Author: tcbdefense

27 years and now he is free….

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Cleared, and Pondering the Value of 27 Years”

The New York Times has the story:
HOUSTON — Since a judge let him out of prison for a rape that prosecutors now say he did not commit, Michael A. Green has had trouble sleeping.
. . .
He also ponders, he says, whether to take a $2.2 million compensation payment from the State of Texas or file a civil lawsuit in the hope of exposing the truth about the investigation that led to his incarceration. To receive the compensation, he must waive the right to sue.
. . .
The story of Mr. Green’s nightmarish imprisonment — and how a prosecutor, Alicia O’Neill, eventually unearthed biological evidence that led to the real culprits — throws a harsh spotlight on an uncomfortable reality in American justice: the identification of a suspect in a lineup or in an array of photos is not always reliable.
More than three-quarters of the 258 people exonerated by DNA tests in the last decade were convicted on the strength of eyewitness identifications, according to the Innocence Project, the Manhattan-based organization dedicated to freeing innocent prisoners.

False Confessions

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The Substance of False Confessions
Brandon Garrett -University of Virginia School of Law

Posted in Confessions, Criminal Procedure, DNA, Police

The scholarship of interrogations has taken a turn from procedure to substance. The Supreme Court’s landmark criminal procedure rulings regulating modern psychological interrogations remain static, inviting lingering decades-long debates over whether the Court correctly decided decisions such as Miranda. Meanwhile, psychologists increasingly study not the legal regulation of interrogations, but police practices inside the interrogation room. Saul Kassin, Gisli Gudjonsson, Richard Ofshe, Richard Leo, and many others have shed light, through landmark experimental and empirical work, on how modern psychological interrogation techniques can generate false confessions. The American Psychology and Law Association released a White Paper on the subject, surveying the literature and recommending a series of changes to interrogation procedures.2 Doing so shed light on the phenomenon of confession contamination. Police may, intentionally or unintentionally, prompt the suspect on how the crime happened. Yet false confessions do not happen simply by happenstance. They are carefully constructed during an interrogation and then reconstructed during any criminal trial that follows. Constitutional criminal procedure does not regulate this critical phase of an interrogation. The Constitution requires that the ubiquitous Miranda warnings be provided and that the bare admission of guilt have been made voluntarily under the totality of the circumstances. That admission of guilt, while important, is only a part of the interrogation process. After the bare admission of guilt, police conduct a lengthy “confession-making” phase. Much of the power of a confession derives from the lengthy narrative that follows. For a person to confess in a convincing way, he must be able to say much more than “I did it.” The confession narrative not only plays an important role in fleshing out the suspect’s motive and culpability, but properly used, it can be used to test the accuracy of the confession. Police are trained to evaluate the suspect’s knowledge of how the crime occurred, by asking open-ended questions to assess whether the suspect can freely volunteer specific details that only the true culprit could know.

The false confessions in DNA cases all involved very long interrogations, and most involved vulnerable juveniles or mentally disabled individuals. In all cases but one (95% or 36 of the 38 exonerees for whom trial or pre-trial records could be obtained) police reported that suspects confessed to a series of specific details concerning how the crime occurred. As the prosecutor in Robert Miller’s case briefly put it, “He supplied detail after detail after detail after detail. And details that only but the killer could have known.”3 The non-public facts contained in confession statements then became the centerpiece of the State’s case. Although defense counsel moved to exclude almost all of these confessions from the trial, courts found each to be voluntary and admissible, often citing to the apparent reliability of the confessions. The facts were typically the focus of the State’s closing arguments to the jury. Even after DNA testing excluded these people, courts sometimes initially denied relief, citing to the seeming reliability of these confessions. For example, Nathaniel Hatchett had been excluded by DNA testing at the time of trial, but postconviction, the court concluded that “the prosecution presented overwhelming evidence” where the “defendant’s statement included information that only the perpetrator of the crimes would know.”4 The ironic result is that the public learned about these false confessions in part because of the contaminated facts. These false confessions were so persuasive, detailed, and believable that they resulted in convictions upheld during appeals and habeas review. After years passed, and appeals and habeas petitions were all denied and dismissed, these convicts had no option left but to seek the DNA testing that finally proved their confessions false.

False confessions uncovered by DNA testing are almost certainly not representative of other false confessions, much less confessions more generally. The 40 cases examined, consisting chiefly of confessions to 1980’s rape-murders, cannot speak to how often people confess falsely. While unusual, only in such examples of known false confessions can one assess whether detailed or supposedly non-public facts contaminated a confession. These data provide a set of examples of a very troubling problem that deserves further study.

One reason why these examples are important is that courts, lawmakers, and executives, while perhaps increasingly aware that false confessions can occur, continue to ignore that there is even a possibility that false confessions may appear uncannily reliable precisely because of the insidious problem of confession contamination. Justice Alito, concurring in U.S. Supreme Court in District Attorney’s Association v. Osborne, noted that “[a]fter conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime.”5 Of course, if it is true that Osborne is innocent, he certainly could have known the details of his case. His “confession” to the parole board was by definition contaminated because he could very easily admit guilt “in detail” based on the victim’s account of the crime that he heard at his own trial. In one additional recent example, Virginia’s Governor granted a conditional but not full pardon in the “Norfolk Four” case, despite DNA exclusions, citing to the “cumulative power” of confession statements, but never acknowledging that the statements could have been contaminated.7 The problem of contamination is thus not limited to the accuracy of the crime narrative, but also extends to the interrogation room shaping of mens rea and of defenses that the suspect might otherwise rely upon. We should look more carefully at the substance of scripts used by police interrogators and the substance of statements by suspects regarding defenses and mens rea, and not just crime details.

Perhaps the prolonged involvement of law enforcement in generating a confession, true or false, should itself raise concerns about possible contamination. Barry Feld’s work reviewing recorded juvenile interrogations in Minnesota suggests that the typical interrogation of a suspect lasts much less than an hour, and not hours, and without prolonged questioning, elaborate ruses, or schemes designed to produce coercion. Rather, in those interrogations of juveniles, many of which produced confession statements, police used open-ended questioning designed to elicit a narrative, together with questions designed to directly confront them with an accusation that they committed the crime or accusing them of lying. Other studies suggest that the vast majority of interrogations, even in more serious cases, are fairly short and benign. Feld asks us to consider, “Are confronting suspects with false evidence and lying during interrogation necessary evils?”8 The over-the-top and elaborate psychological techniques used in lengthy interrogations described in police manuals and used in many of these DNA exonerees’ harrowing interrogations may not be the norm. Perhaps such lengthy interrogations are needed in certain difficult and serious cases. However, scholars are right to increasingly scrutinize lengthy interrogations using complex confession-making tactics—particularly if the ornate storytelling, narrative formation, fabrication, deception, threats, psychological manipulation, and the like occurs in darkness, absent any electronic recording.

A series of reforms could reorient our criminal system towards the substance of confessions. First, although constitutional criminal procedure could regulate reliability, such constitutional change is unlikely. However, an understanding of the vulnerability of confessions to contamination can also inform courts reviewing trials postconviction, particularly in cases involving persons vulnerable to suggestion, such as juveniles and mentally disabled individuals. Second, unless interrogations are recorded in their entirety, courts may not be aware of what transpired during the confession-making process, much less detect contamination of facts, especially when no DNA testing can be performed. In recent years there has been a concerted movement towards reform. In response to some of these false confessions, state legislatures, police departments, and courts have increasingly required videotaping of entire interrogations. Third, additional police procedures can safeguard reliability, such as procedures intended to assure against contamination, to assess suggestibility of vulnerable suspects, and to avoid coercion postadmission.

Contamination of confessions is to a great degree preventable, and the remedy involves making interrogations less secretive. The remedy—electronic recording combined with reliability review—may produce benefits to law enforcement and to society beyond detecting errors. The Supreme Court complained in Miranda, “Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.”9 Recording will help to close that gap in our knowledge about interrogation practices. In most cases, police will document professional, brief, accurate, and unprompted confessions. However, recording and review will also help to identify the hopefully dwindling number of contaminated false confessions, which before the advent of DNA technology had remained shrouded in secrecy and darkness. Sunlight in the interrogation room will bring interrogation practices out into the open, so that we can better understand and evaluate them. That shift towards reviewing the substance of confessions has the potential to enhance confidence in both the accuracy and legitimacy of the criminal process.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Brandon L. Garrett is an Associate Professor of Law at the University of Virginia School of Law.

So says Lord Black….

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A must-read take on American justice courtesy of now-free Lord Conrad Black

As detailed in this news report, “media baron Conrad Black, released from jail this month on a two-million-dollar bond, lashed out at the US justice system Saturday in a column written for Toronto’s National Post.” This first-person column is available at this link under the headline “Conrad Black: My prison education,” and here are choice excerpts from this weekend’s must-read:
In my 28 months as a guest of the U.S. government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so, now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years….

t had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.

And I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody.

Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu. America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency.

Are we not a land of immigrants…apparently not in Arizona

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2. Sen. Kyl: Repeal 14th Amendment

Should we start punishing kids for their parents’ behavior? Sen. Jon Kyl
(R-AZ) wants to repeal the 14th Amendment, which says that anyone born
here is an American citizen. Kyl wants the U.S.-born kids of illegal
immigrants to be denied citizenship, the senator said on ‘Face the
Nation.’ He supports a proposal from Sen. Lindsey Graham (R-SC) – known
on the far right as “Senator Grahamnesty” for his earlier
pro-immigration stance derided as amnesty – to amend the Constitution to
delete this right established in 1868 to prevent Southern states from
denying citizenship to slaves. “The 14th Amendment [has been]
interpreted to provide that if you are born in the United States, you
are a citizen no matter what,” Kyl said. “So the question is, if both
parents are here illegally, should there be a reward for their illegal
behavior?”

Interesting article on police cooperation…..

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Bradford & Jackson on Cooperating with the Police

Ben Bradford and Jonathan Jackson (pictured) (Scottish Centre for Crime and Justice Research and London School of Economics & Political Science – Methodology Institute) have posted Cooperating with the Police: Social Control and the Reproduction of Police Legitimacy on SSRN. Here is the abstract:
Calling upon and assisting police officers are acts of public cooperation that link informal and formal mechanisms of social control. An in-depth study of seven London neighborhoods investigates the relationships between (a) cooperation with the police, (b) public trust in police fairness and effectiveness, and (c) public perceptions of everyday social regulation processes. Cooperation with the police is associated first with high levels of public trust in procedural fairness, second with confidence that local residents will intervene on behalf of the collective good, and third with heightened concerns about disorder and the loss of authority and discipline in society. We conclude with the idea that cooperation is shaped by trust in the police and is reinforced and challenged by a complex set of relational concerns. Moreover, by recognizing and supporting the function of the police to fight crime and administer justice, acts of cooperation both constitute and confer police legitimacy.
July 31, 2010 | Permalink

Finally…..

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JURIST] The US House of Representatives [official website] approved a bill Wednesday that would reduce the sentencing disparity between crack and powder cocaine offenses. The Fair Sentencing Act of 2010 [S 1789 materials] would amend existing law to reduce the current sentencing ratio from 100:1 to 18:1. Under the existing law passed in 1986, an individual possessing five grams of crack cocaine would receive a mandatory five-year prison sentence, while an individual possessing powder cocaine would need to have 100 times that amount to receive the same sentence. Human Rights Watch [advocacy website] praised [press release] the bill’s passage, stating that the current law also created a racial disparity, with African Americans comprising 79.8 percent of all offenders sentenced for crack cocaine violations. Attorney General Eric Holder [official website] also supported [statement] the bill’s passage, stating that it will “go a long way toward ensuring that our sentencing laws are tough, consistent, and fair.” House Judiciary Committee member Lamar Smith (R-TX) [official websites] was the only member to speak out against the bill [NPR report], arguing that reducing penalties could lead to increased violence in communities [press release]:
Crack cocaine is associated with a greater degree of violence than most other drugs. And more than any other drug, the majority of crack defendants have prior criminal convictions. … I cannot support legislation that might enable the violent and devastating crack cocaine epidemic of the past to become a clear and present danger.
According to a cost estimate [text, PDF] published by the Congressional Budget Office [official website] in March, the Fair Sentencing Act would save the federal prison system $42 million between 2011 and 2015. The bill will now be sent to President Barack Obama [official website] for his consideration and signature. Obama called for a reduction in the sentencing disparity during his presidential campaign in 2008.
The bill was introduced in the Senate by Dick Durbin (D-IL) [official websites] and was passed in March, less than a week after the Senate Judiciary Committee unanimously approved the bill [JURIST reports]. Last year, the House Judiciary Committee voted 16-9 to approve a bill [JURIST report] that would have completely eliminated the sentencing disparity between the offenses. In April 2008, a study released by the US Sentencing Commission (USSC) [official website] reported [study, PDF; JURIST report] that more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced under an amendment to the Federal Sentencing Guidelines [materials]. In 2007, the USSC voted unanimously [JURIST report] to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties [press release].

from San Francisco….

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Civilians take on police work in SFPD program
John Coté, Chronicle Staff Writer
Sunday, July 25, 2010
(07-25) 18:25 PDT SAN FRANCISCO — If you find your home or car broken into in San Francisco, sometimes police respond in minutes. Other times it takes hours.

Fingerprints and DNA evidence are often not collected, Police Chief George Gascón said. To do so, a separate crime scene technician has to be called out, which could stretch into the next day.

“When the police get there, you’ve been waiting for three, four, five hours,” Gascón said. “By this time, you’re really fit to be tied.”

That’s all supposed to change under a pioneering and controversial test program included in the city’s new budget that will use civilian investigators to respond to nonviolent crimes like burglaries or car break-ins, freeing up police officers to focus on crimes in progress or dangerous offenders.

It’s designed to improve response times across the board while giving victims better “customer service” and detectives more evidence that can be used to catch criminals – for less than the cost of hiring more officers.

e-engineering policing’

Gascón bills it as more efficient policing, although he’s facing stiff opposition from the city’s police union, which is wary of this latest effort to “civilianize” the department.

“This is really about re-engineering policing,” said Gascón, who started developing the idea about five years ago after learning about civilian police uses in Great Britain. “It’s a program that I believe will increasingly become the model around the country.”

Under a $955,000 pilot project to begin in January, 15 civilian investigators trained to interview victims and witnesses, write reports, take crime scene photos and collect fingerprint and DNA evidence would respond to less-serious cases where the crime occurred some time ago and no perpetrator is believed to be nearby. The civilian investigators would work in one or two of the 10 district stations.

Rather than making victims wait indefinitely, civilian investigators could schedule an appointment over the phone for a set time. Civilian staff wouldn’t be called away for a crime in progress and would also be trained to offer crime prevention tips, Gascón said.

“Their job will be to basically start handling all of those calls that do not require someone with a gun,” he said.

Some national experts say it’s an innovative plan, but critics of similar programs in Britain have raised concerns that civilians could miss important clues and aren’t as accountable as police officers.

nion boss skeptical

The head of San Francisco’s police union maintains that civilians shouldn’t be collecting evidence that could prove pivotal to a case. That would present “a huge chain-of-custody problem” at trial and a ripe target for cross-examination on whether the evidence was properly collected and securely stored, said Gary Delagnes, president of the San Francisco Police Officers Association. “I am in no way in support of civilians going out and doing that,” Delagnes said. “Let’s say they go to a 3-day-old burglary, dust for fingerprints, take a report and all of a sudden they find out the guy who committed that burglary was a serial murderer. You’re going to have a civilian who has to testify in court in a murder trial, and it’s going to be a mess.”

Gascón noted that civilian crime scene technicians already testify in major criminal cases and that the new investigators would receive identical training.

“In most major cities around the country, civilians go to court every day and testify about evidence,” Gascón said. “There’s nothing magic about having a police officer testify in court. They do it well because they’re trained for it.”

Solid training, thorough background checks and proper oversight are needed for the program to work, said Police Commissioner Jim Hammer, a former San Francisco prosecutor.

“The devil is in the details,” Hammer said.

oing ‘more with less’

Gascón’s plan comes as cities like Oakland are laying off dozens of officers and stopping active investigations of the types of crimes San Francisco’s new civilian investigators would handle.

“You can actually do more with less,” said San Francisco Mayor Gavin Newsom. “This is a way of achieving a goal in a very, I think, strategic way.”

The program, modeled on one Gascón introduced while chief in the Phoenix suburb of Mesa, Ariz., before being hired in San Francisco last year, comes as the chief expects 78 officers to retire this year, positions the city doesn’t have the money to fill. Civilian investigators can be hired with salaries ranging from $47,000 to $57,000 a year, compared with base salaries ranging from $88,000 to $110,000 a year for police officers, according to city figures.

Civilians are also cheaper to equip. In Mesa, the civilian investigators drive unmarked cars and carry handheld radios and pepper spray, rather than carrying guns, wearing bulletproof vests or driving outfitted patrol cars.

Gascón, though, said his plan is not focused on cutting costs.

“This is much broader than simply a response to bad economic times today,” Gascón said. “This is about looking at what policing is going to look like in the next 30, 40, 50 years.”

Departments nationwide have used civilians for years as crime scene technicians or to handle minor accident investigations, or to assist detectives with phone work. But none in the country appear to have combined all the elements of Gascón’s program – particularly having civilians double at taking initial reports and processing a scene for evidence.

great idea’

“I think it’s a great idea,” said Craig Fraser, director of management services for the Police Executive Research Forum, a Washington think tank hired to recommend how to modernize San Francisco’s police force before Gascón arrived.

“The whole idea is you preserve the most expensive resources for when you actually need an immediate response,” Fraser said.

In Mesa, some officers initially saw the program as a threat to their jobs but soon called for it to be expanded because the civilians took the minor cases with automatic paperwork, said Sgt. Stephanie Derivan, who oversees the civilian investigators there.

“The officers were excited because the civilian investigators were going to be taking the ‘paper calls,’ as we refer to them,” Derivan said. “We like to hunt down bad guys, chase them and put them in jail.”

The program started in one district in Mesa in June 2009 and is now operating across the city of about 460,000 residents.

During the first year, the district with civilian investigators saw its response time on emergency calls drop 9 percent, compared with a 5 percent reduction citywide, according to Mesa police data.

Civilian investigators contacted 78 percent of the victims they dealt with in less than an hour, Derivan said.

Since the program’s inception, evidence from civilian investigators has generated 138 matches with the national fingerprint database, resulting in 41 arrests, including one man suspected of 16 commercial burglaries, Derivan said.

The program has also generated six hits on the national DNA database, resulting in three arrests, Derivan said.

“We have identified several serial criminals,” she said.

uestions remain

Despite successes in Mesa, Delagnes argues San Francisco has more complex and serious crime.

“In a place like Mesa it might work,” Delagnes said. “Here you have big-city defense attorneys, big-city public defenders.”

He called for retired police officers to fill the new positions.

Previous efforts to increase civilian staff at the Police Department have also met with resistance.

A 1994 Charter amendment requires the city to have 1,971 full-duty officers – a threshold that has rarely been met. Voters approved a ballot measure in 2004 pushed by then-Supervisor Tom Ammiano that allowed more than 150 police jobs to be filled by civilians under the argument it was inefficient to have sworn officers doing clerical work. An opponent at the time, Barbara Meskunas of the Coalition for San Francisco Neighborhoods, warned: “If this thing passes, within five years we will have a public safety emergency on our hands.”

Ammiano said that has yet to happen.

“There was institutional resistance to the change,” Ammiano said. “It took some convincing, but now people are seeing it as beneficial, not as a threat.”

E-mail John Coté at jcote@sfchronicle.com.