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.

Timothy Cole Exonerated in Texas

When Governor Bill Richardson abolished the death penalty in New Mexico, he called it the most difficult decision of his political career.

Now, Judge Charlie Baird in Texas has handed down a decision he has called "the most important of my judicial career." Timothy Cole was convicted in 1985 for the rape of Michelle Mallin and sentenced to 25 years in prison. Cole died in prison in 1999 for a crime that DNA evidence has since proven he didn't commit, and yesterday he was officially posthumously exonerated in Texas. Judge Baird's decision is available here.

Judge Baird said, unequivocally, "the evidence is crystal clear that Timothy Cole died in prison an innocent man, and I find to a 100 percent moral, legal, and factual certainty that he did not commit the crime of which he was convicted." Judge Baird also went on to fault police misconduct, including the deliberate misrepresentation and suppression of evidence for Cole's innocence during the investigation.

Perhaps most tragic is that, since 1995, four years before Cole died in prison from complications from asthma, Jerry Johnson had been admitting his guilt for the rape of Michelle Mallin. From Judge Baird's decision:

Worse, however, was the attitude of the courts to [the actual rapist Jerry] Johnson’s claim of guilt. As early as 1995- four years before Tim Cole died- Johnson tried to clear Tim Cole and admit to the rape of Michelle Mallin. His letters were ignored, set aside, and thrown away until one was received by the family of Tim Cole and the Innocence Project of Texas.

You can read more about Timothy Cole's exoneration at Grits for Breakfast, Lubbock Online, or the Houston Chronicle.

We're glad that this sad story is coming to an end – that the family of Timothy Cole is receiving some sort of justice in the clearing of their son's name. We hope the criminal justice system can look to Timothy's case and ask itself, "What can be done to make sure this never happens again?"

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

What if DNA evidence from a crime scene could tell us what the perpetrator looked like?

That question is the taken from a new post over at the Change.org Criminal Justice blog. The post is inspired by an article in the Wall Street Journal, that explains how researchers at Pennsylvania State University performed a study attempting to link specific genes to "phenotypes," or their physical expressions. What this means, then, is that scientists might be able to tell, roughly speaking, a person's physical characteristics by examining their DNA.

As Matt Kelley, the author of the post points out, there is much reason for alarm here. As he says, and as we have noted before, there is cause for concern over "the propensity of criminal justice agencies to use scientific methods before they're ready." He adds, "The U.K. and the Netherlands are already using some form of these tests, as are some U.S. states. Germany has outlawed the practice, along with Indiana, Wyoming and Rhode Island."

Lastly,

The WSJ reports that researchers are able to predict eye color 70-90% of the time and skin color 46% of the time. These numbers aren't strong enough to rely on. Wrongful convictions happen - and real perpetrators get away - when faulty or limited science puts police on the wrong track in those crucial first few days after a crime. I agree that these tests could be helpful in some cases to confirm other evidence, but can we guarantee that genetic composite sketches won't be become simply another form of unreliable forensic science?

The question is when and whether this will become more accurate than other methods of identification, and whether this technique can be used without any illusions of its accuracy. The worry is that juries might hear DNA evidence and assume the practice is close to 100% accurate, rather than the more pitiful, but more truthful, measure of its accuracy.

New Study: Providing Incentives to Snitches Increases False Information

From TalkLeft:

The results of the first behavioral study to investigate whether people will provide false secondary confessions raises significant concerns about the use of such evidence when informants are offered incentives. The study was conducted by psychological researchers at the University of Arkansas.

A "secondary confession" is a polite name for snitching. A news article on the study is here. The study is now published in the Journal of Law and Human Behavior in an article titled “Snitching, Lies and Computer Crashes: An Experimental Investigation of Secondary Confessions.”

Bottom line: "[A]n incentive increased the rate of false rather than true secondary confessions."

The blog also has a fuller explanation of how the study worked, but the bottom line is the bottom line. The authors of the study provide these suggestions:

The concern is partly based on confessions being assumed to be the end-all and be-all of trial evidence, when at least in the case of secondary confessions they should be treated as hearsay,” Swanner said.

She and Beike suggested several safeguards, including video recordings of all interviews and interrogations of informants and suspects as well as pretrial hearings and expert testimony to allow jurors to better assess the validity of secondary confessions entered as evidence.

“It is essential for jurors, prosecutors and judges to be informed about the potentially biasing nature of incentives to confess,” they concluded. “Snitches may indeed lie or come to believe a falsehood about another to be the truth. Jurors must be able to consider this possibility as they make their verdicts.

To learn more about what can be done to prevent false confessions as well, read our page here.

Visit IPF's Website here; sign up to volunteer here; contribute to our work here.

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.

Jacksonville's New PD Slashes Experienced Staff

Jacksonville's newly elected Public Defender, Matt Shirk, is shaking up Duval county by firing 10 of the office's most experienced defense attorneys. The firings are ostensibly brought on by budgetary concerns, as Chief Circuit Judge Donald Moran noted in the Florida Times-Union that Shirk would likely be able to hire two or three young lawyers for the price of each seasoned professional.

But the very real concern is that Shirk might be sacrificing quality for quantity. Many of these public defenders, with over 300 years' combined experience, were "superstars," says the Times-Union. With the talent gone, "the legal community expressed concern about the quality of legal services the office will be able to provide and the appellate cost to the public." In fact, these lawyers are of such a high caliber, says the same paper, that

At first blush, the criterion for recent personnel cuts... appears to be notable success defending criminally accused people who are too poor to hire their own lawyers.

The list of 10 lawyers fired by Shirk - who defeated incumbent Bill White on Nov. 4 - reads like a who's who of the Jacksonville-based office's stars.

The JaxPolitics blog notes that the impending personnel shortage is not local to Florida:

In addition, many Public Defenders Offices throughout the nation are now overloaded with cases and have serious funding issues that must be addressed. Currently, public defenders in 7 states (including Florida) are either refusing to take on new cases or have filed lawsuits due to overburdened case loads which prevent them from providing effective assistance of counsel.

Says the Times-Union, for example "the office had eight lawyers qualified by the state to try death penalty cases; the firings leave three, and two of those are assigned to Clay and Nassau counties." The firings are making a bad situation worse, first by firing the most talented professionals employed by the county, and secondly leaving the remaining lawyers stretched too thin. Add to that that Jacksonville is the murder capital of Florida, and you've got a recipe for chronic inadequacy.

Two of the defenders who are being forced out, Ann Finnell and Patrick McGuinness, were the subjects of the 2001 Oscar-winning HBO documentary Murder on a Sunday Morning, which told how the Jacksonville Police Department had wrongly accused 15-year-old Brenton Butler of a murder and obtained a false confession by beating him senseless during an interrogation.

The Butler episode calls into higher relief the point that the work of experienced defense attorneys may be the only thing that stands in the way of innocent people being convicted. Were it not for the talents of Finnell and McGuiness, Brenton Butler may have been wrongly convicted.

It makes sense that freeing up money would mean letting go of the most experienced defenders in Duval county. But the Times-Union hypothesizes that Shirk's motives might have been in part to weaken the ability of the county to offer competent defense, or even to punish the most pugnacious defenders that the county had on its payroll. "[McGuinness] also blamed Shirk's endorsement by the police union," they report, "noting several of the lawyers let go were among the most aggressive at questioning officers in court."

Shelly Eckles, one of the "Jacksonville 10," notes she was never interviewed by Shirk, and says she was never disciplined during her tenure at the PD's office, leaving no obvious personality or professional reason for the firing. Mark Woods of the Times-Union recently wrote an article on another one of the doomed, Alan Chipperfield. Woods noted, "Some believe it's politics. Shirk has insisted the reason for the change is money. Chipperfield's salary is $134,000. And while that sounds good to most of us, one thing is certain: Chipperfield could have made more in the private sector."

Many of these defenders, like Chipperfield, took pay cuts when they moved from private practice to the PD. Odd, then, that they were summarily fired when they have previously demonstrated that they are willing to make less money if it means doing the right thing and doing it well. If budgetary concerns were Shirk's sole motivation, he could have asked some of them to take a pay cut while maintaining the viability of the Jacksonville PD's office, but the case of Shelly Eckles shows that that was not Shirk's real motive.

The JaxPolitics blog thinks the problem might be more serious than a politicized department. This situation might have implications for Florida's system of electing Public Defenders as a whole, says the author:

Let’s be honest. How many of us regular folks who aren’t involved in the justice system, are willing to support someone in an elected office who will strongly fight for the rights of an accused person? How many of us are willing to put our votes behind spending money to defend murderers and drug dealers? As evidenced by the recent election in Jacksonville, evidently not enough of us. Yet, with an elected Public Defender the integrity of our justice system requires us to do just that if we are to maintain a healthy legal system.

Meanwhile, those who will not be returning to their offices on January 6th have placed pictures of the Black Spot on their office doors, a reference to the mythical pirate code for being doomed to execution, and a gesture of defiance and unity.

Visit IPF's Website here; sign up to volunteer here; contribute to our work here.

How Do We Prevent False Confessions?

This is a continuation of yesterday's post on false confessions.

There are numerous techniques police can use while interrogating suspects:
• Utilize the physical environment – usually small but brightly lit
• Ask leading questions
• Provide information about the crime scene
• Adapt a confrontational style / get in the suspect’s face
• Conduct extremely long interviews that last for hours or even days
• Deceive the suspect with false suggestions and/or information, like stories of non-existent physical evidence that links them to the crime
• Tell the suspect if they pass a polygraph they can go home, then lie about the polygraph’s results
• And so it goes...

There are several remedies for false confessions that should be implemented immediately by state law:
• Videotape all interrogations, from the reading of rights to the end, with the tape running continuously
• Set reasonable time limits for interrogations
• Never, ever allow minors and people with reduced mental capacity to be questioned without a parent, guardian, or legal representative present
• Make it illegal for law enforcement to lie to suspects

Some of these are so obvious, I can’t believe they require laws to change them. Why in the world do we allow our children to be taken into some back room and interrogated by the police without our presence? That one’s a no-brainer for me. We need to remember that children are children, regardless of the severity of the crime they’re being questioned about.

In Florida, it’s noteworthy that the Broward County Police Department now records interrogations. We don’t know how many others do so. That’s why the Innocence Project of Florida this year initiated a Public Records Request to all law enforcement agencies in the state, asking for their policies on eyewitness identification and the recording of interrogations. Reviewing the responses should tell us how far we have to go to enact responsible change in these areas.

According to the Innocence Project:

The Supreme Courts of Alaska and Minnesota have declared that, under their state constitutions, defendants are entitled as a matter of due process to have their custodial interrogations recorded. In 2003, Illinois became the first state to require by law that all police interrogations of suspects in homicide cases must be recorded.

Over 500 jurisdictions nationwide, including the states of Alaska, Minnesota and Illinois, regularly record police interrogations. A 2004 study conducted by Illinois officials of 200 locations that implemented this reform found that police departments overwhelmingly embrace the measure as good law enforcement whose time has come.

We can only hope that more states, including Florida, follow suit. Sooner rather than later would be good, too.

*Some of the information in this post was taken from “The False Confessions in the Central Park Jogger Case” written by Elaine Cassel and published on December 17, 2002, at Findlaw.

For more information about false confessions, check out our list of recommended books in the Resource section of our Web site.

Visit IPF's Website here; sign up to volunteer here; contribute to our work here.