From The New York Times:
Thirty years after Cornelius Dupree Jr. was imprisoned for rape and robbery, prosecutors in Dallas declared him innocent on Monday in light of new DNA evidence. Mr. Dupree, 51, has served more years in a Texas prison for a crime he did not commit than any of the other 41 people exonerated in the state in recent years.
Answers Scalia:
I do not pretend that originalism is perfect. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.
Peter A. Joy (Washington University School of Law) has posted Constructing Systemic Safeguards Against Informant Perjury (Ohio State Journal of Criminal Law, Vol. 7, p. 677, 2010) on SSRN. Here is the abstract:
Reliance on an informant’s testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system’s current handling of testimony from cooperating witnesses.
The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor’s office could employ to ensure that the trial prosecutor, who is focused on convicting Kingpin, has not been manipulated by Client or has not consciously or unconsciously supplied the facts necessary for Client to manufacture the testimony required to convict Kingpin? What criminal justice reforms would help to prevent or discredit such perjury and make a wrongful conviction less likely? These are some of the additional questions we should be exploring. In my comment, I first illustrate why focusing solely on defense counsel ethics is not wholly sufficient and next briefly discuss some criminal justice system reforms that would better safeguard the accused.
December 22, 2010 | Permalink
Wadie E. Said (University of South Carolina School of Law) has posted The Terrorist Informant (Washington Law Review, Vol. 85, No. 4, 2010) on SSRN. Here is the abstract:
A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant’s services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions.
D. Michael Risinger (Seton Hall University School of Law) has posted Whose Fault? – Daubert, the NAS Report, and the Notion of Error in Forensic Science (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:
The notion of “error” and “error rates” is central both to the Daubert opinion and to the recent National Academy of Sciences Report on the strengths and weaknesses of forensic science in the United States. As might be expected, the NAS Report does a better job of explaining the kinds of error it is concerned with than did the opinion in Daubert. However, to a greater or lesser degree, both fall short of a full consideration of the applicable concept of error, and so doing, they invite confusion about how inaccurate results in forensic science and criminal adjudication may occur, and who if anyone is to blame. This paper examines the notion of error as it might apply in these settings, with due regard to both the philosophical and scientific literature. It concludes that competing notions of normative and objective error have led to unnecessary miscommunication between practitioners of forensic disciplines and their critics, which has resulted in many forensic practitioners feeling unfairly criticized. This in turn has led some in the forensic science community, perhaps understandably, to resist changes in forensic practice that are necessary for the reduction of error in all its forms.
Jane Campbell Moriarty (University of Akron School of Law) has posted Will History Be Servitude?: The NAS Report on Forensic Science and the Role of the Judiciary (Utah Law Review, Vol. 2010, No. 2, 2010) on SSRN. Here is the abstract:
For several decades, the prosecution and its witnesses have maintained that despite little research and virtually no standards, they can match a fingerprint, handwriting, bullet and bullet cartridge, hair, dental imprint, footprint, tire track, or even a lip print to its unique source (collectively, “individualization evidence”). Not only can they match it, they claim, they can do so often without any error rate.
In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack of standards, research, and established error rates, and its failure to rely upon statistical probabilities to estimate the likelihood of a match. Since its inception, the Innocence Project has exonerated more than 250 people, a majority of whose convictions have involved inaccurate or even fraudulent forensic science testimony, including individualization evidence.
Despite the lack of proof that such evidence is scientifically reliable (and continued exculpations), courts have rejected most challenges to individualization evidence and continue to admit such testimony. With every exoneration, proof mounts that forensic science cannot do what it claims to be able to do with the precision alleged. By not requiring minimal standards for the reliability of individualization evidence, courts have allowed the forensic science system to operate without any checks and balances and to convict innocent people in numbers we can only estimate.
In February 2009, the National Academy of Sciences issued its long-awaited and groundbreaking report on the status of forensic science, Strengthening Forensic Science in the United States: A Path Forward (“the NAS Report”). The NAS Report is a scathing indictment of both the state of the forensic science system and judicial rulings on such individualization evidence.
This Article discusses the findings of the NAS Report, relevant cases that predate the report, and some cases decided since the report. It posits that the judiciary, which has created a standard of reliability, has failed to hold prosecutorial expert evidence to that standard. Using examples from history and modern cognitive science explanations, the Article tries to explain why the judiciary has been so unwilling to rigorously examine forensic science evidence and urges the judiciary to rethink its perspective going forward.
While the NAS Report suggests an overhaul of the current system, that overhaul is a contentious idea that may well not occur in the near (or even longer) future. Thus, a current crisis exists that the judiciary must address in its day-to-day decision making. The Article suggests how the judiciary can become a more effective crucible for testing the strength and limitations of forensic science.
Whether a fleeing suspect, who was intentionally shot in the back by police but not immediately arrested, was “seized” for Fourth Amendment purposes.
Illinois Appeals & Post Convictions 
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