Brooklyn DA’s Probe of 50 Convictions Featuring One Detective: Conviction Integrity Unit, False Confessions in the Spotlight

With the news that the District Attorney of Brooklyn is re-examining convictions in 50 cases featuring the work of one particular detective (see stories here and here ), we see two issues that have surfaced on the Failed Evidence blog before: false convictions and Conviction Integrity Units (CIUs).

First, the cases under re-examination all involve retired NYPD Detective Louis Scarcella, who had a penchant for getting confessions out of suspects when other detectives could not. According to Scarcella, “there were cases where suspects talked to one detective and they got nothing, and they called me and I got statements. A lot of guys don’t know how to talk to people.”   Some of these suspects who allegedly confessed said that they had told Scarcella nothing.  Scarcella also relied regularly on testimony from one particular drug-addicted prostitute; among the many times she served as Scarcella’s “go-to witness,” she gave crucial eyewitness testimony in two separate murder cases against the same man.  According to one prosecutor who had the woman testify in two trials, “It was near folly to even think that anyone would believe [her] about anything, let alone the fact that she witnessed the same guy kill two different people.”

But there is also this: the re-examinations are being handled by the Brooklyn DA’s Conviction Integrity Unit (CIU), which I wrote about in connection with the exoneration and release of David Ranta, here.  As readers of the Failed Evidence blog know, CIUs are  dedicated units within prosecutors’ offices, just like  homicide or fraud units, that take on the task of re-opening old convictions now in doubt.  The first CIUs were established by DA Craig Watkins in Dallas and former DA Pat Lykos in Houston, and they have begun to pop up in other places.  In New York, both the Brooklyn DA and the Manhattan DA have established CIUs.

The CIU model for examining possible wrongful convictions isn’t perfect; a CIU is, by its nature, not independent of the DA’s office, and could be stopped in its tracks or dismantled completely just as easily as it could be created.  But as I’ve argued here before, they at least represent a step toward accountability for wrongful convictions, in a field in which too few elected prosecutors will touch prior convictions at all.  We should pay careful attention to how this large-scale investigation by the Brooklyn DA’s CIU works out; it will say a lot about whether CIUs can be part of the solution going forward.

 

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.

“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.

“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.

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.

 

With 300-plus Cases of DNA Exoneration, In How Many Is the Defendant Actually Innocent?

My  presentation Failed Evidence on January 31 at the University of Toledo College of Law — lively, well attended, and intense — featured a great question that I want to put to everyone.

One person in attendance was a man who is a police chief in Ohio.  He’s had a long and distinguished career; I had the great privilege of working with him some years ago, when I was a member of the University of Toledo faculty.    In one part of my presentation on Failed Evidence, I discussed the more than 300 cases since 1989 in which DNA identification has resulted in an exoneration.   In the Q & A after the talk, the chief asked a question about the 300-plus cases.  I’ll paraphrase: among those cases, he said, there would be some in which the DNA results disproved the conviction, but did not necessarily prove the defendant was not guilty.  This is because, he said, the absence of the defendant’s DNA may not support guilt, but it also does not necessarily prove innocence either.  (I’m hoping I understood his comment/question correctly and am conveying it clearly.) Was I prepared to admit that in at least some of the 300 cases, the defendants might indeed be guilty, even if the DNA had resulted in the defendant’s release and the dropping of charges?

I have had this question asked of me before, and heard it posed to others.  I gave my answer, but I would like very much to hear yours.  What do you think? Is the question correct, or is it based on certain assumptions that may not hold?  What would your answer to the question be?

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.

Failed Evidence Is Featured on Jurist

This week, Jurist, a national and international legal reporting website, is featuring my commentary on Failed Evidence.   Here’s a quick sample:

[The] image of a deep alliance between police work and modern science is misleading at best. With the exception of DNA work and certain kinds of classic chemical analysis, law enforcement generally does not embrace existing scientific work. In fact, police and prosecutors in the US resist science. The scientific work I am referring to involves the testing of the more traditional techniques of law enforcement investigation and prosecution: not the high-tech sheen of the DNA lab, but scientific testing of eyewitness identification, the interrogation of suspects and the more traditional forensic methods such as fingerprint identification. This is the daily bread and butter of law enforcement, and scientists have found it wanting. The science on these basic police investigation methods has existed for years — some of it for decades. It is rigorous, and has undergone peer review, publication and replication. It tells us what the problems with traditional police work are, and also gives us some straightforward ways of solving these problems. Yet, most — not all, to be sure, but most — of American law enforcement continues to resist this science and refuses to change its basic tactics to reflect the best of what science has to offer.

Jurist mixes straight reporting and commentary from the U.S. and around the world; it’s a great source for anyone interested in issues of justice and how it plays out in domestic and international situations around the world.  (Full disclosure: Jurist is supported by my own institution, the University of Pittsburgh School of Law, and has been guided and run since the beginning by my esteemed colleague, Professor Bernard Hibbitts.)  Check it out.

Why All Prosecutor’s Offices Need a Conviction Integrity Unit, Part 4: An Important Criticism

I’ve gotten some great comments on my posts (here’s the last one) on Conviction Integrity Units (CIUs) for prosecutor’s offices.  One group of these comments contains an important criticism of my support for CIUs.

The thrust of the criticism is that CIUs, as units within the same prosecutor’s offices that may have produced wrongful convictions in the first place, are not independent.  They are, instead, part of the very agencyiesthat they investigate.  Because of that, they may not do thorough, complete, and unsparing investigations.  To the extent that the lawyers in CIUs investigate their own colleagues, they will always be tempted to make their fellow prosecutors or the agencies look good.  Because the lawyers in the CIU are ultimately beholden to the elected prosecutor they serve, they may not feel free to follow the facts where ever they lead, without fear or favor.  And at the very least, because they are not independent, the public may not view CIUs or their investigations as legitimate, even if they do every thing right.

This is an absolutely legitimate criticism.  One can say the same thing about internal affairs units within police departments.  (In fact, one critic of my proposal to require CIUs made exactly this analogy.)

I certainly agree that, ideally, the best arrangement would be independent CIUs: a unit outside the prosecutor’s office to investigate claims of innocence.  This could be a group of independent lawyers, like a citizen’s review board to review police conduct, or a free-standing state agency, such as the North Carolina Innocence Inquiry Commission.  Organizations like these, if fully independent and adequately empowered to accomplish their missions, would be the best choice.  They could not be interfered with, staff would not be intimidated by owing their jobs to the prosecutor, and they would have more legitimacy in the eyes of the public.

The problem is that, in the U.S., there seems to be little political appetite for this kind of agency.   North Carolina’s Commission is a counter example, but it stands virtually alone.  In the U.S., where the vast majority of prosecutors are elected county officials who often wield considerable local political power, the chances that governments will create independent bodies to investigate prosecutors’ mistakes seem virtually nil.  (The creation of independent police review boards in the U.S. has been very difficult, and police and their unions have fought them mightily from the start.)  Should a state legislature consider the creation of independent CIUs, overwhelming political opposition by powerful prosecutorial lobbying  organizations is a certainty, and would almost guarantee defeat.

The appealing thing about internal CIUs is therefore a bit counter-intuitive, but real: they can be created by prosecutors themselves, for their own agencies.  No outside authority is necessary to have this happen.  A prosecutor who sees the virtue of CIUs — in terms of ferreting out old injustices, learning from past mistakes, and building trust with the citizens (that is, voters) they serve — can simply go ahead and create one.  This is exactly what Craig Watkins did in Dallas County after he was elected in 2006, and it is why some other DAs are doing it now.

Of course, not all prosecutors will take this step, and maybe those whose offices need it most are least likely to do it.  (Surely, it is no accident that the prosecutors in Dallas, Houston, and Manhattan that have created CIUs have all been new to the office; their CIUs investigate their predecessor’s cases.  Brooklyn, N.Y. prosecutor Charles Hynes, mentioned in the New York Times article last week concerning a wrongful conviction, is the exception; he has served since 1989, and therefore his CIU investigates his own cases.)  That’s certainly a fair point.  But right now, of course, there are no independent CIUs except North Carolina’s.  By advocating the creation of internal CIUs as a best practice to be expected of any well-run prosecutor’s office, we can move the prosecutorial profession in the right direction even if it doesn’t happen everywhere, and even if internal CIUs are only a good model, but not the best one.

But this issue is important enough that I’d be very happy with a good model in many places — certainly happier than with the best model up and running, but only in one place.