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DC Event 9/29: You Have the Right to Remain Innocent

The police are supposed to protect and serve the public.  Most police procedural dramas on television–perennially among the most popular shows for decades–paint a picture of officers working diligently and honestly to catch the bad guys. Many children are taught that police officers are among the most trusted members of the community and that there is no need to fear them. But is that how police work in real life?

Not exactly.

Police officers are trained to extract information from people whether or not they are criminal suspects. Indeed, one of the more common tricks officers use is getting people to give up the right to refuse a search of their person or property. With consent, police officers can rummage through your pockets and cars–or even your homes–looking for a reason to arrest you.

For this reason, talking to police when you don’t have to is often a bad idea. So many of the wrongfully convicted people in this country didn’t exercise their right to be silent and were put away because they didn’t think they had anything to hide. How wrong they were.

On Thursday, Cato is hosting an event with Prof. James Duane, the law professor whose lecture to NEVER talk to the police went viral. He’s here to discuss his book on self-incrimination and the criminal justice system, You Have the Right to Remain Innocent. The book is engaging, informative, and easy to read. Cato adjunct Randy Barnett of Georgetown University Law Center will be commenting on the book and it will be moderated by our own Tim Lynch.

Copies of the book will be sold at the event. You can register for the free event and lunch here. You can join the discussion online using the Twitter hashtag #6ARights.

Cross-posted from Cato@Liberty

The Donald Gates Case

From the Washington Post:

THE DISTRICT of Columbia’s agreement to pay $16.65 million to settle the federal civil rights lawsuit of a man who spent 27 years in prison for a crime he did not commit should not be the end of this troubling case. That a jury found there to be egregious police misconduct demands rigorous review of other cases handled by the detectives involved, to ensure there haven’t been similar miscarriages of justice. Also needed is resolve by prosecutors and others in the criminal justice system to tackle the systemic issues that contribute to wrongful convictions.

Last week, Federal Judge Alex Kozinski was here at Cato to debate problems in our criminal justice system, including the problems that contribute to wrongful convictions.  That event can be viewed here.

$40 Million Settlement in NY Central Park Case

From the New York Times:

The five men whose convictions in the brutal 1989 beating and rape of a female jogger in Central Park were later overturned have agreed to a settlement of about $40 million from New York City to resolve a bitterly fought civil rights lawsuit over their arrests and imprisonment in the sensational crime.

The agreement, reached between the city’s Law Department and the five plaintiffs, would bring to an end an extraordinary legal battle over a crime that came to symbolize a sense of lawlessness in New York, amid reports of “wilding” youths and a marauding “wolf pack” that set its sights on a 28-year-old investment banker who ran in the park many evenings after work….

The five black and Hispanic men, ages 14 to 16 at the time of their arrests, claimed that incriminating statements they had given had been coerced by the authorities. The statements were ruled admissible, and the men were convicted in two separate trials in 1990….

The lawsuit had accused the city’s police and prosecutors of false arrest, malicious prosecution and a racially motivated conspiracy to deprive the men of their civil rights, allegations which the administration of Mayor Michael R. Bloomberg denied and fought vigorously for more than a decade in federal court….

If the proposed settlement is approved by the comptroller, Scott M. Stringer, it would then be submitted for approval to Judge Deborah A. Batts of Federal District Court in Manhattan. In 2007, Judge Batts rejected the city’s motion to dismiss the suit and allowed most of the claims to proceed.

In such settlements, the city typically does not admit liability or wrongdoing

Officer Tells Criminal to Plant Meth in Ex-Wife’s Car So He Can Win Child Custody Fight

From ABC News:

Madisonville police Sgt. Jeffrey Covington, was convicted last week of retaliation for planting methamphetamines in Laura Covington’s car in 2011 during a child custody battle. The drugs were found after she was stopped by police and she was promptly jailed….

The court determined that Jeffrey Covington and a second police officer arranged with a third person to plant drugs in Laura Covington’s vehicle. She was seven months pregnant when she was arrested and her two children were taken away from her for five weeks.

“Being arrested when I was seven months pregnant, going to jail, and then having my two young children taken from me was a nightmare that still causes me pain to this day,” she told ABC News.  “It’s like a bad dream, but the sad thing is that it’s not a dream because it actually happened.”

“Having my babies taken from me was the worst part about this entire ordeal and if Jeff would have succeeded in his scheme, I could have lost them forever.

The Byron Halsey Case

From Yahoo News:

In a strongly worded opinion (pdf), a federal appeals court has ruled a man has every right to sue cops who allegedly coerced him into confessing to gruesome child murders he didn’t commit, resulting in him spending 22 years in prison.

The Third Circuit’s opinion revives Byron Halsey‘s lawsuit accusing two cops of violating his Constitutional rights by bullying him into saying he’d tortured and killed two small children. That decision overturns a lower court’s decision, which found the police officers had qualified immunity from his lawsuit.

In his decision Thursday, Philadelphia-based Third Circuit Judge Morton Ira Greenberg almost expresses disbelief (pdf) about the way investigating officers treated Halsey, who was 24 at the time of the murders and had just a 6th-grade education.

“Except when an innocent defendant is executed, we hardly can conceive of a worse miscarriage of justice,” Greenberg wrote for the Third Circuit.

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.