Why President Obama should have Georgia on his mind...

The day after Amnesty International's Global Day of Action for Troy Davis, the Telegraph out of London runs an opinion piece by Neil Durkin on the possibility of an Obama pardon for Troy.

Durkin points to the centrism that Obama has come to embody in his first days in Office, straddling the line between hardcore death penalty opponents and reformers. Obama could be described as a pragmatist on this issue who can be pro-death penalty for some crimes, while fully acknowledging the flaws in the system that might lead to an innocent man being executed, something that no one should be for. For example, Obama championed important criminal justice reform while he was a state senator in Illinois, while avoiding ambiguity about whether he supported the death penalty.

So, why should this concern a popular president, burrowing through an enormous in-tray 500 miles away in Washington? Well, on the one hand Barack Obama is unambiguously pro-death penalty in what he calls the "most egregious" or especially "heinous" crimes. Last year he disagreed with a Supreme Court ruling that outlawed the execution of child rapists receiving death sentences and he's said he'd want Bin Laden executed. Okay, so far so what? This is no different from most mainstream politicians in pro-death penalty USA.

But, Obama is also heavily associated with Illinois where, as he delicately puts it, they "had some problems ... in the application of the death penalty". In fact, the problems included the then Governor George Ryan being confronted with the fact that during his governorship more death row prisoners had been released from prison on the grounds of innocence than had been put to death. Death row was running at "a loss". As a lawmaker in Illinois Obama helped introduce new measures for videotaping police interviews and he says he's "proud" of his role in "overhauling a death penalty system that was broken".

A presidential pardon or commutation for Troy would draw enormous attention and scrutiny. It would likely draw criticism as well. People are executed in the United States almost every day, though Durkin is right when he says that Troy has a particularly strong claim of innocence, or at least a strong claim of entitlement to a new trial. Troy's case has drawn so much attention – even from across the pond, as we see here – because it is so egregious. We will see if that moves Obama to action, though, for my part, I doubt it.

Criminal justice and Obama White House

We blogged earlier, on the day of the inauguration, about Obama's plans to reform the criminal justice system.

Today, SentLaw noticed that the text of the White House's page on civil rights – where only a bulleted list containing one or two mentions of criminal justice reform were mentioned – has changed.

Though perhaps this is old news, I just noticed that the discussion of criminal justice issues has changed over at the Civil Rights webpage on WhiteHouse.gov... this webpage used to take a bullet-point approach to describing agenda items, and the key bullet points were "Reduce Crime Recidivism by Providing Ex-Offender Support"; "Eliminate Sentencing Disparities"; "Expand Use of Drug Courts."

Now the President's web site reads:

The President will lead the fight to build a more fair and equitable criminal justice system. He will seek to strengthen federal hate crime legislation and will work to ensure that federal law enforcement agencies do not resort to racial profiling. He supports funding for drug courts, giving first-time, non-violent offenders a chance to serve their sentence, if appropriate, in drug rehabilitation programs that have proven to work better than prison terms in changing behavior. President Obama will also improve ex-offender employment and job retention strategies, substance abuse treatment, and mental health counseling so ex-offenders can successfully re-join society.

Friday Roundup

Though Colorado failed to abolish the death penalty yesterday, they did manage to ban texting while driving.

Add this to the list of bad signs coming out of the Obama Administration DOJ – when can we connect the dots between all the bad signs and officially become disappointed? – from TalkLeft: DOJ Argues FBI Had No Duty to Disclose Evidence of Perjury.

A good editorial, not to be missed, out of the DeMoines Register: Let plaintiffs sue for prosecutorial abuse.

Finally, from the "You can't write this stuff" department, Matt Kelley, author of the Criminal Justice blog on Change.org, tweeted this morning about a program called "Mock Prison Riot." The idea is to either participate in or watch trained professionals diffuse a staged prison riot and learn from the techniques used. Matt asks, "Is this a reality show or real prison guard training?" More than a little surreal.

Friday Roundup

A few tidbits from around the legalsphere this morning:

Change.org: This blog post reports on a recent study from the National Association of Criminal Defense Lawyers (NACDL). The study shows how the litigation of "small crimes" – crimes like loitering, driving with a suspended license, and dog leash violations – that still carry a prison sentence (!) are clogging the courts.

"Every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to equal justice. And, taxpayers are footing the bill for these gross inefficiencies."

SentLaw: A Pennsylvania inmate who maintains his innocence asks to be executed by the State, having grown exhausted from having multiple appeals denied.

Grits for Breakfast has their take on the Houston Police Department crime lab fiasco: "This is another example of a "team spirit" mentality that contributes to many forensic-based false convictions. Houston crime lab workers apparently weren't acting as scientists seeking independent answers but considered themselves part of the prosecution's team, omitting lab results that might not favor the side they wanted to win."

Simple Justice has a thorough piece discussing what Obama should be looking for in his Supreme Court nominee, now that Justice Souter is retiring.

Friday Roundup: the right to counsel

Just two things in today's roundup, but both troubling developments concerning how the right to counsel is observed and respected. For one, just yesterday,

The Constitution Project’s National Right to Counsel Committee released its much-anticipated report, Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel, today at an event held at Arnold & Porter LLP. The report details the endemic and systemic failures of the indigent defense system and recommends twenty-two specific and urgently needed reforms to fix them. The full report and other relevant materials are available online here.

Meanwhile, with unintentionally ironic timing, the Obama administration is making known its very worrisome stance on the right to the assistance of counsel. Simple Justice has a very good post here on the importance and history of this right. The post begins this way:

There isn't a competent lawyer in the practical blawgosphere who hasn't warned defendants to remain silent and invoke their right to counsel. Immediately. Every time. No matter how smart you think you are, or what they say to you to get you to talk. Don't do it.

The rule of Edwards v. Arizona is that once a suspect has invoked right to counsel, the police cannot continue to interrogate in the absence of counsel, and the defendant cannot un-invoke his right to counsel without an attorney present...

None of this seems like striking constitutional law today, yet there is a move afoot to change it. This alone might not be terribly shocking, but for the fact that the move comes from the Obama Department of Justice and Solicitor General Elena Kagan.

Here's to more of the same.

TalkLeft has an analysis here that references this Associated Press article. An amicus brief opposing the government's move to weaken this right, filed by 19 former prosecutors and judges, can be found here.

The Coverdell Grant Program for forensic science

The Innocence Project in New York recently released a report titled, "Investigating Forensic Problems in the United States: How the Government Can Strengthen Oversight through the Coverdell Grant Program." From the executive summary:

In 2004, Congress established an oversight mechanism within the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efficiency of state and local crime labs and other forensic facilities.

[...] Nearly five years after Congress passed legislation to help ensure that forensic negligence or misconduct is properly investigated, extensive independent reviews show that the law is largely being ignored and, as a result, serious problems in crime labs and other forensic facilities have not been remedied. In short, the U.S. Department of Justice’s Office of Justice Programs (OJP), which is responsible for the program, has failed to make sure that even the law’s most basic requirements are followed.

Yesterday, the blog for TheHill.com paraphrased some of the results of this study, and reiterated the Innocence Project's call for increased oversight or, rather, they called for the Obama administration to increasingly take advantage of the grant program that Congress created five years ago. One particularly egregious fact they quote is this: only 13% of designated oversight entities meet the federal law’s forensic oversight requirements. If you were a defendant, would you want to take a 1-in-8 chance that the forensic lab that processed the evidence in your trial was subject to proper oversight?

Finally, "Under new leadership, the Department of Justice can – and should – make sure crime lab problems are properly addressed, which will enhance the public safety and help prevent wrongful convictions." Remember, working to correct problems in order to preclude wrongful convictions is cheaper than housing wrongfully incarcerated individuals.


No sooner had The Hill run this post than Grits for Breakfast published some presentations from the public meetings held by the National Academy of Sciences, meetings held to address the problems plaguing forensic science labs around the country. They link to this presentation in particular that calls for forensic tests "to be as blind as possible, for as long as possible," and which contains the shocking graphic on common error rates linked above.

You'll notice that firearms and fingerprints, while among the most reliable forensic testing methods, still yield erroneous conclusions around 1-5% of the time. Some toolmark and bitemark tests, meanwhile, are reliable less than half of the time. That report also refers to several studies that found that, for example, when a scientist was provided with "context" for certain samples – context such as, "The suspect has already confessed, here's his hair and a hair from the crime scene" – that error rates were much higher. Those who conducted the psychological studies could induce false positives by giving false context, leading the forensic scientist to believe certain conclusions before they came to them independently.

All of these scientific studies point to the sad state of the crime labs in this country. Scientists might think so, but they are not immune to psychological tendencies – such as suggestibility – that afflict every human being. Independent oversight and common-sense reforms are the necessary solution to the problem.

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Friday Roundup

A busy week in the world of criminal justice. Let's see if we can cover the highlights succinctly.

• Today, New Mexico's Senate is discussing HB 825, which would abolish the death penalty in the state. The National Coalition to Abolish the Death Penalty (NCADP) will be liveblogging the event.
  
• Yesterday, South Dakota became the 45th state to enact legislation giving inmates the right to post-conviction DNA testing... And then there were five. (Alabama, Mississippi, Oklahoma, Massachusetts and Alaska remain.)
  
• The Obama administration for the first time in Federal court opposed the claims of torture victims at Guantanamo Bay in Cuba, claiming that aliens held at the camp had no due process rights. Not the move we would like to see from the President of Hope™ and Change™.
  
• Joeseph Fears became the eighth person in Ohio to be exonerated by DNA evidence and the 234th nationwhide. "[Ohio] State Sen. David Goodman introduced a bill yesterday seeking improved access to DNA testing, a requirement to record all interrogations and reforms to eyewitness identification procedures."
  
• From the Sentencing Project, Congressmen Steve Cohen (TN-09) and John Conyers (MI-14) have introduced legislation to study the racial disparities in the legal system:
  

  The advisory group would be responsible for gathering data on the presence, cause, and extent of racial and ethnic disparities at each stage of the criminal justice system. Each of the advisory groups would recommend a plan, specific to each district, to ensure progress towards racial and ethnic equality. The U.S. Attorney will consider the advisory group's recommendations, adopt a plan, and submit a report to the Attorney General. The Act requires the Attorney General to submit a comprehensive report to Congress at the end of the pilot program, outlining the results from all ten [pilot] districts and recommending best practices.

  
  
• In a laudable move, the DA in Harris County, Texas (which contains Houston), has ordered DNA testing in every case where biological evidence is available. A solid step toward the prevention of wrongful convictions, even if there is still much to be done.
  
• Finally, Bernie Madoff is, as you know, going directly to jail without passing GO.

Media coverage of Osborne

On Monday the Supreme Court heard oral arguments in the case of District Attorney's Office for the Third Judicial District, et al. v. Osborne out of Alaska. I have blogged before about Osborne; it's a hugely important case both for the work we do here freeing innocent people and for Americans in general, as it could affirm a Constitutional right for inmates to acquire DNA testing.

The case has received a mountain of media attention. Editorials have run in the New York Times, Anchorage Daily News, Alaska's largest newspaper. Articles have appeared on CNN's website and on Anderson Cooper's blog.

But some of the reports are less than promising. It is unfortunate that lawyers for the Obama administration, for example, have taken such a hardline stance against the right to DNA testing. (Some of that might be due to the fact that they have inherited the case from the previous administration.)

The new deputy Solicitor General for the Obama administration urged the Supreme Court today to go slow in giving prisoners a right to seek DNA testing that could free them.

"Our position is there is no constitutional right to DNA," Neal Katyal, a former Georgetown law professor, told the justices.

..."It is a no-cost proposition for the defendant," he said, and could "open the floodgates" to legal suits seeking new tests of old evidence.

An article in McClatchy paints a somewhat grim picture that makes it seem at least like this will be a serious nail-biter.

Supreme Court justices appeared closely divided Monday over claims by an Alaska inmate that the Constitution guarantees a right to post-conviction DNA testing.

The court's most conservative members are clearly aligned against inmate William Osborne, who was convicted of assaulting a prostitute known only as K.G. The court's most liberal members sounded sympathetic to expanded testing. At most, the odds appear to favor a narrow decision.

A decision is not due for months in the case, but we will continue to watch for developments.

Friday Roundup

Arguments at the Supreme Court begin in Osborne on Monday. Today the New York Daily News has an article calling Alaska's refusal to grant post-conviction DNA testing "shameful."

The state admits that a DNA test now would be conclusive as to whether or not Osborne is guilty. But Alaska has no statute entitling anyone to post-conviction DNA testing, and the prosecution has simply refused to give Osborne access to the evidence. Instead, Alaska has fought tooth and nail to deny Osborne that access, in a decade-long legal battle that will soon culminate with a decision from the U.S. Supreme Court. The state's position has been endorsed in "friend of the court" briefs filed by the federal government, 31 individual states and the New York City Corporation Counsel...

Given the numerous cases in which new evidence, including DNA evidence, has exonerated those who like Osborne seemed very likely guilty, a prosecutor owes it to the public to be open-minded with respect to requests like Osborne's. If such testing had, in 1997, shown that Osborne was guilty, it would have done no harm - and indeed saved the Alaska taxpayers a huge litigation bill. If Osborne had been shown to be innocent, he could have been released.

More links regarding Osborne can be found here and on SCOTUSblog here.

An interesting post for all those who love numbers and statistics – like I do – went up at TalkLeft that exposed some interested line items in President Obama's stimulus bill, the American Recovery and Reinvestment Act. The post called out money appropriated for criminal justice "lock-em-up" programs:

• Violence against women prevention and prosecution programs $225,000,000
  
• Southern border and high-intensity drug trafficking areas $30,000,000
  
• ATF Project Gunrunner $10,000,000
  
• Internet crimes against children initiatives $50,000,000
  
• Rural drug crime program $125,000,000
  
• Community Oriented Policing Services (COPS) grants $1,000,000,000
  
• Justice Department salaries and expenses for administration of police grant programs $10,000,000
  
• Office of Justice Programs state and local law enforcement assistance (Edward Byrne Memorial Justice Assistance Grants) $2,000,000,000

Finally, several more posts covering the movement to abolish the death penalty, which is picking up steam in many states.

• Tennessee Coalition to Abolish State Killing: Tennessee Study Committee Issues a Report
  
• The New York TImes: Citing Cost, States Consider End to Death Penalty
  
• A map and infographic of states with and without capital punishment on Change.org.
  
• TalkLeft: States Consider Dropping Death Penalty.

Death by Detention

Good Magazine has a revealing article called "Death by Detention," about the worsening crisis in the nation's immigration and deportation detention facilities. They profile the case of Guido Newbrough, who moved to America from Germany when he was two-years-old.

Guido took an Alford plea – denying any guilt but admitting prosecutors could probably obtain a conviction – to sexually assaulting his girlfriend's daughter in 2003. Then, when it turned out his green card did not afford him the citizenship status he thought it did, he was rounded up by ICE as part of an increasingly strict program of detaining and deporting sexual offenders.

Taken to Piedmont Regional Jail in Farmville, three hours away, Guido was one of the roughly 300 immigrants indefinitely detained there, without the rights or protections he had as a criminal inmate. [Guido's father] Jack hired an attorney. “He told us right off this is a tough one. But we kept saying to ourselves it will work out. Because why wouldn’t it work out?” he says...

After several months in the jail, Guido began to complain about pain in his stomach and back. His mother told him to tell the doctors. “Yeah, I told them,” he replied. “But they don’t care.”

Guido was eventually moved to a hospital, but by then, it was likely his heart had begun to fail, and he had experienced multiple organ failures.

Two hours after his family arrived, his mother sobbing beside him, Guido’s heart stopped. “There was an officer there with a gun waiting for him to expire,” says Jack. “He couldn’t leave there until he died.”

But, amid increased scrutiny from lawmakers and the media, a broad array of rights groups is calling for changes in a system that operates with little oversight and detains people indefinitely—often for months, sometimes for years— without entitlement to a lawyer, or the protections afforded criminal inmates...

Last spring, after being denied access three times to a private detention center, Jorge Bustamante, the U.N. special rapporteur on migrants’ rights, issued a stinging report that claimed the detention system violates international and human rights law. He called for an end to mandatory detention and for officials to issue codified regulations about how detainees are treated—a move long advocated by the American Bar Association. Immigration officials released a new set of “performance-based” standards that govern the conditions of detainees last fall, but have resisted the call for enforceable regulations.

In addition to the several-hundred inmates in prison at the better-known Guantanamo Bay, nearly a half million are detained indefinitely in centers like the one Guido was taken to, on American soil. Said a Washington Post exposé, "The detainees have less access to lawyers than convicted murderers in maximum-security prisons and some have fewer comforts than al-Qaeda terrorism suspects held at Guantanamo Bay."

The article is long, but it is a must-read. It is especially timely given a recent piece in the Orlando Sentinel about how a death sentence in Florida might as well be a life sentence, seeing as how so many prisoners die on death row while awaiting their execution.

Between March 1998 and November 2008, the Department of Corrections executed 26 prisoners. During that same period, another 26 death-row inmates died of other causes [like heart disease, fatal ailments and suicide], the Orlando Sentinel found.

These two stories paint a sad picture of the systemic violation of human rights in the detention facilities throughout the country, violations committed through neglect and disdain, but also causes by overcrowded, overburdened, and underfunded institutions. I didn't hear much in President Obama's speech last night about reforming the prison system – in fact, I heard nothing besides his mention of closing Guantanamo – but I continue to hope that it will become a priority of his.

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Executive order hints at prisoner re-entry

I mentioned before the ambiguity surrounding how far Obama is willing to go to take reforms in criminal justice and prisoner's rights.

Today, Sentencing Law and Policy notices a single clause in a recent executive order by President Obama:

Faith-based and other neighborhood organizations are vital to our Nation's ability to address the needs of low-income and other underserved persons and communities. The American people are key drivers of fundamental change in our country, and few institutions are closer to the people than our faith-based and other neighborhood organizations. It is critical that the Federal Government strengthen the ability of such organizations and other nonprofit providers in our neighborhoods to deliver services effectively in partnership with Federal, State, and local governments and with other private organizations, while preserving our fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and forbidding the establishment of religion. The Federal Government can preserve these fundamental commitments while empowering faith-based and neighborhood organizations to deliver vital services in our communities, from providing mentors and tutors to school children to giving ex-offenders a second chance at work and a responsible life to ensuring that families are fed. [emphasis added]