Tagged: conviction

Does this Government Conduct “Shock the Conscience of the Ninth Circuit?”

The Ninth Circuit recently upheld a due process challenge to an ATF sting that targeted the poorest minority neighborhoods in Phoenix to court individuals – with a promise of riches – to break into and rob local fictitious, non-existent stash houses.  Many of these individuals had no criminal records; almost all were out of work and poor.

Pace Professor Bennett L. Gershman analyzes the ATF’s penchant for creating fictitious crimes (see e.g., Operation Fast and Furious) in a recent Huffington Post column.  Click here to read the entire post.

Does Prosecutorial Misconduct Need to Be Punished to Make a Difference?

In his newest op-ed New Commission to Regulate Prosecutorial Misconduct, Prof. Bennett Gershman of Pace Law School introduces the nation’s first public commission, proposed in New York State, that is designed to investigate complaints of misconduct by prosecutors and impose discipline upon prosecutors who violate the rules.

Prof. Gershman recaps some of the most egregious recent instances of prosecutorial misconduct and points out that prosecutors are rarely disciplined for their misconduct.   He points out that misconduct by prosecutors is costly because it leads to wasting money on re-litigating the same case over and over, it diminishes public confidence in the criminal justice system when prosecutors are not held accountable for their misconduct, and it imposes unimaginable pain and suffering on the innocent and their families. Prof. Gershman then concludes that

a commission that is independent from the legal profession, and independent from the prosecutor’s office, will be able to conduct investigations in a nonpartisian, non-political, and objective manner.

Read the full Bennett L. Gershman, New Commission to Regulate Prosecutorial Misconduct, HuffPost Crime (May 20, 2014).

Many Wrongful Convictions: Not So Many Answers

Recent studies have estimated that between 2.3% and 5% of all prisoners in the United States are factually innocent. According to the Innocence Project, if just 1% of all prisoners were innocent, that would mean that more than 20,000 innocent people are currently in prison. Of course, one would assume that such staggering numbers would prompt some type of national examination to determine why the criminal justice system is continually breaking down.  At the very least, the continued unveiling of wrongful convictions nationwide must lead to some type of reform that would prevent future injustices from occurring. Unfortunately, the Criminal Justice system has failed miserably in its attempts to deal with these issues, despite its realization that wrongful convictions continue to occur. As Professor Bennett L. Gershman of Pace Law School recently noted

there is hardly ever a postmortem of a derailment in the criminal justice system, as there typically is when a train derails, or a plane crashes.

Professor Gershman’s editorial, Don’t Let the Prosecutor Off the Hook, discusses how the justice system has simply forgotten to undertake its duty to determine the causes behind this tragic epidemic that has continually plagued our justice system. Citing the recent exoneration of Jonathan Fleming, who had spent 24 years in prison for a murder that he did not commit, Professor Gershman explained

Nobody, certainly nobody in the media, has attempted to examine this case more closely and to ask probing questions about how this human tragedy could have happened? We don’t investigate how criminal cases miscarried. We don’t investigate how the system malfunctioned. And we don’t investigate those officials who caused the malfunction.

Evidently, there are probably thousands of cases in which an innocent person has been convicted. Yet, the process of finding answers or solutions to the systemic flaws causing wrongful convictions has been a snail’s race.  As Professor Gershman implicitly points out, however, the prospect of finding a solution is undermined by society’s passive approach to the problem. Moreover, the likelihood of successfully confronting this important issue can never be truly realized until the wrongdoers are actually held accountable for their actions and no longer allowed “off the hook.” Of course, as Prof. Gershman notes, the first step will be to simply “ask probing questions about how this human tragedy could have happened?”

Related Readings

Judges Quarrel About Counsel’s Silence During Prosecutor’s PowerPoint Summation

Recently, the New York Court of Appeals affirmed the conviction of a defendant accused of killing her husband’s one-year-old daughter, although she had claimed that her counsel was ineffective for failing to object to the prosecution’s questionable PowerPoint presentation during summation. People v. Santiago, NY Slip Op 01261 (2014). At trial, the prosecution claimed that the defendant, Cheryl Santiago, had suffocated her husband’s child after becoming frustrated that the child would not fall asleep. Id. at *5. An expert witness for the prosecution testified that it would have taken the defendant approximately four to six minutes to suffocate the child by using her hand to cover the child’s mouth and nose. Id. at *6.

In summation, the prosecutor presented to the jury  a six minute PowerPoint presentation that consisted of a series of slides using a postmortem photograph of the child. Alluding to the expert’s opinion regarding the amount of time it took for the child to suffocate, the prosecutor suggested to the jury that “if there’s any question in your mind how long six minutes take, take a look at this.” Id. at *7. Without objection from defense counsel, the prosecutor proceeded to play the PowerPoint slides, “with each successive slide progressively fading, until the final slide was entirely white, thus eliminating the image of the [child].” Id.  Notably, some of the slides also contained captions that described the child’s deteriorating medical condition –stating that at one and a half to two minutes- “struggle ends;” four minutes- “brain death occurs;” and four and a half to six minutes –“cardiac death.” Id.

The Court rejected the defendant’s claim that trial counsel was infective for failing to object to the PowerPoint presentation, noting that counsel’s lapse was not a “clear-cut” or “dispositive” omission. Id. at *13. The Court observed that a postmortem photograph itself was properly admitted at trial, and that “[t]he slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury’s emotions.”Id.

The Court did note that it did not know how the PowerPoint presentation aided the jury in its fact-finding function, or how it was relevant to the cause of the child’s death. Id. Furthermore, the Court also observed that the defendant’s failure to make a timely objection to the PowerPoint’s admission –which would have required the trial court to rule on its admissibility- precluded the Court to extend its inquiry further as to whether the trial court abused its discretion and that such error required a reversal of the judgment of conviction. Id. at *14.  In noting this observation, however, the Court implicitly suggested that its inquiry of the matter was cut short due to counsel’s failure (i.e. ineffective assistance of counsel) –and, by its own admission, an objection would have placed the trial court in an unlikely situation of finding that the PowerPoint evidence had any probative value, and even if so, that its value outweighed its prejudicial impact. Id. at *15 (conceding that the Powerpoint failed to “aid[] the jury in its fact-finding function”).

In dissent, Judge Rivera observed that the PowerPoint presentation had manipulated the evidence and was “designed to inflame the passion of the jury in order to engender prejudice against the defendant.” Id. at 1 (dissent, j. Rivera). She concluded that the Court had erred in not finding that counsel’s failure to object to the PowerPoint presentation had amounted to ineffective assistance of counsel. She noted that counsel’s lapse permitted the prosecution to taint the jury’s deliberative process –which denied the defendant a fair trial. Id. at (“The prosecutor’s use of this Powerpoint imagery was an impermissible attempt to secure a verdict based on emotion and repulsion for the defendant, rather than facts.”).

Judge Rivera was also extremely troubled by the inflammatory nature of the Powerpoint, noting that “[a]ny doubts as to the emotional responses engendered by the presentation are easily dispelled by viewing the slide show, wherein the picture of a 21 month old child, in her pink pajamas, with white froth on her lips, her body prone and lifeless, is projected over and over, fading slightly with each slide, until all that remains is a white background and the memory of her tiny body. One simply cannot be but moved by this depiction.” Id. at 3.

Notably, the ever-changing dynamics of courtroom advocacy due to the technological advances in “trial presentation” software may continue to cause issues for criminal defendants when utilized in an improper fashion by prosecutors. Although such technology can provide each party a better, faster and clearer way of presenting information than conventional trial form, it can also lead the jury away from “the four corners of the evidence” and hinder the truth seeking process. Hopefully, the courts will use caution when allowing evidence to be presented in an unconventional format, and take consideration of the fact that a juror may become more occupied with the entertainment value of the presentation rather than the relevance of the information being conveyed.

Related Readings

  • People v. Caldavado, 78 AD 3d 962 (2nd Dept. 2010) (permitting a “PowerPoint presentation as to the injuries associated with shaken baby syndrome and in allowing an expert witness to shake a doll in order to demonstrate the force necessary to inflict shaken baby syndrome.”).
  • People v. Yates, 290 AD 2d 888 (3rd Dept. 2002) (finding no error in the presentation of  a computer-generated video demonstrating the mechanics of “shaken baby syndrome.”).

NY Court of Appeals Upends Police Tricks Behind Interrogation Doors

False confessions have long been recognized as one of the leading causes of wrongful convictions. Case studies have proven that an individual’s confession to a crime is not always indicative of the confessor’s actual guilt. In fact, a number of external factors may lead an individual to falsely confess to committing a crime. According to studies conducted by the Innocence Project, many false confessions have been prompted by conditions in which the confessor was placed under  duress during police interrogations, or was prodded to give false information as a result of police coercion or subterfuge tactics. Laurie Shanks, clinical professor of law at Albany Law School in Albany, recently explained that “[t]here’s a perception that people don’t confess to crimes they didn’t commit, [b]ut the science is that absolutely they do.”

Yet, the rule of law determining the voluntariness of a confessor’s statement, when such statements are adduced by police subterfuge, has remained a vital and perplexing issue within our criminal justice system. The admissibility of such confessions has been a hotly debated topic among criminal defense practitioners and prosecutors, irrespective of recent case studies proving the fallibility of such confessions. In spite of recent findings, prosecutors have continued to hold the upper hand when arguing that such confessions are voluntary and admissible at trial, relying on the proposition that certain police ruses are essential to conducting meaningful interrogations of suspects, and vital to the police’s ability to expeditiously solve certain crimes.  Under this guise, the Courts have heeded to the government’s “demands” and have consequently become more laxed in uprooting such questionable police tactics –noting that confessions are “essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” McNeil v. Wisconsin, 501 U.S. 171, 181 (1991). As such, courts around the nation have routinely accepted that “deceit and subterfuge are within the ‘bag of tricks’ that police may use in interrogating suspects.” State v. Schumacher, 37 P.3d 6, 13-14 (Idaho Ct. App. 2001); See also United States v. Bell, 367 F.3d 452, 461 (5th Cir. 2004) (observing that deception is “not alone sufficient to render a confession inadmissible”).  

In New York, however, it appears that the courts are becoming less reluctant to address this significant legal issue , and more inclined than many of their sister state courts to fully determine on a case by case determination whether a confession could be deemed involuntary when police misrepresentations work to overcome a confessor’s will. See N.Y. Criminal Procedure Law § 60.45 [2][b][i]  (treating as “involuntarily made” a statement of a defendant that was  elicited “by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself”).

Notably, the New York Court of Appeals has recently made clear that not all police subterfuge is acceptable during the interrogations of suspects. People v. Thomas, 2014 WL 641516 (N.Y. 2014). In Thomas, the defendant had been prodded by police to take responsibility for injuries suffered by his four-month-old son, who died from intracranial injuries purportedly caused by abusively inflicted head trauma, in order to save his wife from arrest. The Court held that the defendant’s confession,  admitting that he had inflicted traumatic head injuries on the infant, was involuntary as a result of “[t]he various misrepresentations and false assurances used [by] [police] to elicit and shape [the] defendant’s admissions.” Id. The court explained that the police officers false representations to the defendant had manifestly raised a substantial risk of false incrimination. The Court was extremely troubled by police lying to the defendant “that his wife had blamed him for [their] [son’s] injuries and then threatened that, if he did not take responsibility, they would “scoop” Ms. Hicks out from the hospital and bring her in, since one of them must have injured the child.” Id.  The Court also observed that “there [was] not a single inculpatory fact in defendant’s confession that was not suggested to him. He did not know what to say to save his wife and child from the harm he was led to believe his silence would cause.” Id.

The New York Court of Appeals also recently affirmed the Second Department’s decision in People v.  Aveni, 100 A.D.3d 228 (2d Dep’t 2012) where the appellate court  had also found that the defendant’s confession was coerced  as a result of the police repeatedly deceiving the defendant about the status of his girlfriend’s health condition. In Aveni, the defendant had been prompted by police to make incriminating statements about the herion overdose of his girlfriend. During interrogation, the police had falsely told the defendant that his girlfriend was still alive, “and implicitly threaten[ed] him with a homicide charge if he remained silent.” The court explained that the police made the defendant believe that “the consequences of remaining silent would lead to the [girlfriend’s] death, since the physicians would be unable to treat her, which “could be a problem” for him.” Id. In upholding the Second Department’s decision, the NY Court of Appeals observed that “[t]he false prospect of being severely penalized for remaining silent, raised by defendant’s interrogators, was, in the court’s view, incompatible with a finding that defendant’s confession was voluntary beyond a reasonable doubt.” People v. Aveni, 2014 WL 641511 (N.Y. 2014).  It noted that “the Appellate Division used the correct legal standard in its reversal, [and] [i]ts determination that the potential to overwhelm defendant’s free will was realized was plainly one of fact.” Id.

Steven Drizin, clinical professor at Northwestern University School of Law in Chicago commented on the recent decisions in New York, noting that “[t]he court did not set any hard and fast rules, but it did issue some clear warnings that these tactics will be scrutinized closely in future.”  He explained that until now “[t]here’s been too much deference given to police officers, and they’re accustomed to having free rein with suspects behind interrogation doors.”

Related Readings