BY RUMMANA HUSSAIN AND STEFANO ESPOSITO

Staff Reporters

Last Modified: Sep 10, 2013 05:31PM

Carl Chatman walked out of the Dixon Correction Center Tuesday afternoon and into the arms of his tearful sisters and brother. His sister Dretha Miller threw her arms around his neck and cried, saying, “It’s over.”

Chatman’s siblings — Miller and Theresa and Willie Chatman — drove to Dixon to meet their brother after the Cook County state’s attorney’s office officially set aside his conviction for a 2002 rape at the Daley Center. State’s Attorney Anita Alvarez — citing “failures of the past” — also set aside the conviction of Lathierial Boyd, sentenced to 82 years in prison for fatally shooting one man and paralyzing another man outside Wrigley Field in 1990.

“Our work as prosecutors is about seeking justice, even if that measure of justice means that we must acknowledge failures of the past,” State’s Attorney Anita Alvarez told reporters at the criminal courthouse at 26th and California.

“Justice was certainly delayed for Mr. Boyd and for Mr. Chatman, but we are hopeful that with today’s actions, it will not be denied,” Alvarez said.

Prosecutorial Denial….

October 1, 2010October 3, 2010 / tcbdefense / Leave a comment

Orenstein on Prosecutorial Denial in Postconviction Cases of Actual Innocence

Aviva Orenstein (Indiana University Mauer School of Law) has posted Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:
As this memorial volume illustrates, Fred Zacharias wrote insightfully on many aspects of the legal profession, covering a wide-range of ethical topics and analyzing many aspects of lawyers’ work. He was interested in the lives of lawyers and believed they owed a duty to society beyond an exclusive focus on individual clients’ interests.

This Article develops a question that intrigued Fred: Prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.

As Fred himself noted, there may be legitimate reasons for prosecutors to deny access to DNA to every prisoner who so requests. Less easy to understand, however, are the confabulations and attenuated scenarios some prosecutors posit to argue that the accused is guilty despite DNA evidence that demonstrates no link to the crime (and sometimes incriminates a known offender).

This article argues that the psychological concept of denial goes a long way in explaining prosecutors’ conduct. Rather than portraying these prosecutors as megalomaniacal abusers of the adversary system who will protect their win-loss ratios at any cost, a theory of denial posits that prosecutors simply cannot face the fact of a wrongful conviction or its implications for the entire system of justice. Ironically, a prosecutor’s desire to do justice and her self-image as a champion of justice renders the fact of wrongful conviction particularly painful. As a result, some prosecutors go to incredible lengths to deny the obvious rather than facing the fact that the system failed and they may have contributed to the injustice.

Part I of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part II documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. These reactions encompass everything from the prompt release of prisoners to the adamant refusal to acknowledge the relevance of the evidence . Part III attempts to add to the current explanations of why some prosecutors refuse to acknowledge errors even after DNA indicates a wrongful conviction. This Part explores, in addition to traditional explanations involving prosecutorial self-interest, incentive structure, and cognitive biases, the role of denial. Part IV examines the bigger picture of denial, looking at how refusal to accept DNA exonerations may mask deeper concerns about the criminal justice system. Finally, Part V draws on these (?) insights about prosecutorial denial to examine structural solutions, including possible changes to ethical codes, to the urgent problems posed by postconviction innocence.
September 30, 2010 | Permalink

Coming up with the Supremes….

September 29, 2010October 3, 2010 / tcbdefense / Leave a comment

Today’s crim law and procedure cert grants

Issue summaries are from ScotusBlog, which also links to cert documents and opinions below for some of the cases (and likely in all of the cases soon):
Kentucky v. King: Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?
United States v. Tinklenberg: Whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial.
Bullcoming v. New Mexico : whether it violates the Constitution’s right to confront witnesses against the accused for a trial judge to admit the testimony of a crime lab supervisor to discuss a forensic test that the supervisor did not personally conduct or observe.
Freeman v. United States.: whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission has reduced the sentence range, even if the judge had already accepted a plea deal involving a longer time in prison
Sykes v. United States .: whether it is a “violent felony” justifying a longer sentence under the armed Career Criminal Act for a suspect to use a vehicle to flee from police after being ordered to stop

Interesting procedural death penalty case…

August 26, 2010October 3, 2010 / tcbdefense / Leave a comment

Innocence claim rejected: Troy Davis loses challenge”

The title of this post is the title of this terrific synopsis by Lyle Denniston at SCOTUSblog of a big death penalty ruling handed down today. Here is the start of the post along with links to the looong ruling the post discusses:

Carrying out a direct order of the Supreme Court, a federal judge in Georgia made a lengthy new study of a 21-year-old murder case but then ruled Tuesday that a Savannah, Ga., man had not proved that he is innocent of killing a police officer in a fast-food restaurant parking lot. In a 172-page opinion (issued in two parts, found here and here), U.S. District Judge William T. Moore, Jr., ruled that it would be unconstitutional to execute an innocent person, but went on to rule that Troy Anthony Davis “is not innocent.” Treating the case as an unusual one procedurally, Judge Moore said it appeared that he was acting as a fact-gatherer directly for the Supreme Court, so any appeal by Davis may have to go directly to the Justices. He sent a copy of his ruling to the Supreme Court.

(NOTE TO READERS: The judge’s legal and constitutional analysis of the evidence and the issues begins on numbered page 91, which is page 29 of Part II. Up to that point, the opinion is a recitation of the evidence and the history of Davis’s challenges to his conviction.)

A year ago, the Supreme Court sent Davis’s latest challenge — one filed directly with the Justices — to the District Court in Georgia “for hearing and determination.” The order said that the lower court should “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’s] innocence.” The Justices’ unsigned order, issued over the dissent of Justices Antonin Scalia and Clarence Thomas, was apparently approved on a 6-2 vote (Justice Sonia Sotomayor took no part in it.) It was a highly unusual action because the Court does not often order fact-finding by a trial-level court; it more often pronounces the law and then leaves it to lower courts to implement such a ruling. The dissenters called the action an “extraordinary step — one not taken in nearly 50 years.”

Judge Moore closed his opinion by noting that he had carried out the Supreme Court’s mandate by holding a hearing and now ruling on Davis’s habeas challenge. “This Court,” he wrote, “concludes that executing an innocent person would violate the Eighth Amendment to the United States Constitution” — a point long hinted at but not yet specifically decided by the Supreme Court. However, the judge went on to reject Davis’s claim of innocence, summing up: “The evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989.”

In a footnote, the judge added that “while the state’s case may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail’s murder. A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence. To act contrarily would wreck complete havoc on the criminal justice system.” (The judge may have meant “wreak,” not “wreck.”)

August 24, 2010 at 04:04 PM | Perm

Make sure you ask the right questions….

June 22, 2010June 23, 2010 / tcbdefense / Leave a comment

The trial court erroneously failed to ask potential jurors if they understood and accepted four basic constitutional guarantees afforded criminal defendants at trial.
The Illinois Appellate Court, 4th District, has reversed the armed robbery conviction of the defendant, Ahmed A. Yusuf. Champaign County Circuit Judge Thomas J. Difanis presided in the trial court.

In October 2007, Yusuf was convicted of armed robbery. The conviction was affirmed in November 2008. The Illinois Supreme Court denied the defendant’s petition for leave to appeal but issued a supervisory order directing the appeals court to vacate its order affirming the conviction and reconsider the case.

On reconsideration, the defendant argued that the procedure used by the trial court during voir dire failed to allow the venire an opportunity to respond to or be questioned about the juror’s understanding of the four basic constitutional guarantees afforded to criminal defendants at trial.

The appeals court cited a 1984 Supreme Court case, People v. Zehr, 103 Ill.2d 472), holding that a trial court erred during voir dire by refusing defense counsel’s request to ask questions about the state’s burden of proof, the defendant’s right not to testify and the presumption of innocence.

The Supreme Court then amended its Rule 431(b) to assure compliance with its decision in Zehr. The rule provides that a trial judge “shall” ask jurors, “individually or in a group,” if they understand and accept the constitutional guarantees. The rule also provides that the court “shall” provide each juror an opportunity to respond to specific questions about the principles.

During the voir dire in this case, the trial court discussed the constitutional principles but didn’t fully comply with Rule 431(b). “While the court advised the venire en masse of the four Zehr principles, it did not pose the specific questions of whether the jurors understood and accepted all four principles during voir dire,” the appeals court said. “As a result, the court … did not follow the mandate of Rule 431(b) and this failure to comply constituted error.”

The appeals court said the jurors in this case were never asked whether they understood and agreed that the defendant was not required to offer any evidence and that his failure to testify could not be held against him. The appeals court said a defendant’s right not to testify is possibly “the most critical guarantee under our criminal process and is vital to the selection of a fair and impartial jury that a juror understand this concept.”

While the trial court in this case advised the venire en masse or the Zehr principles, it didn’t pose specific questions of whether the jurors understood and accepted any of those principles, the appeals court said.

The appeals court said the trial court’s failure to fully comply with the amended version of Rule 431(b) caused a “complete breakdown of the judicial process that undermines this court’s confidence in the jury’s verdict.” The court’s error was so substantial that it affected the fundamental fairness of the proceeding and denied the defendant a substantial right — a fair trial, the appeals court said.

The appeals court reversed the trial court and remanded the case for a new trial.

People v. Ahmed A. Yusuf, No. 4-08-0034. Justice John T. McCullough wrote the court’s opinion with Justice Sue E. Myerscough and James A. Knecht concurring. Released April 13, 2010.

So you want to be a writer…..

June 10, 2010June 12, 2010 / tcbdefense / Leave a comment

Robbins on Ghostwriting for Pro Se Prisoners

Ira P. Robbins (American University – Washington College of Law) has posted Ghostwriting: Filling in the Gaps of Pro Se Prisoners’ Access to the Courts (Georgetown Journal of Legal Ethics, Vol. 23, No. 2, pp. 271-321, 2010) on SSRN. Here is the abstract:
Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.

This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them – that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way. Limited-scope representation – or “unbundled legal services” – is not an anomaly. Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. Nevertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law. Addressing these concerns, this Article considers the various forms that ghostwriting could take – i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance – and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all. Indeed, disclosing such assistance may, in some instances, actually violate ethical rules. While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.

It happens….

June 4, 2010June 12, 2010 / tcbdefense / Leave a comment

Gould & Leo on Wrongful Convictions

Jon B. Gould and Richard A. Leo (pictured) (George Mason University – School of Public Policy and University of San Francisco – School of Law) have posted One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
In this article the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful conviction. They also argue that the research on wrongful convictions during the last hundred years has uncovered a great deal about how these sources operate and what might prevent their effects. Finally, the authors urge criminal justice professionals and policy-makers to take this research more seriously and apply the lessons learned from a century of research into wrongful convictions.