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05-09-2002, 04:18 PM
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#2 |
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retired
Join Date: Dec 2001
Location: Toronto, Canada
Posts: 1,930
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Actual Innocence
Excerpt from ACTUAL INNOCENCE, by Barry Scheck, Peter Neufeld, Jim Dwyer
APPENDIX I A Short List of Reforms to Protect the Innocent DNA TESTING Pass statutes on the state and federal level modeled after legislation in New York and Illinois that allow post conviction DNA testing if it could establish a reasonable probability that inmate was wrongfully convicted. Until these laws are passed, follow the 1999 Justice Department report for Post Conviction DNA Testing Recommendations for Handling Requests. DNA testing should be done within seven to fourteen days of a crime to make sure innocent suspects are not incarcerated and to improve the chances of catching the guilty. Do DNA tests on unsolved crimes, including more than 100,000 untested rape kits. MISTAKEN EYEWITNESS IDENTIFICATION Implement the recommendations from the 1999 National Institute of Justice report Eyewitness Evidence: A Guide for Law Enforcement. These measures all can be implemented by changes in police policies, legislation is not necessary. * All lineups, photo spreads, and other identification processes should be videotaped. * An independent, trained identification examiner should run the lineups and photo spreads. The examiner should not know the suspect - avoiding the possibility of hints or reactions that would steer the witness. * Witnesses should be always instructed prior to viewing that the actual perpetrator may not be in the lineup or photo spread. * Lineups and photo spreads should use the sequential presentation method rather that the simultaneous presentation method. With the sequential procedure, witnesses must decide on each person before seeing the next one. This prevents relative judgments and makes witnesses "dig deeper" to make the determination, and studies show such sequential presentations are more reliable. * Show-ups should be used only in rare occasions, such as when the person was detained near the scene of the crime and the witness can be shown the suspect within sixty minutes (or less) of the offense. Beyond this, proper lineups or photo spreads (using fillers) should be conducted. * The witness should be asked to rate his or her certainty at the time of the identification. * Police and prosecutors should be trained about the risks of providing corroborating details that may disguise doubts a witness may hold. FALSE CONFESSIONS One simple rule: Videotape, or at least audiotape, all interrogations so there is an objective record. Alaska has such legislation, and it has long been the rule in the United Kingdom. JAILHOUSE SNITCHES AND INFORMANTS Following the lead of Canada's Guy Paul Morin Commission recommendations, jurisdictions should set up a high-level screening committee of prosecutors to vet the jailhouse snitch/informant's testimony and all the attendant circumstances before permitting it to be used at trial. There are fourteen factors that must be considered, including: * Can the statement be confirmed by extrinsic evidence, i.e., not by another snitch? * Does it contain details or leads to the discovery of evidence known only to the perpetrator? * Does the statement contain details that could reasonably be accessed by the in-custody informer, other that through inculpatory statements by the accused - e.g., press accounts or legal pleadings: * What is the snitch/informer's general character - e.g., criminal record or other disreputable or dishonest conduct known to the authorities? * Is the snitch/informer a recidivist snitch/informer? Trial judges should presume that a jailhouse informant's testimony is unreliable and require the prosecutor to overcome that presumption before a jury can hear the evidence. All deals with snitch/informants must be in writing and all communications between the snitch and the police or prosecutor should be videotaped or audiotaped. FORENSIC FRAUD Forensic scientists should formally agree, as standard practice, that crime laboratories function as an independent third force within the criminal justice system, unbeholden to prosecutors or defense lawyers, operated by professionals who will not misrepresent or slant data for either side. Crime laboratory budgets should be independent from the police, and police officials should not be able to exercise supervisory responsibility over the scientists. Complete discovery of underlying data from forensic tests should be provided in criminal cases. Reports from forensic tests should be comprehensible explanations of the work performed, not conclusory assertions, and must describe all potentially exculpatory inferences that could be drawn from the results. There should be whistle-blower protection for forensic scientists in government who question the reliability of work, and experienced ombudspersons who can be called in to mediate disputes between scientists. State and local governments should establish an independent inspector general- type lawyer who is authorized to investigate allegations of misconduct in crime laboratories the same way that Michael Bromwich investigated the FBI laboratory. First-rate postgraduate forensic science programs should be established in leading American universities; they are desperately needed, and there are plenty of jobs in the field for highly qualified personnel. Law schools and medical schools should become active sponsors of these programs. JUNK SCIENCE, SLOPPY SCIENCE The underlying scientific basis for many forensic tests must be objectively re-evaluated under the standards enunciated in recent Supreme Court decisions designed to keep junk science out of court. Microscopic hair-comparison evidence should be abandoned. Instead, mitochondrial DNA testing of hairs should be conducted in any hair evaluation involving a matter of importance. Like medical labs, all the disciplines in crime labs should be subjected to regulatory oversight and should meet standards of professional organizations. States should create agencies modeled after New York's Forensic Science Review Commission - an independent panel composed of scientists, prosecutors, defense counsel, crime lab directors, police, and judges - that have real authority to provide effective regulation of laboratories. All crime laboratories must be accredited. This is not a panacea but a good first step. Accreditation should involve rigorous quality-control and quality- assurance review, periodic inspection, and spot checking of technicians' data. Laboratories must submit to a rigorous proficiency-testing program, including blind proficiency testing, in which samples would be sent in and analyzed as thought they were part of an ordinary case. Labs should be rated on their ability to come up with valid results. In courts, the scientists should provide, as a matter of course, information about "controls" and whether they failed; and what the error rate is for a procedure. Defense lawyers should have all material scientific evidence independently scrutinized, if not re-tested, by a competent expert. Public defenders and court-appointed lawyers must have funds to retain qualified independent experts. Every public defender's office should have at least one lawyer who acts as a full time forensic science specialist, helping other lawyers on their cases. BAD PROSECUTORS, BAD COPS Create specialized, blue ribbon disciplinary committees to deal exclusively with misconduct by criminal defense attorneys and prosecutors. Enhance federal involvement in prosecution of misconduct by state police officers. BAD DEFENSE LAWYERS Fees for court-appointed lawyers must be raised to a level that will attract competent lawyers to take cases. Public defender salaries should be the same as prosecutors in each jurisdiction to ensure adequate pay levels. Public defender caseloads should not exceed the generally accepted standards of the National Legal Aid and Defenders Association. Ethical complaints should be filed with the state bar when lawyers are forced to proceed with too many cases. To ensure high-quality defense services for the poor, there must be performance standards enforced in every jurisdiction - standards that apply both to defender organizations and to individual court-appointed counsel. The standards serve three purposes: education a skeptical public about what it takes to provided capable lawyers, promoting an understanding of why greater funding is essential, and providing notice to the lawyers themselves of what is expected. Federal money to assist defense services should be roughly comparable to prosecutorial funding. COMPENSATION AND VICTIMS Victim services experts should be assigned to assist victims whose mistaken identification testimony turns out to have convicted an innocent defendant. Each state should pass no-fault compensation statures to provide decent relief to those who can prove they were wrongly convicted by clear and convincing evidence. New York's no-fault stature, which permits recovery for past and future pain and suffering and lost wages, should be the model. THE DEATH PENALTY At the very least, follow the American Bar Association recommendations that call for a moratorium on the death penalty and other affirmative reforms, including adequate compensation and resources for death penalty counsel. INNOCENCE COMMISSIONS From state and federal institutions modeled after the Criminal Case Review Commission in the United Kingdom to investigate wrongful convictions. Require the official collection and reporting of data on cases where newly discovered evidence of innocence is the basis for overturning a conviction. Create and fund Innocence Projects at law schools that will represent clients in DNA and non-DNA cases. Fund teaching and research on wrongful convictions, causes, and remedies. AN INNOCENCE NETWORK AT LAW SCHOOLS Last edited by Nic Name; 05-09-2002 at 05:16 PM. |
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05-09-2002, 04:19 PM
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#3 |
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retired
Join Date: Dec 2001
Location: Toronto, Canada
Posts: 1,930
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Barry Scheck has gone on the road to promote The Innocence Project nationally.
At the "National Conference on Wrongful Conviction and the Death Penalty" held in November at Northwestern Law School, Professor Scheck invoked Judge Learned Hand, who in 1923 wrote, "Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream." He called upon colleagues from law schools around the country to establish an "Innocence Network." According to Scheck, the conference, which he helped to organize, is the first step in building a network of faculty members who will take on wrongful conviction cases and/or teach courses that explore the causes and remedies for this vexing problem. "It is our experience that law schools are the last, best hope for those who have viable claims of wrongful conviction. . . These cases are often complex, and they require idealism, energy, and creative lawyering-qualities found in abundance among faculty, students, and administrations at law schools," wrote Scheck in a letter of invitation to law professors throughout the country. "Moreover," he continued, "when even one wrongful conviction is corrected on the grounds of actual innocence, the impact of that case in the jurisdiction where it occurred, and the lessons it teaches about all aspects of the system, are usually profound for all involved." According to Scheck, "we have learned through our work that so much more could be accomplished if law schools throughout the country made a concerted and organized effort to focus on the problem of actual innocence from both a scholarly and hands-on perspective." Source: http://www.cardozo.net/life/fall1998/faculty.briefs/ |
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05-10-2002, 09:23 AM
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#4 |
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Professor
Join Date: Jan 2001
Posts: 1,788
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Actual innocence is not sufficient grounds to overturn a conviction. Sad but true.
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05-10-2002, 10:49 AM
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#5 |
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Cleverly disguised as a responsible adult
Join Date: Jan 2001
Location: Dallas, TX
Posts: 3,338
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I'm getting angry
Just why is it that everybody seems to be worried that death penalty cases were "fairly tried", that the convicted really were guilty, that some shred of doubt might remain that the accused could have been innocent?
Where is this sentiment for all those who are jailed (some for life) who might be innocent? I was jailed and I was innocent. Where was my personal bleeding heart law project searching for DNA samples? Who was there to file motions ad nauseum to delay my trial? Why was there no moratorium on jail sentences to spare me the indignity of strip searches and sleeping with one eye open? And what about my lost wages? And my good name? I'll be forever branded as a felon because my name is now in NCIC and I can't get it removed. Who is going to sue to correct that? Where's my compensation for bills that weren't paid? I'm really getting sick of people telling me that just because there is no possibility of parole from death is sufficient grounds to revisit the case time and again over decades until a stay is granted by some left-wing extremist governor who "just isn't sure"... as if he were on the jury who had to weigh the evidence and convict the creep and sentence him. The governor's job is to sign the warrant and schedule the execution, not review the case to make sure no stone was missed. Sure, it's possible that once in a great while an innocent man (or woman) will be tried, convicted and executed wrongly and I deplore that state of affairs. I think that I'd rather see my tax money go to paying for a good attorney for these cases than for, say, the Tennessee Valley Authority or the Rural Electrification Project. But let's face it... more killers are taken off death row for procedural errors than for innocence. I swear, I need to come up with a whole page of links to information resources that show how an executed killer doesn't kill again, for sure. No more inmates stabbed with a plastic shard, no guards strangled and beaten to death for not allowing illegal conduct to go on. And how the executed criminals really were guilty and how DNA evidence discovered after the fact proved their guilt all the more. And studies showing how much money might be saved by ridding society of people who refuse to live by the rules and endanger the rest of us by their own actions. And I need to go to the grocery store so I can have breakfast. I hate it when I wake up and find that my milk is now gone and I get leftover Tuna Helper to eat instead of my favorite breakfast cereal. Also, I got up on the wrong side of the bed this morning.
__________________
Never be afraid to tell the world who you are. -- Anonymous |
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05-10-2002, 01:20 PM
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#6 |
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Radical Centrist
Join Date: Jan 2001
Location: Cottage of Prussia
Posts: 31,423
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So, because it happened to you and you were innocent and nobody came to your defense -- that means people in similar circumstances, who are going to be killed, should get the same lack of concern?
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05-10-2002, 07:15 PM
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#7 |
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retired
Join Date: Dec 2001
Location: Toronto, Canada
Posts: 1,930
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He's a man of his convictions and he has served time for every one of them.
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05-11-2002, 11:57 AM
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#8 |
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Cleverly disguised as a responsible adult
Join Date: Jan 2001
Location: Dallas, TX
Posts: 3,338
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to clarify
I was not convicted (yet).
But I still have to live with the stigma of arrest and the charges which keep me from owning a gun. I've tested this, so I know well what the rest of the world thinks of me. Or at least the government. I was and will always be innocent of the charges and I wonder why they were even brought when the physical evidence shows this clearly. If I ever get around to developing my film I can even post it to here so you can judge for yourselves. I'll even post a pic of Mikie, Junior, known as Junior for short. He's my Pit/Lab mutt and kind of cute even at six months although he WAS cuter at eight weeks. In the meantime I stand by my opinions on the death penalty. Brian
__________________
Never be afraid to tell the world who you are. -- Anonymous |
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05-11-2002, 12:44 PM
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#9 |
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retired
Join Date: Dec 2001
Location: Toronto, Canada
Posts: 1,930
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It is possible to be in favor of the death penalty and still support the Innocence Project and the Innocence Protection Act of 2001. Of course, experience with such civil liberties causes may change one's views of the death penaly as it is applied, in fact.
Hopefully, someday there will be legislation and procedures in effect that reduce considerably the number of people, actually innocent, who get actually convicted and even actually executed for something they didn't do. Few of us have personal experience of the profound sense of injustice of wrongful accusation. Some here do. This sense, no doubt, increases with wrongful conviction, particularly when the sentence is either life in prison, or worse, death. As some know, and even some of us could experience: conviction is not proof of guilt. Everyone wrongly convicted deserves the empathy and help of others who are free and able. With or without the death penalty, emancipation of the actually innocent but wrongly convicted should be as important an objective of a civilized society as conviction and punishment of the guilty. When there is irrefutable scientific proof of actual innocence, and the wrongly convicted is scheduled to be irrevocably executed pursuant to death penalty statutes intended for the actually guilty, there is a greater sense of urgency and priority to help with the limited resources available for post-conviction review. |
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05-13-2002, 03:30 PM
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#10 |
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Professor
Join Date: Jan 2001
Posts: 1,788
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Hmm. I've been arrested and have bought guns since.
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05-14-2002, 05:29 PM
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#11 |
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retired
Join Date: Dec 2001
Location: Toronto, Canada
Posts: 1,930
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Innocence Project Official Website
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