Posts Tagged ‘criminal justice reform’

Those of you who follow this blog have read (e.g., here and here) about conviction integrity units (CIUs): small groups of attorneys in a district attorney’s office who have the mission of investigating claims of wrongful  convictions in past cases tried by that same office.  These units, just like homicide units, major crimes units, or others in the DA’s office, are dedicated to one type of work: investigating claims of wrongful conviction.  grity work.

The first conviction integrity unit in the country was established by Dallas DA Craig Watkins, in order to have a regular way to investigate the claims of wrongful convictions that his office already faced, and others that might arise in the future.

I support CIUs.  They assure that the DA’s office has a built-in way to address any substantive claim of wrongful conviction.  They can work in partnership with local innocence projects, which can serve as screeners for claims of innocence, in order to point CIUs to cases with real, tenable claims.  (This was the arrangement between the Dallas DA’s CIU and the Texas Innocence Project when I researched and wrote my book Failed Evidence.)  CIUs are far from a perfect solution; they are, after all, part of the DA’s office that may have made the alleged mistakes being investigated, and so they lack independence.  But without a better alternative — for example, a state-created agency like North Carolina’s Innocence Inquiry Commission – CIUs can do the job, and can be created immediately, on the orders of the DA.

CIUs have begun to spread to DA’s offices across the country.  And with that visibility comes some serious thinking about how best to assure conviction integrity.  A conference will take place this Friday, April 4, and Saturday, April 5, called “A Systems Approach to Conviction Integrity,” sponsored by the Quattrone Center at the University of Pennsylvania Law School in Philadelphia.  The event is free, and will be live streamed on the internet for those (like me) who cannot get to Philadelphia to attend.

Take a look at the description of the conference and the agenda.  It’s designed to help people involved in the criminal justice system learn to use quality control systems from experts in laboratory science, aviation and aeronautics, medicine, public health, transportation and other fields who have created mechanisms and institutional cultures designed to reduce and ferret out errors.  Here’s a sample of the conference statement, just to give everyone a sense:

The problem of quality control pervades many of the systems in our society.  Panelists, each expert in quality control and systems error reduction in a complex, high-risk field, will explore efforts to address quality control in a range of other important areas, such as healthcare, aviation, laboratories, etc., and how maintaining quality in the criminal justice system may be similar to and different from quality control in these other areas.

If you are interested in the problem of reducing wrongful convictions going forward — that is, not just correcting the errors of the past, but avoiding them in the future — I urge you to attend or watch via the web stream.  The conference will be a milestone along the road to a better, more accurate criminal justice system, with a ton of information we can all use.

 

On February 4, the National Registry of Exonerations published its yearly report for 2013.  The Registry, a joint project of the University of Michigan Law School and the Center for Wrongful Convictions at Northwestern University Law School, collects information on exonerations that have occurred since 1989.  The headlines on the new report (from the New York Times to NBC News to the Huffington Post) nearly all focused on one fact: 2013 saw 87 exonerations, the highest yearly total yet in any year since 1989.

This is a significant fact.  But two other things in the report got less notice and deserve more.

First, for most people, “exoneration” is synonymous with “DNA exoneration.”  This is how the world looks, whether on television (think of CSI and its many clones) or in any news source.  But this view doesn’t reflect the real world.  As the report points out, only about 21 percent of the exonerations in 2013 involved DNA (p. 6).  Despite the impression one gets from the media, this has always been the case; of all of the exonerations since 1989, 72 percent were not based on DNA.  And that difference seems to be increasing.  In both 2012 and 2013, non-DNA exonerations increased significantly, while DNA exonerations decreased (p. 12).

The other fact that many in the media did not notice: for the last two years, the percentage of all exoneration cases resolved with the cooperation of the police or prosecutors has risen dramatically.  In 2012, almost half of all the cases featured cooperation of the police or prosecutors in re-examining cases, leading to exoneration; the average percentage in all the years before (1989-2011) did not reach 30 percent.  The trend continued this year, with almost police or prosecutors cooperating in almost 40 percent of all exonerations.  (A few media organizations, such as Fox News, NPR, and the Christian Science Monitor, featured this fact in their headlines and/or stories.)

This is a very welcome and important development.  While some exonerations have always come about with law enforcement cooperation, this was not the trend.  Despite assurances from Scott Burns, executive director of the National District Attorneys Association that “we always did that, we just didn’t” have a name for the process (see his quote here), the data on the last two years do show a greater willingness to re-examine old cases than in years past.  According to Samuel Gross of the University of Michigan Law School, who edits the Registry, “the sharp, cold shower that DNA gave to the criminal justice system has made us realize that we have to re-examine” closed cases whether with DNA or not.  That idea appears to be sinking on a much wider basis.  And that is all to the good.

 

Following up on my last post, in which I asked why there were still no national standards for forensic science five years after the National Academy of Sciences’2009 report Strengthening Forensic Science in the United States, and with scandal after scandal in U.S. crime labs all over the country, there may be light on the horizon.  On January 10, the U.S. Department of Justice (DOJ)  and the National Institute for Standards and Technology (NIST) announced the formation of the National Commission on Forensic Science.

According to the announcement issued by DOJ and NIST:

Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy, said that the Commission “will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all.’ ”

The formation of the Commission could be the a significant milestone in the march toward the use of real science and defensible national standards in forensic labs.  But it may be limited in what it can achieve just by its creation and structure: it is not a body created by Congress with power to come up with and implement standards or to regulate anything.  Rather it is a federal advisory committee, formed under the Federal Advisory Committee Act of 1972.  (A quick primer on the Act is here.)   It investigates and debate designated topics, and then reports its recommendations to the relevant federal department(s) that formed it (in this case, the DOJ and NIST).  Those agencies could choose to embrace and follow, or could choose to reject, some, all, or none of the Commission’s suggestions.

Still, this is a hopeful sign that we might be heading in the right direction.  At the very least, we will see a national conversation between the very large number of Committee members; they come from a variety of backgrounds in government, science, the legal system, and elsewhere.  See the list of more than thirty Commission members at the bottom of this announcement.

I hope readers will weigh in on the following question: realistically, what will come from the Committee?  Will the government adopt these recommendations?  Will the recommendations include national standards to regulate forensic testing, assure quality control, and the like? In the end, will the work that you foresee coming from the Commission improve the U.S.’s largely unregulated system?

Here we are, more than a month after chemist Annie Dookhan, formerly of the Massachusetts State Drug Laboratory, entered a guilty plea to producing fraudulent forensic testing results, and went to prison.  The scandal, potentially involving tens of thousands of cases, has resulted in the release of hundreds of convicted persons. All of this has reportedly cost the state of Massachusetts more than 8 million dollars, and the state has budgeted almost 9 million more for the continuing damage.    Readers have seen coverage of the Massachusetts scandal, and several others, here and here and here.

But Dhookan and the Massachusetts Drug Laboratory are far from alone.  According to a report by National Public Radio, there have been  twelve major crime lab scandals in the U.S. in just the last two years.  With all of this damage  – to individual cases and defendants, to state and local budgets, and to the public trust — occurring all over the country, how have policy makers at the national level responded?

Well, they haven’t.  At least not yet.

Almost five years after the release of the National Academy of Sciences’ report “Strengthening Forensic Science in the U.S.: A Path Forward,” which recommended (among other things) the establishment of national industry standards for forensic labs and a National Institute of Forensic Science,  as well as the independence of every crime lab from police agencies and prosecution offices, none of this has happened.  Nor is accreditation of laboratories required.

According to National Public Radio, Senators John Cornyn of Texas and Patrick Leahy of Vermont “are working to introduce legislation this year” which could address some of these problems.  But nearly five years after the NAS report, and with the parade of crime lab scandals  continuing without let up, why has it taken five years to get to this very preliminary point?

Readers, would mandatory national standards help?  Are they appropriate?  What about requiring accreditation?

If you are from outside the U.S., does your country set mandatory national standards for crime labs?  Is accreditation required?

The time has long since passed for us to do something about this set of problems in the U.S.  We just can’t afford the damage to the credibility of our criminal justice system and the costs of  reviewing cases and releasing convicted prisoners — some of whom may very well be guilty, but whose cases are tainted.

New York City will have a new mayor in 2014.  In my article “Ten Steps Bill de Blasio and Bill Bratton Should Take to Fix Stop-and-Frisk,” published in The Nation, I offer a way forward for Mr. de Blasio to start repairing the damage done by the Bloomberg-era policing of the last 12 years.

New York, and indeed the entire country, is waiting to see what the newly sworn-in Bill de Blasio will do the first week of January to fulfill his promise to reform stop-and-frisk.  His first step should be to drop the appeal of Floyd v. City of New York, a move he promised to make many times on the campaign trail….Once the stop-and-frisk appeal is dropped, here are the top ten steps de Blasio and Bratton should take as part of the Floyd remedies process to move forward with stop-and-frisk reform and end racial profiling.

Among the steps I recommend: allowing community stakeholders to be part of the reform process; setting up an independent monitor, and creation of an early warning system.  Many of what you’ll read echo what is in the court’s opinion setting out the remedies for the violations the evidence proved.

To get at least some sense of what Bratton’s approach may be, take a look at this article from the Wall Street Journal on December 20. Perhaps “collaborative policing” — Bratton’s most-frequently-used phrase so far — will include allowing stakeholder participation in the fashioning of reforms; it is too early to tell at this point.

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world.  I regularly turn to their model policy and training documents when working on those issues for police agencies.  So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach.  It is based on work at a summit of people from IACP, DOJ, and a host of experts.  In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report makes thirty recommendations on a number of topics: eyewitness identifications, false confessions, preventing investigative bias, improving DNA testing procedures, CODIS, correcting wrongful arrests, leveraging technology and forensic science, and re-examining closed cases with an openness to new information.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them.  Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

The use of DNA identification as a forensic tool, beginning in 1989, changed the way that we think about guilt, innocence, and traditional police investigation.  It isn’t just the 311 wrongful convictions that DNA identification has confirmed; it’s the far more numerous cases in which DNA has determined guilt — sometimes in cases years or decades old.

Now DNA identification is about to change: it will become even more powerful than it is now.  A new way of processing and interpreting DNA has arrived that will make our current DNA techniques look weak by comparison.

On Friday, Nov. 8, I attended an incredibly interesting talk by Dr. Ria David.  Dr. David is one of the co-founders of Cybergenetics, a company based in Pittsburgh.  Cybergenetics has perfected computer-based techniques and technologies that will change the way that DNA is analyzed.  With Cybergenetics’ TrueAllele (R) system, the analysis relies the power of computers instead of interpretation done by humans.   The talk was sponsored by the Center for Women’s Entrepreneurship (CWE) at Chatham University.  (Disclosure: my wife runs CWE; my wife and I know Dr. David and her Cybergenetics co-founder, Dr. Mark Perlin, but neither my wife nor I have any personal or financial ties of any kind to Cybergenetics.)

Most of us know that a DNA sample allows forensic scientists to say things like “the odds that this sample came from anyone other than the defendant are fifty million to one.”  Pretty powerful stuff — until you learn that Cybergenetics’ systems will allow prosecutors to offer juries odds of not tens of millions to one, but trillions or even quadrillions to one.  In addition, Cybergenetics will allow analysts to pull apart mixtures of DNA from different people, which is common at crime scenes, and which current DNA technology often can’t handle.  Readers of my book Failed Evidence: Why Law Enforcement Resists Science can get a little more information in Chapter 7, pp. 186-190; you can get the book here.

Cybergenetics’ DNA system has found ready acceptance in the United Kingdom, but the process has been slower in the U.S. There has been considerable resistance — something readers of Failed Evidence are quite familiar with — particularly at the FBI, which governs current DNA protocols and use.

There is much more to how the Cybergenetics’ TrueAllele system works, and what it can do; I’d urge readers to take a good look at Cybergenetics web site, which gives details on what they do, and the many criminal cases and mass disaster identification cases (including the identification of remains at the World Trade Center site).  Once law enforcement sees what this new method of using DNA can do, and once resistance to change is overcome, DNA will be able to identify many more guilty criminals, as well as exonerate many more of the wrongfully convicted, and it will do so with more certainty that we ever thought possible.

 

In Illinois, the governor has signed legislation expanding the requirement that police record interrogations.  According to an article in the Chicago Tribune, the new law will require police to record interrogations in cases involving “any of eight violent felonies, including aggravated criminal sexual assault, aggravated battery with a gun and armed robbery.”

In 2003, after a spate of wrongful conviction in Chicago cases based on false confessions, Illinois enacted a law requiring that police must record all interrogations in homicide cases.  (This article reports on the passage of the earlier law.)  The law signed this year originally proposed extending the recording requirement to all cases, but it was watered down in response to opposition from prosecutors and police.

The law in Illinois on recording has what one could call an enforcement provision: no recording means (usually) the statement can’t be used.

…[A]n oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissable as evidence against the accused, unless an electronic recording is made of the custodial interrogation and the recording is substantially accurate and not intentionally altered…

With ten years of experience with the 2003 law, it is significant that further reforms were considered both needed and acceptable (at least at some level — law enforcement did not accept the need to record all interrogations).

Attorney Peter Neufeld, one of the founder of the Innocence Project, famously called Chicago the Cooperstown of false confessions.  (See his comments in a 60 Minutes interview here.)  Perhaps these continuing reforms can change Chicago’s reputation — at least a little bit.

 

On August 19, the New York Times published an op-ed piece on the stop and frisk case by John Timoney, former first deputy commissioner of the NYPD and former chief of police in Philadelphia and Miami.  Mr. Timoney is a respected figure in American policing; his article, “The Real Costs of Policing the Police,” was a direct shot at Judge Scheindlin’s decision that the NYPD must change how it conducts stops and frisks.  I won’t characterize or excerpt Mr. Timoney’s piece; it’s short and speaks for itself.  I urge you to go to the link and read it.  But it deserves a reply: Mr. Timoney gets important things wrong, and fails to reckon with costs he prefers to ignore.

Judge Sheindlin did not find that “the benefits of ending what she considers to be unconstitutional stops would far outweigh any administrative hardships.”  In fact, Sheindlin made sure she stuck to the one job a court has in such a case: assessing whether or not it is constitutional.   She explicitly, and properly, declined to weigh the costs and benefits of the program.   

Second, Mr. Timoney encourages skepticism of the court’s order to begin pilot programs using body-worn video (BWV), based on the reality show “Cops.” But instead of phony TV, examine the comprehensive field studies of BWV done in Britain.  Officers using BWV found it extremely beneficial for recording evidence, creating records, more rapidly resolving cases, reducing public order offenses, and promoting successful prosecution of domestic violence offenses.  The cameras also, of course, facilitated greater police accountability in the bargain. (My law review article on BWV in the Texas Tech Law Review can be downloaded here.)

Third, Mr. Timoney says that the problem would solve itself without court intervention.  Stops have come down considerably in recent months; officers “have gotten the message.” Maybe some have.  But the statements of the NYPD leadership both during and after the trial strongly supporting the program as it has operated over the past six years shows those leaders want the program maintained, not reformed.

Most importantly, Mr. Timoney bemoans the costs of implementing Judge Sheindlin’s orders, and those costs will be considerable.  But he fails to acknowledge the costs to the many New Yorkers over the years who were stopped, questioned and frisked without reasonable suspicion.  Apparently, Mr. Timoney believes that if the Police Department or the city don’t pay a cost, it doesn’t count.  The judge’s decision makes clear that this simply isn’t true: a huge cost has been paid all along.

 

In my last post, I discussed the legal basis for the court’s decision in Floyd v. New York City, in which the judge found that the NYPD’s stop and frisk program violated the Constitution.  In this post, I’ll discuss the remedies: the changes the judge has ordered the NYPD to make.  (All quotes are from the court’s separate “Remedies Opinion.”)

To start: the host of a public radio show I did on Tuesday asked whether the court has the power to order these changes.  The answer is yes.  Having found that the NYPD violated the Constitution, the court has the power to order the court to do what is necessary to fix its practices to eliminate the violation.  The judge was actually quite circumspect, carefully outlining the limits of her own reach.

So what remedies did she order?  Here are the most important ones.

First, she appointed an independent monitor to help create the changes in how officers use stops and frisks, and to oversee the implementation of these changes.  Independent monitors are common in negotiated settlements of police misconduct cases brought by the U.S. Dept. of Justice, and they are also used in some cases in which private plaintiffs have sued police departments (e.g., the Philadelphia case on stops and frisks).

Second, she mandated some of the areas that must be changed: “policies, training, supervision, monitoring, and discipline regarding stop and frisk.”  She was especially adamant that policies on certain particular matters undergo an overhaul:  training regarding what constitutes the necessary reasonable suspicion to perform a stop and frisk; the targeting of “the right people” for stops (which she said led to racial profiling); and the use of “performance goals.” She also ordered that the documentation and record keeping for stops and frisk must undergo specific changes.

Third, the judge ordered the Department to launch pilot programs for “body-worn cameras” that would record stop and frisk encounters.  This was a surprise to many, because the subject came up only peripherally in the trial and the technology involved is relatively new.  These video recording systems, which record an officer’s-eye view of the interaction between citizen and police officer, will create “a contemporaneous, objective record of stops and frisks, allowing for the review of officer conduct by supervisors and the courts.”  For those interested in this promising technology, take a look at my brief article, “Picture This:  Body Worn Video Devices (‘Head Cams’) as Tools for Ensuring Fourth Amendment Compliance by Police,” published in 2010 in volume 43, issue 1 of the Texas Tech Law Review.

Fourth, the judge prescribed a “joint remedial process” in which there would be “community input” into the remedies, modeled on the Collaborative Agreement used in Cincinnati.

Those are the general outlines.  The City and the NYPD have pledged to appeal, but it is questionable whether an appeal could even get started before Mayor Bloomberg leaves office, bringing new leadership to the city and very likely to the police department too.  Given the positions of the leading candidates on stop and frisk, the next mayor is likely to take a different approach to the issue, and thus to the court decision.

In a future post, I will offer some reflections on what the impact of the decision is likely to be beyond New York.