Illinois Prosecutor Starts Term Off Right by Creating Case Review Panel

Right after being sworn in as the new Lake County State’s Attorney, Mike Nerheim announced he is creating an independent Case Review panel. The panel, which will be appointed by Nerheim, will review criminal cases where there is a question of wrongful conviction and identify best practices for investigating and prosecuting criminal cases in the future.

Members of the all-volunteer Case Review Panel will be sworn in as special assistant state’s attorneys and meet quarterly. The panel will consist of a diverse group of people including a former Illinois assistant attorney general, a retired judge and a pastor.

Nerheim modeled his Case Review Panel on a similar program in North Carolina. “It is my hope that based on the future success of our work in Lake County, that this will be the impetus to institute similar solutions across Illinois,” he said at the announcement.

Read more here.

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Oregon Supreme Court Changes Game in Eyewitness Identification

The Oregon Supreme Court unanimously ruled earlier this month to change the way that eyewitness identification can be used in criminal trials. The ruling shifts the burden of proof to prosecutors. The prosecution must now show that identification evidence is sufficiently reliable before it is admissible at trial. This represents a wide departure from the previous legal standard which allowed courts to assume eyewitness identifications were reliable unless the defendant could prove otherwise.

Mistaken eyewitness identification is one of the leading causes of wrongful conviction and there have been countless scientific studies in recent years proving the fallibility of memory and witness accounts.

The Oregon Supreme Court also ruled that even if the state can prove an identification is reliable, the court may still bar the evidence if the defendant provides enough evidence of “suggestive police procedures.” The court said, “Because of the alterations to memory that suggestiveness can cause, it is incumbent on courts and law enforcement personnel to treat eyewitness memory just as carefully as they would other forms of trace evidence, like DNA, bloodstains, or fingerprints, the evidentiary value of which can be impaired or destroyed by contamination.”

In addition to issuing the ruling on eyewitness identifications in general, the court also found that a new trial was warranted in one of the two cases involving identification procedures. The defendant had been found guilty of shooting a husband and wife at a campground. The husband died but the wife survived and two years later identified the defendant after seeing him at a pretrial hearing. The court found that this identification was highly suggestive and the wife was under great stress at the time of the crime making her memory unreliable.

Read the full article in The New York Times here.

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Texas State Bar Files Charges Against Former Prosecutor for Conduct in Michael Morton Case

The State Bar of Texas has filed disciplinary charges against Former Texas District Attorney Ken Anderson after the Texas Supreme Court ordered an inquiry into Anderson’s conduct in the Michael Morton case.  Anderson is charged with hiding exculpatory evidence, concealing case records, and blocking access to DNA tests and could face career-ending sanctions. Read more:
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Watch the Prosecutorial Oversight Forum Live here:

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SPECIAL NCIP EVENT: Exonerated Ex-Prisoners to Discuss Prosecutorial Misconduct and Accountability at a Panel Discussion Oct. 11 at Santa Clara University School of Law

What: On Oct. 11, two men who spent a cumulative 35 years behind bars for crimes they did not commit –one coming within days of execution – will be among the featured speakers at the final stop of a nationwide “Prosecutorial Oversight Tour.” The six-city tour was conceived to address the need for policy reforms to prevent prosecutorial misconduct, and has generated productive dialogue across the nation among lawyers, judges and state bar members.

The tour is making its final stop at Santa Clara University School of Law, where Louisiana’s John Thompson and Northern California Innocence Project (NCIP) client Obie Anthony will speak about their cases.  In 2011 the US Supreme Court stripped Thompson of $14 million in damages awarded him by a civil jury for prosecutorial misconduct.  The Supreme Court in Connick v. Thompson, granted prosecutors absolute immunity for their misconduct. Thompson has since been advocating for accountability for prosecutors. Anthony was exonerated after his wrongful conviction which was based largely on prosecutorial misconduct. He spent 17 years behind bars for a crime he didn’t commit, and since his release he has been educating the public about wrongful conviction and the importance of prosecutorial accountability.

In addition, Professor Cookie Ridolfi will present the 2011 update of “Preventable Error: A Report on Prosecutorial Misconduct in California, the most extensive statewide study ever conducted on the issue.

When: Oct. 11 from 1 p.m. to 3:30 p.m.

Where: Santa Clara University’s Recital Hall, 500 El Camino Real, Santa Clara, Calif., 95053

Who: The tour has brought together participants from all facets of the criminal justice system to address systemic and legal approaches for reducing prosecutorial error and misconduct, with the goal of reducing the number of wrongful convictions. The Northern California Innocence Project event at Santa Clara University is the only stop of the tour in California.

Other featured panelists will include:

  • Santa Clara County District Attorney Jeff Rosen  and Santa Clara County Special Assistant District Attorney David Angel, Head of the Conviction Integrity Unit
  • Santa Clara County Superior Court Judge James Emerson (Ret.)
  • Tom Nolan, well-known defense attorney
  • Robin Brune, Senior Trial Counsel, CalBar
  • Kathleen “Cookie” Ridolfi, executive director of NCIP and  a leading scholar on the issue of prosecutorial misconduct, authored the groundbreaking report, Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009
  • KQEDs Rachael Myrow, host of “The California Report” will moderate

The tour is sponsored by the Prosecutorial Oversight Coalition which includes Santa Clara Law’s Northern California Innocence Project and the Veritas Initiative, its policy center; the Innocence Project; the Innocence Project of New Orleans; and Voices of Innocence. At the tour’s conclusion, the coalition will prepare a report with recommendations for reform.

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Virginia Judge Overturns Conviction of Man Facing Deportation

Maligie Conteh, a 22-year-old Virginia man, was facing deportation back to his homeland of Sierra Leone due to his 2009 robbery conviction. However, the Fairfax County judge who presided over Conteh’s trial reversed himself and overturned the conviction Thursday, saying that prosecutors failed to disclose evidence that cast doubt on the credibility of the only witness.

Conteh, who maintained his innocence from the beginning, served more than a year in prison before being taken into custody by immigration officials after his release. He was in the United States legally and hoping to join the Marine Corps before his arrest but faces deportation because of the conviction.

Circuit Court Judge Randy L. Bellows ruled that prosecutors failed to turn over evidence that the only witness, the victim, had a conviction for possessing a fake Social Security card. Bellows said that conviction undermined his confidence in his own 2010 verdict.

Conteh’s supporters, which includes the Innocence Project of the University of Virginia, lawyers from the firm of McGuire Woods, and the staff director for the U.S. Senate Finance Committee, also uncovered evidence that bolstered Conteh’s original alibi. Conteh claimed that he was on a friend’s computer using Facebook at the time of the robbery. The victim called police at 6 p.m. on the night of the crime. Conteh’s team combed through Facebook records and found a photo and a message posted on Conteh’s Facebook account at 6:09 p.m. and 6:11 p.m. respectively. Conteh’s attorneys argued that it would have been impossible for Conteh to commit the robbery, run over a mile to his friend’s house, dispose of the stolen property, and bike back to the crime scene where the victim pointed him out to police.

Judge Bellows gave prosecutors until Sept. 28 to decide whether to retry Conteh for the robbery.

Read more here.

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Study Finds New Technique for Reducing Eyewitness Identification Problems

In a new study, published in the Psychological Science journal, Neil Brewer of Flinders University and his team discovered a new type of lineup that produced identifications 20 to 30 percent more accurate than conventional lineups.

The new lineup, based on “deadline confidence judgments,” presents witnesses with photos one at a time and asks them to rate how confident they are that the person in the photo is the perpetrator. Researchers also forced the witnesses to make decisions very quickly without a lot of time to think about their assessments.

Brewer explained, “A weakness of the traditional test lies in the fact that it requires a witness to make a single ‘yes’ or ‘no’ decision about a lineup, with plenty of time to reflect on their decision.” The new lineup technique eliminates a number of external factors such as constraints on attention, unintentional social cues, and pressure associated with picking the right person. With deadline confidence judgments, the witness does not have to provide a black and white, yes or no answer.

Read more here.

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Chicago’s New Conviction Integrity Unit Frees First Person

Alprentiss Nash, 37, became the first person to have their conviction overturned solely by the Cook County State’s Attorney’s Office new Conviction Integrity Unit. State’s Attorney Anita Alvarez created the unit in February and after a re-investigation of Nash’s case, prosecutors asked a judge to vacate his murder conviction.

Convicted in 1997 of armed robbery and murder, Nash was eventually exonerated through new DNA evidence, a comprehensive investigation of old police records and interviews with witnesses.

Nash’s attorney, Kathleen Zellner, applauded Alvarez telling the Chicago Sun Times, “It’s courageous of her to do this. There are other cases where there’s been DNA results, and different counties still have not acted, or released the person. So we’re extremely excited.”

Nash said, “Well I’m shocked. Finally I’m getting justice. But I’m not mad at anybody. I just want to get on with my life.”

Read more here.

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Los Angeles Police Department Resists Changes to Eyewitness Identification Procedures

Studies show that eyewitness identifications can be notoriously unreliable unless conducted using known best practices such as blind administration and sequential presentation. However, the Los Angeles Police Department is still reluctant to enact reforms that have been sweeping the nation in recent years.

The Los Angeles Times recently had several transcripts from eyewitness interviews recorded by two Los Angeles detectives reviewed by identification experts. Scientific research suggests that investigators can unintentionally influence witnesses through seemingly insignificant comments such as telling a witness to take their time.

In the case of Marlon Morales, LAPD detectives presented the witness with a photographic lineup including six pictures with their suspect, Morales, in the fourth slot. The witness first picked the third photo. The detective told her to keep looking and she eventually picked the fourth and sixth photos. According to the transcript, the detective then said, “I kept seeing you go to four… Was [there] a reason you kept comparing everybody to No. 4?” The detective also showed the witness a separate picture of the suspect in the fourth slot. The witness picked four as the perpetrator and still to this day believes Marlon Morales was the murderer even though he was eventually acquitted.

Roy Malpass, a recently retired psychology and criminal justice professor at the University of Texas, El Paso, reviewed the transcript of the Morales identification. Malpass described it as “the most amazing example of bias I’ve ever read.” LAPD Deputy Chief David Doan agrees that showing the witness a separate photo of the suspect was suggestive but Chief Charlie Beck maintains that the detectives assigned to the case have the best chance of building a rapport with their witnesses and recognizing when a witness is holding something back.

David Angel, head of the Santa Clara District Attorney’s conviction integrity unit, disagrees. He told Times, “If you can tell juries that you have done everything you can to minimize mistakes, it’s only going to help your case.” Santa Clara county instituted eyewitness identification reforms over 10 years ago. Police in Denver and Boston have changed their lineup policies as have New Jersey, Connecticut, North Carolina and Texas. Just last month Virginia recommended its law enforcement agencies use best practices.

However, in California, many law enforcement agencies, including the LAPD, are still opposed to uniform guidelines and reform policies.

Read the entire Los Angeles Times article here.

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Prosecutors Dismiss Charges Against Virginia Man

Michael Wayne Hash walked out of the Culpeper County courthouse a free man with his murder conviction and life sentence dismissed. The judge ruled that Hash’s actual innocence claim had merit and his conviction was infected with police and prosecutorial misconduct, including coaching witnesses and failing to disclose a plea deal with a key witness. Hash was released on bail earlier this year but still was not completely free until recently, when his conviction was finally dismissed.

Hash was convicted of the killing of Thelma Scroggins in 2000. Only, 15 years old at the time of the crime, Hash maintained his innocence and there was no physical evidence tying him to the murder. He was convicted on the basis of two witnesses including a jailhouse informant who claimed Hash confessed to the crime.

However, after the Mid-Atlantic Innocence Project began investigating the case, new information began to put cracks in the witnesses’ credibility. The former sheriff and prosecutor on the case had moved Hash to another prison for the sole purpose of exposing him to the jailhouse informant. Investigators also provided crime-scene information to another witness to guide their answers to questions.

After the federal judge overturned Hash’s conviction, a special prosecutor from the Fairfax County Commonwealth Attorney’s Office was appointed to determine whether to retry Hash for the murder of Thelma Scroggins. Recently, that prosecutor, asked the court to dismiss the charges but told the Washington Post, that there is still an ongoing investigation and would not rule out re-charging Hash in the future.

Hash is relieved to finally be free but the reality still had not fully set in. He told the Washington Post, “I sat in prison 12 years planning out everything I could do [when released]. [Now,] honestly, I don’t know.” Hopefully, he can enjoy his new freedom and begin rebuilding his life.

Read more here.

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