Prosecutorial Denial….

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

Innocence rejected…..

Innocence claim rejected
Troy Davis loses challenge
Lyle Denniston | Tuesday, August 24th, 2010 1:54 pm
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.”)

Judge Moore noted that the state of Georgia “concedes that it would be unconstitutional to execute an innocent man, apparently abandoning its initial arguments to the contrary.” The state’s most recent argument, the judge said, was that he should simply reject Davis’s claim of innocence on the merits, and bypass the question of whether a court may ever recognize a claim of innocence as a bar to execution. The judge said he had spent significant time and effort on the innocence issue, so would go ahead and decide it.

The judge appeared to divide the innocence issue under the Constitution into two parts: first, may a court ever recognize a new claim of innocence, separate from any flaws at the trial leading to the guilty verdict, as a basis for overturning a conviction, and, second, if such a claim is allowed, does it mean that an individual who successfully proves that he is innocent cannot be executed without violating the Eighth Amendment.

Examining the Supreme Court’s most significant ruling on a claim of innocence based on new, post-trial evidence — Herrera v. Collins in 1993, Judge Moore said it appeared that a majority of that Court would have recognized the authority of a court to hear and decide such a claim (even though it did not decide that finally), and intimated that proof of such innocence would make going ahead with an execution a violation of the Eighth Amendment. His own analysis of these “open” questions, the judge said, led to the conclusion that courts in habeas cases may consider such “free-standing” post-trial innocence claims and, finding innocence, order the individual released — and exempt from execution.

The judge reasoned that, if a person can show innocence despite the jury verdict, that means that the person has “a total lack of culpability,” and such a lack bars capital punishment. The judge went on to note that, since the Herrera case was decided, 47 states and Washington, D.C., have passed laws that were designed to help innocent convicts prove that their convictions were erroneous. That, he found, contributes to a developing social consensus that executing an innocent person would be unconstitutional. “If states were not concerned with preventing punishment of the wrongfully convicted, it would be difficult to understand why they would allow validly convicted persons avenues with which to secure evidence of their innocence,” he wrote.

After drawing that Eighth Amendment conclusion, Judge Moore proceeded to analyze how much proof of innocence would demonstrate “actual innocence.” He noted that Davis’s lawyers had proposed a standard that innocence could be found based upon proof of “a clear probability that any reasonable juror would have reasonable doubt about his guilty,” with “clear probability” meaning a 60 percent chance. By contrast, the judge noted, the state of Georgia proposed that innocence could be found only if “no rational trier of fact could find proof of guilt beyond a reasonable doubt.”

The judge resolved the dispute by ruling that, to establish a claim of actual innocence, a person previously convicted at a fair trial “must show by clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence” that was developed after the trial. The judge then applied that to the new evidence upon which Davis’s lawyers had relied in claiming that he was wrongly convicted.

When Davis’s lawyers took his challenge directly to the Supreme Court last year (with a plea for an “original” habeas writ), after failing several times in lower courts, they claimed that seven of the nine witnesses who had testified at the trial that Davis was the killer have since recanted their trial testimony, saying they were coerced by police or were subjected to questionable interrogation tactics. The attorneys also contended that new evidence showed that another man at the scene — Sylvester “Redd” Coles — had killed Officer MacPhail.

Judge Moore devoted 40 pages of analysis to the new evidence offered by Davis’s defense lawyers, and found it did not meet the standard the judge had imposed. “Mr. Davis,” the judge concluded, “vastly overstates the value of his evidence of innocence.” The judge rejected the claims of two eyewitnesses that “Redd” Coles was the shooter, saying their identifications “are not credible,” and, in addition, there was no corroboration of the claim. The judge dismissed other new evidence as “too general to provide anything more than smoke and mirrors.”

The judge found that, of seven claimed recantations of trial testimony, only one was “a meaningful, credible recantation,” but it was diminished because “it only confirms that which was obvious at trial — that its author was testifying falsely.”

“Ultimately,” the judge concluded, “while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.” The judge thus denied Davis’s plea for a habeas writ. “The Clerk of Court,” the judge wrote, “is directed to file a copy of this order on the docket and forward this order to the Supreme Court of the United States.”

The route that Davis’s lawyers may take from this point on, the judge indicated, is not clear. The judge said he was not sure of “the jurisdictional effects” of a Supreme Court order transferring a case from its docket to that of a District Court to gather evidence. Citing a federal law on habeas law, Judge Moore said it suggested that habeas petitions filed directly in the Supreme Court are transferred to a District Court “to avoid burdening the Supreme Court. Functionally, then, this Court is operating as a magistrate for the Supreme Court, which suggests appeal of this order would be directly to the Supreme Court.” The judge added, however, that he had been “unable to locate any legal precedent or legislative history on point.”

Presumably, the defense lawyers for Davis either could file a petition in the Supreme Court to review Judge Moore’s decision, or they could pursue an appeal to the Eleventh Circuit Court, or perhaps they could attempt both, just to be sure.

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27 years and now he is free….

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.