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.

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.

“Failed Evidence” Reviewed in Chemical & Engineering News

Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012) has been reviewed in Chemical and Engineering News, the publication of the prestigious American Chemical Society.  The review, entitled “Why Criminal Law Ignores Science,” is both enthusiastic and nuanced.  Here’s a slice or two:

The [criminal justice] system desperately needs changes, and it needs them fast. In his book, “Failed Evidence: Why Law Enforcement Resists Science,” David A. Harris, a law professor at the University of Pittsburgh, discusses the three most common causes of wrongful convictions, makes recommendations to help right the ship immediately as well as long term, and takes on law enforcement and prosecution that refuse to implement any meaningful changes—even in the face of scientific proof that doing so would decrease the number of wrongful convictions.

This “resistance to sound, science-based police investigative methods” is the theme of “Failed Evidence.” The book is an easy and informative read best suited for policymakers, scientists, advocates, judges, prosecutors, law enforcement, defense attorneys, and anyone with a general interest in the American criminal justice system. Truth be told, anyone who might find themselves sitting in the chair of a juror should read Harris’ book before sitting in judgment of a fellow human.

….

Harris paints a picture suggesting that together we can make a difference. We will never be perfect, but we can do things much better. “Ignoring science, when doing so increases the risk of wrongful convictions, simply does not square with justice or fairness,” he writes. Positive change must happen and as Harris concludes, “Justice demands no less.”

You can read the full review here.

DNA Testing and Privacy: the Maryland v. King Argument in the Supreme Court

In yesterday’s post, I discussed Maryland v. King.  Those arguments,  heard at the Court on February 26, considered whether a state should be permitted to take a DNA sample from every person arrested (not convicted — arrested) for a felony.  I asked in my post that we put questions of  individual privacy aside, and instead ask whether such wide sampling would be a good idea from a crime-solving point of view.  (Some experts do not think so, as discussed in the post.)

Today, let’s put the question of privacy back into the equation, because that appears to be what the Justices will do.

In his recap of the Feb. 26 argument, Scotusblog’s Lyle Denniston tells us that the key points were posed by two of the Court’s conservative justices.  According to Denniston, Justice Samuel Alito clearly favored the idea that law enforcement should be able to take these samples.  DNA sampling “is the 21st century fingerprint” Alito said at least twice.  According to his way of thinking, there is no constitutional difference (in terms of the degree of intrusion on individual privacy) between taking a fingerprint and taking a DNA sample.

The other pole of the argument was taken up by conservative icon Justice Antonin Scalia.  When the lawyer for the state of Maryland used a long list of cases solved through DNA testing to support her argument in support of the law, Justice Scalia reacted forcefully.  According to the National Law Journal:  “Well, that’s really good!” Scalia exploded. “I’ll bet if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.”  In other words, the question isn’t whether the state’s action solves cases; some methods of solving cases are simply not allowed under the Constitution, even if they could be proven to work better than others.  The question is whether the Constitution — in this case, the Fourth Amendment’s prohibition of unreasonable searches — allows the state to do what it wants to do.

During Tuesday’s argument, Justice Alito commented that King could be “the most important criminal procedure case this Court has had in decades.”  That will depend on how the Court decides the case, which it will do sometime before the end of June.  But one thing we do know:  the debate between law enforcement’s desire to use all the tools it can to fight crime and the Constitution’s protections of the individual against state intrusion will go on.

Put Privacy Aside: Is Collecting DNA From Every Arrested Person a Good Idea?

Today the U.S.  Supreme Court hears arguments in Maryland v. King, the Court’s latest foray into  DNA testing.  Most reports have focused on the clash between law enforcement’s desire to test every arrested person in order to try to solve old cases, and those who advocate for a strict interpretation of the Fourth Amendment’s protection of privacy.  For example, a report by the excellent Nina Totenberg of National Public Radio discussed the positions of police, who believe taking a sample from every person arrested is a minimal intrusion that can have a big payoff, and the arguments of defense attorneys and civil libertarians, who feel that allowing testing of all arrestees would surrender the basic principles of the Fourth Amendment’s protection against unlawful searches and seizures.

But there’s a question that may be far more important: from a crime fighting point of view,   is it a good idea for police to take and process a DNA sample for everyone who gets arrested?   Of course there will be some cases — such as the King case itself — in which the time-of-arrest sample leads to an arrest for a different, serious crime.  But taking samples from every arrestee may actually hurt our efforts to use DNA most effectively to make ourselves safe.  According to an article in Slate by Brandon Garrett and Erin Murphy, real public safety gains from DNA lie not with taking samples from every jaywalker and burglar and hoping for a hit in a cold case, but instead in taking many more samples from crime scenes.  In other words, we get more hits when we process samples from active crime scenes and match them against our already-large DNA database, instead of fishing for leads among the whole population of more than 12 million people arrested every year.  And all of those additional samples from arrestees crowd out and slow down the processing of samples from real crime scenes and victims, creating backlogs.  In other words, bigger DNA databases is not the answer to crime.

[B]igger is only better if DNA databases grow in the right way: by entering more samples from crime scenes, not samples from arrestees. DNA databases already include 10 million-plus known offender profiles. But a database with every offender in the nation cannot solve a crime if no physical evidence was collected or tested.  And police collect far too few such samples….The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes.  Even worse, taking DNA from a lot of arrestees slows the testing in active criminal investigations….Backlogs created by arrestee DNA sampling means that rape kits and samples from convicted offenders sit in storage or go untested.

The bottom line: even if the Supreme Court says we can take a sample from every person arrested, doesn’t mean we should.

 

U.S. Depts. of Justice, Commerce Will Create National Commission on Forensic Science

Four years after the National Academy of Science’s 2009 report Strengthening Forensic Science in the United States: A Path Forward called for basic changes in the forensic sciences, U.S. Department of Justice and U.S. Department of Commerce’s National Institute of Standards and Technology have announced they will create a national commission on forensic science.  The commission will have 30 members — forensic science practitioners, researchers, prosecutors, defense attorneys, and judges — who will develop policy recommendations for the Attorney General.  According to the Department of Justice announcement:

The commission will have responsibility for developing guidance concerning the intersections between forensic science and the courtroom and developing policy recommendations, including uniform codes for professional responsibility and requirements for training and certification.  The new initiative provides a framework for coordination across forensic disciplines under federal leadership, with state and local participation. The Department of Justice, through its involvement in the commission, will take an active role in developing policy recommendations and coordinating implementation.

For many who looked for action in the wake of the National Academy of Science’s 2009 report and saw very little, the creation of the commission will comes as a welcome step forward.   The National District Attorneys Association (NDAA), which took a fairly negative view of the 2009 report and its recommendations, is now reacting with a wait and see attitude.  The NDAA has not yet put out a formal statement in reaction to the announcement of the commission; according to Scott Burns, the Executive Director of the NDAA, the organization will do that once it gets the details on the commission, especially its composition.  So far, Burns told me, the NDAA is  “encouraged” by the fact that prosecutors will be part of the commission, though he stresses that he hopes to see more state and local prosecutors than federal ones.  Burns said that if the commission begins with the attitude that “the system is broken” and that its basics — fingerprints, tool marks, and the like — must be fixed, the NDAA will not look on it favorably.  On the other hand, if the commission starts with the attitude that “we can improve”  the system but that it basically functions well, that would be welcome.

I will write further on this as the story develops.

 

The Cost of Wrongful Convictions in Texas

I wrote in an earlier post that a wrongful conviction amounts to a triple tragedy.  First, the wrongfully convicted person ends up in prison.  Second, the victim is deprived of real justice.  Third, the real perpetrator remains free, and can victimize others.

Today, let’s consider another kind of cost: money paid in compensation to those wrongfully convicted.

In twenty-seven states and the District of Columbia, those wrongfully convicted are eligible to receive some amount of compensation.  No state has to do this; there is no constitutional obligation.

Texas, which has had more wrongful convictions than any other state.  Dallas County,  alone, has twenty-four, a larger number than every state except Illinois and New York.  Perhaps because of of the magnitude of its problem, Texas has one of the more generous compensation schemes in the country.

According to an article in the Austin American Statesman, Texas has paid out some $65 million dollars in wrongful conviction compensation.  This is an enormous amount of money, and according to many authorities, the amount will certainly grow over time.

What accounts for this in Texas, a state that had a lock-’em-all-up mentality on crime for so many years?  One answer comes from Texas State Senator Rodney Ellis, one of Texas’ leaders on criminal justice reform.  “The justice system in Texas had fundamental flaws, and this is the result.  At this point, I don’t think anyone can seriously doubt that we had a problem — a big problem.”  Another member of the legislature, Senate Criminal Justice Committee Chairman John Whitmire, sees the compensation as a way to get the system to respond to the mistakes of the past.  “I’m committed to correcting the problems we know have been a problem in our system in the past. We have to make the system accountable.”

Of course, it is worth pointing out that this isn’t the only monetary cost of wrongful convictions.  Costs for trials and appeals of the wrong people can run into the millions of dollars before a person is exonerated.

Prosecutors, police, and some lawmakers have opposed the compensation system.  Some of them believe the compensation system in Texas is too generous.

But some folks in Texas disagree.  As Chairman Whitmire says, “it’s just the right thing to do.”  Legislative spokesperson Jeremy Warren adds that “people can get upset about the level of compensation, but imagine spending years and years in prison for a crime they did not commit. If it was you, how much would be enough?”

So if tougher-than-tough Texas can do this, why can’t other states?

“Failed Evidence” Selected By delanceyplace.com, the Non-fiction Book Source

Good news: Failed Evidence: Why Law Enforcement Resists Science is the Feb. 4 selection by delanceyplace.com, a service that highlights and quotes new works for a large community of readers.  Delancyplace.com provides daily subscribers with “an excerpt or quote we view as interesting or noteworthy, offered with commentary to provide context. There is no theme, except that most excerpts will come from a non-fiction work, primarily historical in focus, and will occasionally be controversial. Finally, we hope that the selections will resonate beyond the subject of the book from which they were excerpted.”  Other recent selections have included Jared Diamond, The World Until Yesterday: What Can We Learn from Traditional Societies; Gordon Wood, Empire of Liberty: A History of the Early Republic, 1789-1815; and Ray Kurzweil and Terry Grossman, Transcend: Nine Steps to Living Well Forever.

 

Science Magazine’s Review of Failed Evidence

The current issue of Science magazine contains a review of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).  Here is a brief excerpt from the review:

Although science has long been recognized as our most reliable pathway to truth, people are sometimes reluctant to accept scientific evidence, particularly when it challenges established practices or cherished beliefs. In Failed Evidence: Why Law Enforcement Resists Science, David A. Harris accuses police and prosecutors of unwarranted skepticism toward science and tries to explain their perspective. His provocative book will interest those concerned broadly with rejection of science as well as those interested in the U.S. criminal justice system.

Science is published by the American Association for the Advancement of Science.

Why Does Law Enforcement Have the Power to Control DNA Databases and Exclude Defense Testing?

An article titled “Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data” tells the story of the case of Joseph Buffey, a man imprisoned in West Virginia for 70 years for rape.  And Buffey’s story tells us something disturbing: control of DNA evidence in most states is in the hands of law enforcement.  Unfortunately, this can block defense efforts to get at the truth.

Buffey’s case features something common to more than a quarter of DNA exonerations: he confessed, and later entered a guilty plea and apologized, at the urging of his lawyer.    But Buffey then recanted his confession and maintained his innocence.  Years later, defense lawyers got the physical evidence tested, and the DNA did not belong to Mr. Buffey.

Defense lawyers then asked the state to run the sample against the state’s DNA database (known as CODIS, which stands for Combined DNA Index System).  The idea, of course, was that the DNA might have come from a person whose DNA was already in the database.

The state of West Virginia’s reaction: no thanks.  According to the article, the authorities in West Virginia said that “the state does not believe such testing will or can prove the defendant’s innocence after his guilty plea.”  West Virginia is one of the other thirty-one that do not give a defendant the right to have the sample run through the DNA database.

After 18 months of legal wrangling, West Virginia agreed to the test.  The result: the DNA belongs to a man incarcerated in another state prison with a history of assaulting women.

Naturally, Buffey’s lawyers are now working to get him out of prison.  But the more important thing to notice is that in West Virginia, as in most other states, DNA databases, constructed at great public expense, remain in control of one party to criminal cases: the prosecution.  They, and they alone, decide whether testing will be done, and under what circumstances.  And while we can certainly hope that requests to run DNA through the database will be granted, it can also be withheld when the state simply decides that this is not in its interest.

But the article contains something I had not seen before.  Scott Burns, executive director of the National District Attorneys Association is quoted as saying that he sees the failure to run DNA samples through CODIS as a problem that must be solved.

We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into Codis,” said Burns.  “It seems like there should be laws for it, and I agree that the defense should be given the information.

Hats off to Mr. Burns and the NDAA if this is their official position.  (I say “if” because they have not always been open to such changes.)  In the next few days, I will attempt to confirm that the impression given by the story — that the organization would join in an effort to assure that DNA in a case like Buffey’s should be run — is correct.