Tagged: innocence

Compensation for Exonerees

Providing compensation for wrongfully convicted individuals has been an ongoing dilemma within the United States and for governments abroad. A recent blog, Compensating Exonerees: US v. UK, by Professor Lissa Griffin of Pace Law School discusses the UK’s current struggle to articulate a standard of proof for exonerees who are seeking compensation.

Related Readings:

Actual Innocence: Landmark Decision Changes Post-Conviction Landscape in New York

A landmark decision by the Appellate Division, Second Department has given new hope to individuals wrongfully convicted of a crime in the state of New York, and unable to obtain post-conviction relief due to the procedural restraints statutorily imposed under New York Criminal Procedure Law. On January 15, 2014,  the Appellate Court Second Department handed down its epic decision, becoming the first New York Appellate Court to recognize a freestanding claim of actual innocence, reaffirming that the incarceration of an innocent person is inherently unconstitutional.

In People v. Hamilton, the Court ruled that a defendant’s claim of actual innocence may now be recognized as a “freestanding” ground to vacate a judgment of conviction pursuant to NY CPL 440.10. (1)(h), which provides that  a court may vacate a judgement if obtained in violation of a defendant’s constitutional rights. Notably, the Court directed  that a defendant’s claim of “actual innocence”  may be pursued  independently of the other grounds for relief prescribed by New York’s post-judgement statute, and can even be supported by evidence that may fail to survive the “newly discovered” criteria imposed under NY CPL 440.10(1)(g). The Court explained that the defendant may present a claim of actual innocence based upon  new evidence, whether or not it satisfies the Salemi factors or is barred by other legal hurdles, such as prior adverse court determinations.

The Court  directed  that relief based upon an actual innocence claim should only be granted when the court is presented with clear and convincing evidence that the defendant is innocent. The court reasoned that

Mere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty.

The Court also explained that an exploration into the merits of a case may be necessary when a prima facie showing of actual innocence has been made by a defendant. In this case, the court found that Hamilton had made such a showing to require a hearing.

In response to the court’s decision, Derrick Hamilton, who spent 20 years in prison for murder, stated that “it is a crime that it has taken this long for me to receive a shot at justice.” Since his conviction, Hamilton had spent the last twenty two years  battling the criminal justice system in an effort  to clear his name. All prior attempts to vacate his conviction were denied, although making a credible presentation of alibi evidence, witness recantation, and possible manipulation of witnesses by police. The Hamilton case has also been vetted for  review by the Brooklyn District Attorney’s Office, which is currently reviewing cases handled by retired detective Louis Scarcella. The Office has undertaken a review of about 50 homicide cases to determine whether the defendants were wrongfully convicted as a result of possible police misconduct.

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Battle of Experts: Controversy in Shaken Baby Case Set for NY Court

A New York court is set to hear testimony that will decide whether a shift in the medical community over the prognosis of shaken baby syndrome (“SBS”) constitutes newly discovered evidence under Article 440 of the New York Criminal Procedure Law. Supreme Court Justice James Piampiano has ordered a hearing in People v. Rene Bailey after being presented with strong evidence that the medical community’s standard for diagnosing shaken baby syndrome has significantly shifted over the years since Bailey’s conviction.

 Rene Bailey, once a daycare provider, was convicted of violently shaking a two year old child and causing severe brain injuries that resulted in the child’s death. At trial, the proof against Bailey rested primarily upon the testimony of a state medical examiner, who had claimed that the child’s internal brain injuries could only be caused by a violent shaking of the  body (SBS), and could not be attributed to any other cause known within the medical community at the time.

Contrary to the state’s medical examiner, medical experts for Bailey have now opined that a diagnosis of shaken baby syndrome should not have rested exclusively on the presentation of the child’s internal brain injuries, consisting of subdural hematoma, retinal hemorrhaging, and cerebral edema (“triad of injuries”). As of today, many members within the medical community no longer promote an exclusive diagnosis of SBS based solely upon the presentation of internal brain injuries, realizing that causes unassociated with shaking may be the root of the issue. Since Bailey’s conviction, medical studies have also shown that a child may suffer the “triad of injuries” as a result of impact to the brain caused by common short distance falls. Notably, as opined in an article by NY Times writer Emily Bazelon, some biomechanical engineers have raised doubts, [in the absence of external injuries], about whether it’s even possible to shake a baby to death.

Aside from new medical testimony, the Court will also entertain evidence that has been discovered by her attorney, Professor Adele Bernhard of New York Law School, which shows that her client may be factually innocent. The evidence presented by a new witness appears to support Bailey’s continuous declaration that she had not shaken the alleged victim, and further corroborates the observation of another child, who was present at the time of the occurrence and had initially stated to the police that the alleged victim had jumped off a chair and hit her head on the ground.  Justice Piampiano has also reserved judgment upon whether further discovery will be ordered in the matter, including whether Bailey’s request for the State to produce notes from an interview of a third child eyewitness will be granted. According to court papers, a third child may have also been present at the time of the alleged occurrence, and the child may have made exculpatory declarations to police consistent with Bailey’s version of the event  that were never disclosed to trial counsel.

Related Readings:


Common Factors of Wrongful Convictions … ?

Washington Institute for Public and International Affairs Research at American University has conducted a three-year study focusing on the identification of common factors in wrongful convictions. The results of the study have been published in a December 2012 summary titled Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice.

The study identifies forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification among the common factors in wrongful convictions. The study suggests there is a notable difference between “causes” of erroneous convictions compared to “correlates” of wrongful convictions.

Missing so far in the literature is a study that asks how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. What we want to know – and thus what dictated our research strategy – is what factors are uniquely present in cases that lead the system to rightfully acquit or dismiss charges against the innocent defendant (so-called “near misses”), which are not present in cases that lead the system to erroneously convict the innocent.

The study identifies factors aiding to erroneous conviction of innocent defendants including:

  • Age and criminal history of the defendant
  • Punitiveness of the state
  • Brady violations
  • Forensic error
  • Weak defense and prosecution case
  • Family defense witness
  • Inadvertent misidentification
  • Laying by a non-eyewitness
  • False confessions
  • Criminal justice official error
  • Race effects
  • Tunnel vision

The study concludes that

increased attention to the failing dynamics of the criminal justice system, rather than simply isolated errors or causes, may lead to better prevention of erroneous convictions. …[The] results suggest that there should be greater emphasis at all levels and on all sides of the criminal justice system, including police, prosecutors, defense attorneys and judges, to analyze and learn from past mistakes before they result in serious miscarriages of justice.

When I read “common factors” in wrongful convictions, I had to pause. Is the criminal justice system so flawed that there is a sufficient amount of wrongful convictions to conduct a study? Apparently so; an alarming number of wrongful convictions have emerged in the past decade(s) and the number keeps growing. The Innocence Project has been one of the leaders in the efforts to exonerate wrongfully convicted, currently showing 303 successfully exonerated individuals. But is exoneration after the fact enough? The study offers a different approach to erroneous convictions – an approach consisting of variety of steps to be taken early on in an investigation that would prevent the commission of erroneous convictions rather than dealing with the effects of wrongful conviction when damage to the wrongly accused and everyone around her has already been done.

Related Readings

See additional articles relating to wrongful convictions.

Texas Court Considers Charging Prosecutor for Hiding Brady Evidence

Professor Ben Gershman blogs on the Huffington Post.   We are re-posting his piece on the unusual Texas inquiry into Prosecutor Ken Anderson’s handling of evidence while prosecuting Michael Morton:

“Don’t cry for former Texas prosecutor, now judge Ken Anderson, who faced a court of inquiry last week into whether he deliberately hid evidence that sent an innocent man to prison for 25 years for murder. As the prosecutor in the 1987 trial of Michael Morton, Anderson testified that “the system screwed up” and that he did nothing wrong. He appeared more anguished over protecting his own image and “what me and my family have been through for 18 months of false accusations” than the terrible reality that he abused his power as a prosecutor to destroy the life of an innocent man.

Arrogant, defiant, and dishonest, Anderson’s alleged misconduct in Morton’s trial, and his present attempt to justify his deceit of court, jury, and defense counsel, typifies the worst in prosecutors. Below are some of the highpoints in this unusual state judicial proceeding, presided over by Judge Louis Sturns, that may result in a criminal prosecution against Anderson for contempt of court and tampering with evidence.

Michael Morton was accused of murdering his wife Christine by bludgeoning her to death in their Williamson County home in 1986 before going to work. The killing attracted considerable attention – “It was a big deal” according to former prosecutor Kimberly Gardner who worked under Anderson. The evidence of Morton’s guilt was circumstantial and not very strong. Anderson’s theory was that Morton killed his wife because she wouldn’t have sex with him, and the medical examiner provided an opinion that pinpointed with questionable accuracy the time of death as occurring before Morton left for work. However, there was considerable evidence that strongly supported the defense theory that a stranger entered the home and killed Christine after Michael left. Almost all of this exculpatory evidence was contained in notes, reports, and transcripts gathered by the lead investigator Sgt. Don Wood of the Williamson County Sheriff’s Office.

The information collected by Wood, which he shared with Anderson, included the following: reports from neighbors seeing a man in a green van behind the Morton home around the time of Christine’s murder; the transcript of an interview by Sgt. Wood of Rita Kirkpatrick, Morton’s mother-in-law, stating that her three-year-old grandson Eric told her he saw a “a monster” – not his father – beat his mother to death; evidence that Christine’s purse was stolen and her credit card and checkbook fraudulently used several days later; unidentified fingerprints in the Morton home; and an unidentified footprint in the backyard. Armed with this powerful evidence – which they knew nothing about — it is difficult to believe that Morton’s defense lawyers would not have been able to provide the jury with substantial reasonable doubt of Morton’s guilt. But the jury never heard this evidence because Anderson hid it from Morton’s lawyers and from the trial judge who had ordered Anderson to disclose it.

Among the most egregious actions of Anderson was his decision not to call Sgt. Wood as a witness for the prosecution. As noted, Wood was the chief investigating officer and would have given the jury the background of the case, and all of the evidence he accumulated, including the evidence that was inconsistent with Morton’s guilt. But as Anderson well knew, under the rules of trial procedure, calling Wood would have required Wood to divulge all of his case notes, reports, and the transcript of the child’s statement describing the killer as a “monster.” So, according to the testimony last week of former prosecutor Doug Arnold, Anderson said he wasn’t calling Wood because that way “the other side can’t have access to those reports.”

Equally egregious was Anderson’s response to the 1987 order by the trial judge William Lott, since deceased, to disclose all of the evidence the police had collected. Anderson turned over a slender envelope containing only Morton’s statements to the police; he did not disclose the mountain of evidence collected by Wood that would have strongly supported Morton’s claim of innocence. It is this alleged violation by Anderson of the trial court’s disclosure order that is one of the central issues in the court of inquiry, and if Judge Sturns determines that Anderson violated the order, then Anderson will face criminal charges for contempt.

Anderson’s perverse trial strategy was either to conceal the transcript of the child’s statements to his grandmother, or to obscure the child’s description of the killer, which Anderson knew would likely have doomed his prosecution. According to the testimony last week of former prosecutor Gardner, Anderson acknowledged that “The kid thinks a monster killed his mother,” and that his father was not present when his mother was killed, as well as describing other details that corresponded to the evidence at the crime scene, including a blue suitcase that the killer placed atop his mother’s body. Anderson stated that if the child’s story ever gets exposed, Anderson would claim that what the child really saw was his father dressed in a scuba diving suit as a disguise and that’s why there was no blood on his clothing.

Gardner recalled that Anderson’s concoction of a story of “this guy killing his wife in front of his 3-year old son in a skin diving suit was pretty strange.” But why didn’t Anderson disclose this information to the defense? Because, as Anderson testified, “He was a traumatized three-year-old child. You can’t attach any significance to anything he said.” In other words, according to Anderson’s view of acceptable prosecutorial practice, if a prosecutor learns that evidence exists that contradicts the prosecution’s theory of guilt, that evidence, by definition, is mistaken, erroneous, or false. With such a mindset, tantamount to the fox guarding the henhouse, a prosecutor can always bury troublesome facts.

Interestingly, Anderson in his pre-hearing deposition, repeatedly professed to not having any memory of the factual details of the Morton case, including the child’s statement, or Anderson’s bizarre scuba diving story to explain it. But Anderson’s failure of memory of critical facts in the Morton case appears to be disingenuous, especially given the many references in his book Crime in Texas, about which he was questioned, in which he recounts how as a prosecutor he had to master hundreds of details in cases, especially high-profile cases like Morton’s.

Judge Sturns reserved his decision until the attorneys file additional papers. His decision will likely be made sometime in the next several months. Meanwhile, Michael Morton can enjoy his freedom, which Anderson’s misconduct denied him. Morton asked Judge Sturns to “be gentle with Ken Anderson,” a kindness that, as the hearing demonstrated, Anderson hardly deserves.”

For more information about Michael Morton’s exoneration, go to www.innocenceproject.org/Content/Michael_Morton.php