“Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases” – a major study co-authored by Cookie Ridolfi

“Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases” – a major study co-authored by Cookie Ridolfi

Washington, DC (Nov. 17, 2014) – Today, at the National Press Club in Washington, DC, The National Association of Criminal Defense Lawyers (NACDL) is officially releasing its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara University School of Law. Today’s event will feature comments by NACDL President Theodore Simon, and special guests David W. Ogden, former Deputy Attorney General who is now a partner at the WilmerHale firm, and the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals. The report’s co-authors – VERITAS Initiative Director and Professor Kathleen “Cookie” Ridolfi, NACDL White Collar Crime Policy Counsel Tiffany M. Joslyn, and VERITAS Initiative Pro Bono Research Attorney Todd H. Fries– will also be discussing their findings and recommendations. Watch the C-Span stream of the press conference.

“This groundbreaking study documents one of the major problems facing the nation’s criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person,” NACDL President Theodore Simon said. Read full post at …

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The Veritas Report on Prosecutorial Conduct


The Veritas Report on Prosecutorial Conduct

The American Bar Association states the prosecutor has a duty different from other advocates- not to simply convict, but to seek justice. While many prosecutors conscientiously do their job with the integrity, there are some that commit misconduct. Ways in which a prosecutor can commit misconduct include improperly examining witnesses, making improper arguments to a jury, withholding exculpatory evidence from the defense, intimidating witnesses, presenting false evidence, discriminatory jury selection, or violating the defendant’s Fifth Amendment right to silence.
While some safeguards exist to protect defendants from the misconduct of prosecutors, these rules must be enforced. As studies show, prosecutors are rarely publicly disciplined for their misconduct. Accountability is the first step towards curbing prosecutorial misconduct.

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Innocent Man Released From Prison After Spending 42 Years For Arson Conviction

Faulty fire science has contributed to another wrongful conviction. Louis Taylor, who spent 42 years in prison wrongfully convicted of setting a hotel fire in 1970 that killed 29 people in Tucson, Arizona, was released last Tuesday.

New methods of the investigation showed that there was no evidence of arson as the cause of the 1970 hotel fire. Through the help of lawyers who worked with the Arizona Justice Project, Taylor was released after pleading no contest to 28 counts of murder.
Taylor emotionally stated after his release, “It’s a little kind of overwhelming. But I’m free, that’s the important thing.”

Read the full storyhere.

Read about an ongoing NCIP arson case on page 8 and 22 of our recent newsletter.

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Texas Man to Get Retrial Due to Faulty Fire Science

A Texas court reversed Ed Graf’s murder and arson convictions this week after experts determined that the science used to convict Graf was likely faulty. While the court declined to issue a finding of actual innocence, it did say, “False expert testimony at [Graf’s] trial violated his due process rights.”

Graf has been serving a life sentence for the deaths of his two stepsons in a backyard shed fire in 1986. The original investigation determined that the fire was arson based on charring patterns that suggested a quick fire using an accelerant. However, experts now say that the fire could have been accidental and the charring patterns could be the result of a “flashover,” which occurs when a fire escalates to the point engulfing the whole room. “Flashovers” leave similar burn patterns as fires using accelerant. The experts also found a high amount of carbon monoxide in the boys lungs which suggests a slower burning fire.

Graf’s case was one of several flagged for reinvestigation by the new state panel due to the recent advances and changes in understandings in fire science. The panel of six experts is a joint effort between the Innocence Project of Texas and the State Fire Marshall Chris Connealy. They begin reviewing cases next month.

Prosecutors will likely elect to retry Graf who they claim was acting suspiciously before and after the fire.

Read more here.

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Maryland Legislature Votes to End Death Penalty

Last week the Maryland House of Delegates passed a bill to replace the death penalty with life without the possibility of parole. The bill, which passed by an 82-56 margin, now goes to the desk of Governor Martin O’Malley, who has said he will sign it.

Maryland already severely limited death penalty to only violent crimes where one of three factors existed: DNA evidence, a videotaped confession or a videotaped murder. Opponents of the current bill used the restrictions as a reason why eliminating the death penalty was unnecessary. Baltimore County state attorney, Scott Shellenberger, told CNN that Maryland’s capital punishment policy was “one of the most restrictive in the country.”

However, that did not deter the passage of the bill eliminating the death penalty. Governor O’Malley lauded the bill saying, “To govern is to choose, and at a time where we understand the things that actually work to reduce violent crime, when we understand how lives can be saved, we have a moral responsibility to do more of the things that work to save lives.”

Maryland has only executed five people since 1976 and currently has five inmates on death row. Governor O’Malley will make case-by-case decisions about the five death row inmates. Maryland will become the sixth state to end the death penalty in as many years and the 17th jurisdiction in the nation.

Read more here.

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D.C. Changes Eyewitness Identification and Informant Policies

Courts and police in the District of Columbia will be changing their policies on eyewitness identification and informants after several wrongful convictions. The changes come at the recommendation of a task force created by D.C. Superior Court Chief Judge Lee F. Satterfield.

The changes include keeping trial records permanently rather than destroying them after ten years so that even defendants convicted many years ago can have the chance to challenge their convictions. Courts will also give criminal defendants any information relating to police informants at least two weeks before trial. The previous standard was only a few hours before trial. Police will begin “blind” administration of photo lineups where the person presenting the photos does not know which photo is the suspect.

Judge Satterfield created the task force to study  best practices after three exonerations occurred in the District within the last three years. U.S. Attorney Ronald C. Machen Jr. welcomed the changes as did Barry J. Pollack, president of the board for the Mid-Atlantic Innocence Project. The 14-member task force will continue to meet twice a year to review issues and act as an ongoing “innocence commission.”

Read the full story here.

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Texas Judge Faces Rare Court of Inquiry for Involvement in Wrongful Conviction

Judge and former prosecutor Ken Anderson took the stand in his own defense Friday capping a week-long hearing into whether Anderson should face criminal charges for failing to disclose evidence that exonerated Michael Morton of his wife’s murder.

Morton spent 25 years in prison before DNA evidence exonerated him in 2011. Morton’s lawyers claim that Anderson, who prosecuted the case, withheld the transcript of an interview with Morton’s then three-year-old son who witnessed the murder. This crucial piece of evidence could have prevented Morton’s wrongful conviction because the son described the perpetrator as someone other than his father.

Anderson testified for six hours and repeatedly defended his decisions while prosecuting Morton. He became indignant at the accusations he has faced during the past 18 months since Morton was exonerated. Rusty Hardin, the appointed attorney for the state, repeatedly asked Anderson about the evidence and was incredulous when Anderson responded that he couldn’t remember.

Anderson’s testimony ended a week of sometimes dramatic and emotional testimony from many witnesses including Morton’s trial lawyers, a former assistant district attorney and Michael Morton. Judge Louis Sturns, appointed by the Texas Supreme Court to oversee the hearing, will now consider the evidence and will most likely rule later this spring.

Morton was disappointed by Anderson’s responses telling reporters outside the courtroom, “I was hoping for more. I think we saw someone who is still struggling with denial and anger.”

Read more here.

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10 Advances in Reducing Wrongful Convictions in 2012

Author and contributing editor to the Wrongful Convictions Blog Nancy Petro wrote a great article on the progress toward improving our criminal justice system made in 2012. She highlighted ten notable advances:

  1. Twenty-two exonerations were won in 2012 according to the annual report by the Innocence Network.
  2. The National Registry of Exonerations launched May 21, 2012 has raised awareness on the scope of wrongful convictions by providing a searchable, up-to-date database on exonerations.
  3. The Wrongful Convictions Blog provides an international forum for news about issues surrounding wrongful convictions around the world.
  4. The Prosecutorial Oversight Coalition (made up of the Northern California Innocence Project and its policy-arm the Veritas Initiative, the New-York based Innocence Project, the Innocence Project of New Orleans and Voices of Innocence) held a six-state tour highlighting prosecutorial misconduct and elevated the discussion on accountability nationwide.
  5. Texas launched a rare inquiry that could result in former prosecutor and current district judge Ken Anderson being criminally charged for his role in the wrongful conviction of Michael Morton.
  6. New innocence clinics planned and established in the United States and internationally. New projects were established in the Philippines and Chile joining other international projects in the United Kingdom, Australia and The Netherlands.
  7. In July 2012, the New Jersey Supreme Court issued new guidelines regarding eyewitness identification testimony stating that juries must be told that many different factors can affect the accuracy of identifications and memory.
  8. The growing public awareness of wrongful conviction played a role in the 2012 election cycle where district attorneys had to answer for their views on wrongful conviction and prosecutorial accountability.
  9. The Virginia Department of Forensic Science began testing hundreds of old rape and homicide case DNA evidence resulting in the exoneration of 38 people so far.
  10. New understanding in forensic science, especially in the areas of arson and shaken baby syndrome, have drawn attention to potential wrongful convictions based on bad scientific evidence.

While many innocent people still await justice, these advances give us hope that we are moving toward a more fair, honest and transparent criminal justice system. Reforms and best practices are slowly but surely being enacted and the awareness of wrongful convictions keeps rising. Let’s hope that 2013 will see even more progress toward the elimination of wrongful conviction.

Read Nancy Petro’s full article here.

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Despite nine exonerations, Orange County eyewitness identification policies remain unchanged

On November 30, 2012, Alfonso Gomez became Orange County’s ninth exoneration based on eyewitness misidentification, according to the National Registry of Exonerations. During Gomez’s trial, deputy district attorney Howard Gundy told the jury that the two witnesses who identified Gomez as the shooter were “righteous” and “certain.” Both Gundy and the witnesses were wrong.

Eyewitness identification mistakes remain a hefty cause of wrongful convictions. California has seen 46 total exonerations based on eyewitness misidentification and nationally 42 percent of all exonerations since 1989 have involved eyewitness errors, according to the National Registry of Exonerations.

Yet, Orange County law enforcement still has not adopted best practices for eyewitness identification procedures. Out of the seven jurisdictions to have an exoneration based on eyewitness misidentification (Santa Ana, Orange, Costa Mesa, Newport Beach, Tustin, Buena Park and Fullerton) only Buena Park has since enacted eyewitness reforms according to a survey by the Orange County Register. In September, Buena Park police department adopted double-blind and sequential practices for lineups which drastically reduces unintentional cues which can direct witnesses to pick a certain suspect. Buena Park’s police training coordinator, Corporal Andy Luong, told the Register, “It made a lot of sense to us. It made the process a lot cleaner and we believe it maintains the integrity of the cases and there is less chance of a case being tainted.”

Read the full story here.

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Kentucky Lawmaker Hoping to Expand Post-Conviction DNA Testing

Rep. Johnnie Bell (D-Glasgow) is again proposing his bill to expand post-conviction DNA testing hoping that the legislation will finally make it through the legislative process in the 2013 session. Bell has proposed similar bills three times, one of which made it past the House of Representatives before dying in the Senate.

Bell’s bill expands post-conviction DNA testing to any defendant currently incarcerated or on parole provided they can show a reasonable probability that the DNA tests would exonerate them. Currently, only those on death row are afforded access to testing. The new legislation would expand the list of eligible defendants to anyone convicted of a capital offense or violent felony.

Federal funds would be available to those who qualify for aid from the Department of Public Advocacy but those who do not can still apply for testing at their own expense. The Department of Public Advocacy has listed Bell’s legislation as one of its priorities for the new Congress and will review the testing applications should Congress enact the bill.

Bell spoke to The Daily News about the legislation saying, “I really don’t know if this time will be different. Sometimes you just have to be persistent.”

Read more here.

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