Conviction Integrity Units: An Interesting Example in Brooklyn

I’ve written before about Conviction Integrity Units (CIUs) in prosecutors’ offices (take a look here and here).  CIUs are groups of lawyers within prosecutors’ offices — just like a major crimes unit or a narcotics unit, though probably much smaller than either of these — with the job of investigating questionable past convictions from that same office.  CIUs do this when presented with evidence that raises real doubts about the guilt of a convicted defendant in one of the office’s past cases.

The first CIU was established by Dallas DA Craig Watkins, who had then just been elected against a backdrop of more than 20 exonerations of people wrongfully convicted under the past leadership of his agency.  (The latest story about Watkins and the exoneration of wrongfully convicted people in Dallas — examining a fascinating twist on exonerations — is here.)  Just a couple of years later, Patricia Lykos, then the newly elected DA in Houston, established a CIU in her office.  From Texas, the idea has begun to spread.

Both the Dallas and Houston CIUs have one thing in common: they were launched by new DAs to investigate cases that originated under former administrations.  No doubt this is easier than investigating mistakes that have happened under one’s own watch.

That’s what makes this story out of the Brooklyn DA’s office so interesting.  Charles Hynes, the elected DA of Brooklyn, established a CIU that will be looking at cases in which prosecutors obtained convictions during his own six terms in office.  For example, at the end of March, David Ranta, 58, was released after spending 23 years in prison for the killing of a rabbi in Williamsburg, Brooklyn.  The original conviction came under Hynes’ leadership; when Ranta was released, Hynes gave credit for the release to his CIU.

CIUs accomplish something very fundamental: they make the task of uncovering mistakes in the justice system into a routine operation.  On the other hand, as readers of this blog have correctly pointed out, CIUs are a lot like internal affairs divisions in police departments: the DAs are investigating themselves.  This is easier to credit when the head of the office is not the same person who was at the helm when the mistakes were made.  It is also why CIUs  are still rare when the head of the office has been serving a long time — long enough to be the one responsible for the mistakes under investigation.

What the National Registry of Exonerations Report Says About Law Enforcement Resistance to Science

The National Registry of Exonerations, a joint project of the law schools at University of Michigan and Northwestern, reported last week that in 2012, law enforcement cooperated in some way in a higher percentage of cases than in the past.  Does this mean less resistance of science by law enforcement?

The answer is that we can’t tell from this data.  But the report is worth looking at nonetheless.

Here is what the report says about law enforcement cooperation (I have removed the bullets, spacing, etc.):

In  2012 there was a dramatic increase in the number and the proportion of exonerations that prosecutors or police participated in obtaining.  Of the 63 exonerations in 2012, prosecutors or police initiated or cooperated in 34, or 54%. Over the past 24 years, prosecutors and police have cooperated in 30% of the exonerations we know about (317/1050). Last year for the first time they cooperated in a majority of exonerations, and the number of such cases is a large increase from the previous high (22 of 57 in 2008, or 39%).

This is all to the good.  But there are some aspects of the findings that counsel caution.  First, the author(s) of the report freely admit they don’t know why  this is happening.  It could have many causes.

This increase [in cooperation] may be due to a confluence of related factors: changes in state laws that facilitate post-conviction DNA testing, the emergence of Conviction Integrity Units in several large prosecutorial offices, and, perhaps, a change in how law enforcement officers view the possibility of false convictions at trial.

And just to be clear, it’s good that they admit that it’s not clear what the cause or causes could be.  Too often, those working with statistics take an opposite tack.

As far as resistance to science, however, the report may indicate that the cases where science and forensics matter most still do not get cooperation for law enforcement.  The first clue is that 57% of the exonerations in 2012 were homicide cases, and another 24% were sexual assaults — 81% in all.  These are the types of cases in which resistance science on eyewitness identification, interrogation, and  forensics can matter the most.  These cases also have the highest public profile.  And there, perhaps, is the rub: “Official cooperation is least common among exonerations for highly aggravated and publicized crimes – murders with death sentences and mass child sex abuse prosecutions – and most common among exonerations for robberies and drug crimes.”

The best way to answer whether this increased cooperation represents any lessening of the resistance to science would be to look at the individual exoneration cases for 2012: do they feature law enforcement cooperation over these science-based issues, or is it something else — for example, information on a witness interviews illegally withheld from the defendant in a previous trial?

Perhaps we will see that in the next report from the Registry.

The Failed Evidence of Arson: Science Begins to Catch Up, and a Man is Freed After 42 Years

When I’m in Cincinnati for talks on Failed Evidence tonight, April 4, at 7:00 pm at the Clifton Cultural Arts Center and tomorrow, April 5, at noon at the University of Cincinnati School of Law, one topic sure to come up is an article from the April 3 New York Times, “Advances in Science of Fire Free a Convict After 42 Years. ”   Louis Taylor was serving 28 life sentences for the deaths caused by a fire in a Tucson, Arizona hotel in December of 1970.  Taylor, then just 16 years old, was convicted of arson based on faulty forensic science.

Mr. Taylor has been release from prison.  He is now 58 years old.

The story highlights the state of arson investigation, past and present.

A few years ago, the National Academy of Sciences turned its attention to the misuse of science in courtrooms, saying that pseudoscientific theories had been used to convict people of crimes they may not have committed. By then, a small group of fire engineers had already begun to discredit many of the assumptions employed in fire investigations, like the practice of using the amount of heat radiated by a fire to assess if an accelerant had been used.

Unlike DNA evidence, which can exonerate one person and sometimes incriminate another, the evidence collected in some arson investigations does not yield precise results. Often much of the evidence has been lost or destroyed. In the case of the hotel fire here, all that is left are photographs, reports and chemical analysis, all of them assembled to prove arson.

As a result, “we can’t definitely say what really caused the fire,” said John J. Lentini, a veteran fire investigator who wrote a report on Mr. Taylor’s case. “But what we can do is discredit the evidence” used to support the charge.

The case recalls the story of the trial and execution of Cameron Todd Willingham in Texas, executed in 2004 for the deaths of his children in a fire.  Experts call the arson in that case terribly flawed — just as in Mr. Taylor’s case.

The science surrounding investigation is light years ahead of where it used to be, even a decade ago.  It’s time that all of the old cases in which verdicts depended on outmoded and discredited methods of arson investigation be re-examined, and if necessary overturned.

“Failed Evidence” Discussions in Cincinnati, April 4 and 5

On Thursday April 4, and Friday April 5, I’ll be in Cincinnati for two discussions of Failed Evidence: Why Law Enforcement Resists Science (2012).  Both are free and open to the public.

On April 4, I’ll be discussing the book at 7:00 p.m. at the Clifton Cultural Arts Center, 3711 Clifton Avenue, Cincinnati OH 43220.  The event is sponsored by the ACLU of Ohio.

On April 5, I’ll present at talk at the University of Cincinnati College of Law at noon.  The address is  2540 Clifton Ave, Cincinnati, OH 45221.  The event is in Room 114.  The event is sponsored by the Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project.  The event has been approved for CLE credit for attorneys.

Supreme Court: Drug Detection Dogs Used at a Home Require a Warrant

On November 5, I posted here about Florida v. Jardines, in which the U.S. Supreme Court would decide this question: when a police officer takes a dog trained to sniff for drugs onto the porch of a home to sniff the air coming from under the door of a house, does this action constitute a search under the Fourth Amendment?  If the answer was yes, this would mean that police would need a warrant from a court before bringing the dog up to the door.  In past cases, the Court had given police considerable leeway to use dogs; no warrant had been required before having the dog sniff a piece of personal luggage (the Place case is here) or a package addressed to someone (the Jacobsen case is here).

The Court has now issued its opinion in Jardines: bringing a drug-sniffing dog up to a home is a Fourth Amendment search, and requires a warrant.  The author of the opinion was Justice Antonin Scalia, which may surprise those who think of Scalia as the author of the Court’s most conservative cases.  But it should not shock anyone.  The case follows the pattern of one of Scalia’s opinions from 2001: Kyllo v. U.S.  In Kyllo, the police used a thermal imager on a home; the device detects patterns of heat, and the police used it to see considerable excess heat coming from the defendant’s home, which indicated the presence of a marijuana growing operation inside.  According to Scalia, this required a warrant because the target was a home, which is where people conduct their most intimate activities.  The imager, used from outside, was designed to detect activity inside.  Any method of “seeing” inside the home, Scalia said, requires the judicial oversight of a warrant obtained prior to the search.

Scalia used some of the same reasoning in Jardines.  Yes, the dog was outside the home.  And it is true that many non-family members have implicit permission to come onto the porch of the home, right up to the door: letter and package carriers, delivery people, and even police officers wanting to talk to the homeowner.  But the dog is there specifically to detect activity inside the home, and that is more like the thermal imager than someone delivering mail.  Folding this reasoning around the Court’s rediscovered interest in the law of trespass,  Scalia said the presence of the dog is an intrusion that the Fourth Amendment doesn’t permit without a warrant.

Jardines does not put dog sniffs of homes off limits to police.  Rather, police must first demonstrate to a judge that they have probably cause to believe that there is criminal activity the dog could detect inside the house.  Probable cause  is one of the lower legal standard in the law; it does not require anything close to proof beyond a reasonable doubt.

On the 50th Anniversary of Gideon, Part II: How We Provide Counsel for the Defense of the Indigent Accused

In a post here last week about the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, I asked why the Constitution requires the state to pay for a lawyer for defendants who cannot afford a lawyer.   Here, we move on to another question: how does our society shoulder this burden?

We can answer that question in two ways.

The first answer is really an evaluation: we do not do it very well.  I kept my eyes open for stories about Gideon in the media and on the web in the last couple of weeks, and I found none saying that we were doing a great job.  Instead, the picture was bleak almost everywhere.  The New York Times’ recent stories on Gideon (here and here) were typical, recounting stories of people whose difficulties were made worse by inadequate or non-existent legal defense.   At the local level in the city where I live, the newspaper ran a lengthy negative story (here) about public defense services in our region and our state.

The second way to answer the question is structural.  How are publicly-funded criminal defense services delivered in the U.S.?  According to the American Bar Association’s Criminal Justice Standards for Defense Function, there are three basic models, and sometimes they are used in combination.  They are:

* Defender offices — These are public agencies, funded by government.  The lawyers who work in these agencies are salaried, sometimes with outside non-criminal law practices on the side, and sometimes not.  (The better rule is to prohibit these outside practices.)

* Court appointment systems — In these arrangements, courts appoint private lawyers to represent the indigent from a list that lawyers voluntarily join.  In most places, lawyers perform this work for a low flat fee per case.  This creates negative economic incentives for the lawyers to spend adequate time on the cases.

* Contract systems — In these systems, counties bid out all of the year’s criminal defense work to an individual lawyer or a law firm.  Despite the fact that the existing national standards mandate that these contracts not be awarded on the basis of the lowest bid, that is often how these arrangements are made.  The economic incentives in contract arrangements are, if anything, even worse than in court appointment systems.  Court appointment systems can also leave lawyers beholden to the appointing judges, sometimes intimidating the lawyers out of the necessary zealous representation.

The best practice is the establishment of an independent defender office, with the use court-appointed lawyers to take caseload overages and cases in which there are multiple defendants needing separate lawyers.

But in truth, all of these systems suffer from very basic problems.  There’s no political constituency in the U.S. that favors more funding for criminal defense, and few politicians are willing to stand up and say that we can’t have a functioning justice system based on adversary presentation of evidence unless we pay for it.  So, while there are some very good public defense operations in some places, we constantly see:

* chronic under-funding of defense agencies;

* crushing caseloads, far too large for any lawyer to do a competent, ethical job;

* little or no resources available for necessary non-lawyer services, such as investigation, expert witness services, and the like;

* governance structures for public defense that undermine the independence of the agencies;

* no resources for lawyer training;

* no continuity of representation for defendants through the pretrial and trial process; and

* unnecessary and sometimes lengthy waits for legal services, even for defendants in custody.

I don’t want to seem unduly negative.  There are some very good public defense agencies out there, and many thousands of dedicated lawyers who work in them.  But we, as a country, simply do not do enough to fulfill this important obligation.    And when we don’t, it isn’t just a matter of the accused not getting the services they should.  What’s happening is more basic: we are giving short shrift to our own values, and to our Constitution.  And there’s no way to square that with the idea that we are the fair people we think we are.

NPR Story on Faulty Forensics and Criminal Justice: Failed Evidence Again

A story on National Public Radio highlights one of the central themes of”Failed Evidence: how does the criminal justice system react to advances in science that throw past convictions into doubt?  The answer will not surprise readers of this blog or Failed Evidence: they resist.

The story concerns the case of William Richards, convicted in 1997 of murdering his wife.  The conviction came in a fourth trial, after two hung juries and a mistrial failed to result in a verdict.  In the fourth trial, the prosecution introduced new evidence: testimony by a forensic dentist, who said that marks seen in a photograph of the victim’s body were human bite marks .  The marks, he said, were unusual enough that they were likely to have been made by the defendant’s distinctive teeth.   Ten years later, another forensic dentist corrected a distortion in the photo of the marks, using photo editing software.  Now, the first forensic dentist says the marks weren’t from human teeth at all, and he says that he should not have testified as he did.  Yet the defendant remains in prison, serving 25 years to life.

There’s a lot that is familiar here — too much.

First, the idea that bite mark identification should ever play a role — let alone the key role — in convicting someone and sending them to prison is just intolerable.  I have posted about the weakness of bite mark analysis before (here), and Richards’ case demonstrates the point all over again.  The forensic dentist who put Richards in prison testified that the bite mark (that turned out not to be a bite mark) was so distinctive that he estimated that only one or two out of a hundred people could have made it.  The idea that such an estimate — not at data-based study, but his personal estimate — of such a low probability could ever be considered for admission in a court should make everyone shiver.

Second, the story gives us the reaction of Jan Scully, past president of the National District Attorneys Association and the elected District Attorney of Sacramento County, California.  Scully says there is something more important than the fact that the central evidence in the case has been fatally undermined.  According to the NPR story:

“We need to have finality of verdicts,” she says. “There is always a new opinion or there might be a refinement in our forensic science areas. So, just because something new occurs doesn’t mean that the original conviction somehow was not valid.”

In other words, it’s the same old story from the NDAA: there is no significance to the demonstrated falsity of the “science” that was used to put a man in prison.  It is more important for the verdict to remain undisturbed.

It’s hard to imagine a story that captures the ideas in Failed Evidence more strongly.  Go to the story, and check it out.