National Police Misconduct Reporting Project

Police Chiefs Get Behind Reform Proposals

From the Washington Post:

The nation’s police chiefs will call Tuesday for changes in the way they conduct investigations as a way to prevent wrongful convictions, including modifying eye­witness identification.In a joint effort with the Justice Department and the Innocence Project, an advocacy group for prisoners seeking exoneration through DNA testing, the International Association of Chiefs of Police (IACP) will urge police departments nationwide to adopt new guidelines for conducting photo lineups, videotaping witness interviews and corroborating information from jailhouse informants, among 30 recommendations. The group also calls for new tools to identify investigations at high risk of leading to a wrongful arrest, as well as formalizing the ways flawed cases are reviewed and claims of innocence are investigated.“At the end of the day, the goal is to reduce the number of persons who are wrongfully convicted,” said Walter A. McNeil, the police chief in Quincy, Fla., and past president of the chiefs association, which convened a national policy summit on wrongful convictions. “What we are trying to say in this report is, it’s worth it for all of us, particularly law enforcement, to continue to evaluate, slow down, and get the right person,” McNeil said. Legal experts said the findings, which were funded by the Justice Department’s Office of Justice Programs, mark a milestone in the deepening engagement by police and prosecutors in correcting breakdowns in the criminal-justice system.

Death Penalty Convictions Questioned

From the Washington Post:

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.

It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues.

The FBI’s Remarkable Pension Program

The on-going trial of James Bulger is bringing media attention back to the scandalous behavior of certain high-ranking FBI agents in the Boston area.  There was much wrongdoing, but some of the worst aspects were that these FBI agents would look the other way while their informant, Bulger, committed all sorts of crimes, including murder.  And then, believe it or not, the FBI agents would stay mum while innocent persons were accused of committing their informant’s crimes.  And they would stay mum while those innocent persons languished in prison for years.

John Morris was one of these high-ranking FBI agents and because of his record of “public service,” he is living comfortably on his FBI pension.

We know this because he was cross-examined in court the other day.  Here’s an excerpt from NBC News:

During an aggressive cross-examination, Brennan aimed to discredit Morris by leading him through a long litany of his corrupt acts during his tenure at the FBI, including taking money and gifts from informants, obstructing justice, tipping off organized crime about FBI investigations, carrying on a long affair with his secretary and lying to cover up those actions.

“You were being deceitful?” Brennan asked.

“Yes, I was,” Morris answered. …

Morris, who was granted immunity for his testimony about FBI misconduct in 1998, now works as a part-time wine consultant and continues to receive a government pension.

Some related info here.

 

The Jabbar Collins Case

From the New York Times:

Jabbar Collins …  is suing the city after winning his release after serving 16 years in prison for a murder he said he did not commit. His conviction was tossed out after he provided evidence that the police and prosecutors coerced false testimony….

The judge presiding over Mr. Collins’s lawsuit, Frederic Block, said the facts showed that officers working on the case, Vincent Gerecitano and Jose. R. Hernandez, had pressured a heroin addict to implicate Mr. Collins, and that Mr. Vecchione had threatened the addict with prosecution and bodily harm unless he agreed to testify against Mr. Collins. Two other witnesses made similar accusations.

 

Brady v. Maryland — 50 Year Anniversary

Today marks the 50th anniversary of one of the most important criminal justice rulings of the Supreme Court.  On May 13, 1963 the Supreme Court issued its landmark decision in the case of Brady v. Maryland.  The case stands for the proposition that the government has a legal obligation to disclose exculpatory evidence and information to the accused and his defense attorney.  Here is the key passage:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution...  Society wins not only when the guilty are convicted, but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.

I like this language from a related case that the Court quotes approvingly:

“Petitioner’s papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody….”

We should all be troubled that this rule was not clearly established in our law long before 1963, but better late than never.  And do note that the prosecutor cannot turn over evidence if the police have kept it from him.

Let’s take a concrete example to illustrate what this is all about.  Let’s say a  jewelery store was robbed by a guy with a gun yesterday.  Police arrived shortly thereafter to investigate and interview witnesses at the scene.  Three witnesses say the robber was an Asian male in his 50s.  Two witnesses say the robber was a white guy in his 30s.

Seven months later an Asian family arrives at your law office and asks you to represent their relative, a man who has been arrested for that jewelery store robbery.  Your client turns out to be an Asian male, age 55.  He has no criminal record.  He says he is innocent, but he has no alibi–home alone watching television is his story.  The prosecutor offers a plea bargain:  Your client pleads guilty and must do one year in prison.  If the deal is rejected and you insist on a trial, it’ll be a 10 year prison sentence.    The prosecutor informs you that this case is “open and shut”–showing you police reports of three witnesses from the scene.  And these three people also picked your client from a police line-up.   He says,  “Do we have a deal, or not?”   Since you are in the dark about the other two witnesses, you recommend to your client that he take the deal and plead guilty.  The client hates the deal, but he is frightened by the prospect of 10 years in prison and is unnerved that his own lawyer says that he will probably lose in court.  So he pleads guilty and is taken to prison.  You and the prosecutor move on to other cases.

The Brady rule is supposed to make such scenarios impossible.  As noted, the rule says the prosecution has to tell the defense about those other 2 witnesses and their statements that constitute exculpatory evidence for your client.  But there is a serious shortcoming with the Brady rule.  It is sorta like  the 55 mph speed limit for motorists on the highway.  Violations are common.   In 2010, a federal judge wrote, “The persistent recurrence of inadvertent violations of defendants’ constitutional right to discovery in the District of Massachusetts persuades this court that it is insufficient to rely on the Department of Justice training programs for prosecutors alone to assure that the government’s obligation to produce certain information to defendants is understood and properly discharged.”  In 2009, a federal judge in Washington, DC threw out the criminal case against Alaska Senator Ted Stevens.  The judge said withholding evidence that could be helpful to defendants had become a troubling trend.

The troubling trend is found in the state courts as well.  John Thompson spent 18 years in prison, 14 of those years isolated on death row, before exculpatory evidence came to light.  He did not commit the crimes of armed robbery and murder.  Justice Ruth Bader Ginsburg noted that this was no isolated incident in New Orleans:  “From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations … Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.”  See Connick v. Thompson  (2011).

So we have 50 years of experience now and still great reluctance to face the fact that Brady is mostly a paper tiger.  When violations do come to light, often years later, the courts typically engage in a “harmless error” analysis.  That is, they look to see if the outcome of the case would have been any different if the rules had been followed.  If not, the court will just scold the prosecutor that what he did was improper but the conviction will stand.  In my book, I suggest the courts adopt another rule: Automatic retrials whenever a Brady violation comes to light.  This stricter rule would, I argue,  “spur officials to meet their obligation, and improve the overall administration of justice.”  The Innocence Project is proposing another approach in Texas and elsewhere.

For a related article where I discuss the connection between plea bargains and the Brady rule more fully, go here.

New Ken Burns Film on the Central Park Five

From Columnist George F. Will:

There were abundant dystopian aspects of New York City in the 1980s, when crime, crack and AIDS produced a perfect storm of anxiety about the fraying social fabric. This was the context — a city on edge — when on April 19, 1989, a 28-year-old white woman who worked on Wall Street went for a jog after dark in Central Park.  She became a victim of what was immediately called “wilding,” a word probably unknown by the four blacks and one Hispanic, ages 14 to 16, who were arrested and charged with raping her and beating her nearly to death.

After up to 30 hours of separate interrogations by detectives who are paid to be suspicious of suspects, four of the five confessed to a crime they did not commit. Why? Watch this documentary by Ken Burns, David McMahon and Sarah Burns. To see the old videotapes of the interrogations is to understand the dynamic that sent the five to prison despite the absence of evidence to bolster a rickety case that consisted entirely of those contradictory confessions.

More information here.

 

DC Moves to Reduce Wrongful Convictions

From the Washington Post:

Courts and police in the nation’s capital will change how they conduct lineups of suspects, when they notify defendants about informants and how long they retain criminal trial records, all in response to errors that have put innocent people in prison.

A task force created by D.C. Superior Court Chief Judge Lee F. Satterfield recommended that police use computers and staff not associated with a particular case to administer photo lineups to prevent influencing potential witnesses.

The court acknowledged that DNA often has cleared defendants long after their convictions, so officials will by March begin keeping trial records permanently rather than destroying them after 10 years.

Does Facebook Help the Prosecution, But Not Defense?

From Wired’s Ryan Tate:

[P]rosecutors generally have an easier time than defense attorneys getting private information out of Facebook and other social networks, as highlighted in an ongoing Portland murder case. In that case, the defense attorney has evidence of a Facebook conversation in which a key witness reportedly tells a friend he was pressured by police into falsely incriminating the defendant.

Facebook rebuffed the defense attorney’s subpoena seeking access to the conversation, citing the federal Stored Communications Act, which protects the privacy of electronic communications like e-mail – but which carves out an exemption for law enforcement, thus assisting prosecutors. “It’s so one-sided … they cooperate 110 percent anytime someone in the government asks for information,” one Oregon attorney told the Portland Oregonian, citing a separate case in which Facebook withheld conversations that could have disproved a rape charge, but turned over the same conversations when the prosecution demanded them.

Trooper of the Year

From the New York Times:

Ms. Steed pulled over Julie Tapia for speeding as she was driving home. Ms. Tapia was giving a ride to her ex-husband, who had been drinking, but Ms. Tapia herself does not drink, the suit said.

Ms. Steed claimed Ms. Tapia failed a field sobriety test and arrested her. But blood tests showed no presence of impairing drugs or alcohol in her system, according to the suit. The charges were ultimately dismissed.

Michael Studebaker, another lawyer representing the plaintiffs, said that he believes there are at least hundreds of additional tainted arrests involving Ms. Steed. “The 40 or so individuals that have contacted us have to be the tip of the iceberg because Steed arrested many other people,” he said. “Her actions are so blatant, that it is probable that she acted like this in an untold number of cases.”

Wake up, put uniform on, smear some innocent people with false charges, then call it a day.   She was thriving — Trooper of the Year!  Promotions seemed “inevitable.”   If the evidence turns out to be as damning as it seems, her exposure is so much more than a “bad apple.”  It exposes  a dangerously dysfunctional system.

 

Federal Agents Riding to the Rescue to Protect Us

From the Wall Street Journal:

Peter Gleason was a psychiatrist who devoted much of his professional life to caring for what government officials call “underserved populations.” He would have been thrilled to learn that on Dec. 3 in New York, a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a ringing opinion that vindicated the conduct for which he was indicted and arrested in 2006.

Unfortunately, Gleason did not live to see this welcome reversal of the federal government’s crusade against him and the promotion of Xyrem—a drug widely used by physicians, including Gleason, to treat a number of medical conditions beyond what the federal Food and Drug Administration approved it for. Hounded for years, he saw his career and finances ruined by the relentless war waged against him by FDA bureaucrats and Justice Department prosecutors. Gleason committed suicide on Feb. 7, 2011.

Harvey Silverglate is a Cato adjunct scholar.