

Financial impact.
Over 64% of the respondents incurred a loss. Viruses and worms cost the most, accounting for $12 million of the $32 million in total losses.

Sources of the attacks.
They came from 36 different countries. The U.S. (26.1%) and China (23.9%) were the source of over half of the intrusion attempts, though masking technologies make it difficult to get an accurate reading.

Defenses.
Most said they installed new security updates and software following incidents, but advanced security techniques such as biometrics (4%) and smart cards (7%) were used infrequently. In addition, 44% reported intrusions from within their own organizations, suggesting the need for strong internal controls.

Reporting.
Just 9% said they reported incidents to law enforcement, believing the infractions were not illegal or that there was little law enforcement could or would do. Of those reporting, however, 91% were satisfied with law enforcement’s response. And 81% said they’d report future incidents to the FBI or other law enforcement agencies. Many also said they were unaware of InfraGard, a joint FBI/private sector initiative that battles computer crimes and other threats through information sharing.

I find it interesting that, despite the massive losses involved ($32 million from 2/3 of those surveyed), only 9% of victimized companies bothered to report the crimes to police. Can you imagine this kind of reporting if the topic were embezzlement or internal theft? The reasons probably have to do with feared publicity and the hit to public confidence in internal data systems if word got out that the companies were hit by hackers. And rightly so. It’s easy for me to imagine that most of these attacks probably took advantage of lax security in the first place.

Read the FBI report here.

RP

I’ve written about some of the problems associated with GSR (Gunshot Residue) analysis, and how its theoretical foundation is being challenged by courts and commentators alike. It’s a hell of a story because GSR has been one of the fundamental, bread and butter disciplines in most state crime labs for some time.

It’s not surprising, then, that these state crime labs, among the most pitifully funded and poorly monitored “labs” in the nation, are turning their attention to sexier science that gets headlines and actually achieves results. In other words, DNA testing.

Utah state officials have reached the conclusion that GSR is no longer a priority in their crime labs and they’ve ceased all funding for it, focusing their attention instead on DNA. What’s fascinating about this particular decision is that while defense lawyers are requesting GSR analysis in some cases in order to help clear their clients, Stu Smith, the state’s Director of Crime Labs, is taking the position that GSR analysis isn’t all that helpful after all. I wonder if he would have testified to that in any of the prior cases in which people were convicted based on his lab’s offer of GSR “evidence”?

This is probably just a budgeting and funding story, but you can’t help wonder if some part of Utah’s decision was based on a realization that the “science” isn’t cutting it under the kind of scrutiny that DNA is bringing to light in a CSI-conscious world.

Read about the Salt Lake City decision here.

RP