With an interesting perspective on the problem of wrongful convictions, the investigators, Kim Anklin and Bob Rahn, tell the story of how they helped uncover and produce the evidence that established a wrongful conviction in Brooklyn. Take a moment to read the full article about the Jonathan Fleming case, written by one of the investigators.
Kim Anklin, The Investigation of a Wrongful Conviction: The Jonathan Fleming Case.
POST WRITTEN BY: Jake B. Sher (’16), Pace Law School
The District Attorneys of the Information Age have a new tool at their disposal: the internet search histories of their defendants. Used correctly, this tool can grant unprecedented insight into an individual’s mental state regarding an alleged crime. The most recent debate on the issue involves Justin Ross Harris, whose high-profile case about his son’s death by exposure initially suggested a negligent mens rea at best. Investigators got a hold of the internet search history and cell phone data, finding evidence that Harris was communicating with several women while his son was still alive in the vehicle, and allegedly had looked at websites that advocated against having children. Harris’ acts have subjected him to murder charges.
The use of internet search history to secure a conviction is undoubtedly a powerful tool, and its use is nothing new. For instance, Melanie McGuire’s searches for “how to purchase guns?” and “how to commit murder;” Steven Zirko’s extensive search history, or Jared Lee Loughner’s “assassin” research.
Taken in context, internet searches can give important insights into the mind of the individual conducting the search. Taken out of context, however, a person’s internet search history may result in a wrongful conviction. The Eastern District of Wisconsin granted a prisoner’s habeas corpus petition, releasing him from a life sentence for his wife’s murder where his alleged internet search history for “ethelyne glycol poisoning” occurred on the morning of his wife’s death. The District Court cast doubt on the reliability of the search history for purposes of determining intent, particularly in the context of letters and reports to police suggesting Mrs. Jensen’s concerns about his internet search history. The District Court determined that the admission of such evidence to the exclusion of evidence suggesting Mrs. Jensen was suicidal and had access to Mr. Jensen’s computer at the time that the internet search occurred constituted a violation of the defendant’s Sixth Amendment rights:
… viewed in isolation, the State’s computer evidence against Jensen was quite convincing. But that was not the only evidence the jury heard about the computer. The jury also heard Jensen’s statement to one of the investigators in which he denied any knowledge of the searches for poison and claimed that Julie also used the computer and accessed the internet, information that was confirmed by one of Julie’s friends … Jensen told the investigator that the computer was not password protected and that Julie entered information on a financial program called Quicken and was interested in medical information. … The defense pointed out evidence in the internet history of a search for “suicide” on November 10, 2008, which was also the first day on which the word ethylene glycol appears in the internet history.
Jensen v. Schwochert, No. 11-C-00803, 2013 WL 6708767, 2013 U.S. Dist. LEXIS 177420 (E.D. Wis. Dec. 18, 2013). (Court’s Official Copy)
Searches by individuals online create inadvertent communication between the searching individual and the corporation owning and operating the search engine. It is important to note that the evidence unearthed from internet data may provide just enough information to obfuscate the truth. As Orin S. Kerr stated with regards to digital evidence,
communications normally will not indicate who or what sent or received them, or the context in which they were sent or received.
While internet search histories are helpful tools for obtaining circumstantial evidence regarding the individual’s state of mind conducting the search, they are imperfect vehicles in that process; courts must balance their admission against the Constitutional Rights of the individual conducting the search. In our continued pursuit of the equitable administration of justice in the Internet Age, the words of Justice Cardozo remain resonant:
When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.
Shepard v. United States, 290 U.S. 96, 104 (1933).
Related Readings:
Cases:
Federal District Judge Jed S. Rakoff has a long-standing reputation for being an honest, open-minded, and fair jurist when presiding over criminal cases. He has continually shown the courage to address some of the most profound issues within our criminal justice system, and has always taken the “high road” in doing so. Many criminal defense practitioners have lauded Judge Rakoff’s judicial wisdom as well as his “no-nonsense” attitude when dealing with prosecutors that play fast-and-loose with their ethical obligation to disclose favorable evidence.
According to Professor Peter Widulski of Pace Law School, who once served as a law clerk for Judge Rakoff:
Judge Rakoff is one of the most brilliant and respected members of the federal bench. He is a man of the highest integrity, and his dedication to the law is a model for all jurists and lawyers. This dedication is manifested not only in his work on the bench but in the extensive teaching he has done for many years at Columbia Law School.
Recently, Judge Rakoff has proposed innovative changes to help reform the plea-bargaining process. He suggested a new process whereby magistrate judges would hear evidence and issue plea bargaining recommendations pre-trial. Such proceedings would allow both the prosecution and defense an opportunity to present relevant facts, and to weigh-in on the evidence likely to be presented by the government at a trial.
Judge Rakoff explained that such a process would bring “plea bargaining from behind closed doors and relieve pressure on the defendants deciding whether to risk a longer sentence by heading to trial.” He also noted that judges should become more involved in the process to protect defendants from feeling bullied into pleading guilty and help prevent overzealous prosecutors from using mandatory minimum sentences as a coercive bargaining chip.
Judge Rakoff estimates that from 1% to 8% of the prison population may be the result of false guilty pleas. He notes that the “current process is totally different from what the founding fathers had in mind.” He explained that more needs to be done to protect innocent people from coerced pleas –as “even 0.5% [of false pleas] would total more than 10,000 [innocent] people” in prison.
In 2009, Judge Rakoff was also outspoken about sentencing inequities created by mandatory minimums for firearm offenses. In Unites States v. Ballard, Judge Rakoff refused to submit to the government’s request to impose a Guideline range sentence on non-gun counts, and to stack consecutive mandatory sentences for each firearm conviction on the defendant’s armed robbery counts. He noted that the case did not warrant the 64-year sentence advocated by the prosecution and refused to become a party to such an “unconscionable result.” He found that the imposition of a one-month sentence for the non-firearm counts was proper given the two consecutive 25-year sentences required under 18 U.S.C. § 924(c).
Judge Rakoff explained that the case was illustrative of the distorting effects of mandatory minimum sentences, given that a co-defendant was given a plea bargain excluding mandatory minimums, and obtained a sentence of 168 months in prison. He observed that the extreme sentencing disparity between the co-defendants was simply a result of one exercising his constitutional right to go to trial –while the other defendant did not. He noted that
[w]hen the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.
In 2006, Judge Rakoff also took a courageous stance against the disproportional sentencing recommendations that may occasionally arise in a case under the Sentencing Guidelines. In United States v. Adelson, Judge Rakoff imposed a non-guideline sentence of 42 months imprisonment to a defendant convicted of conspiracy, securities fraud, and the three of the false filing counts -although the Government argued that the Sentencing Guidelines, if properly calculated, called for a sentence of life imprisonment.
Judge Rakoff noted that what the case “exposed, more broadly, was the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.” He concluded that “[t]his is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence that comports with federal law.”
It is to be hoped that all members of the Bar will rally behind Judge Rakoff to help facilitate reform to correct the injustices caused by the combination of our plea-bargaining process and harsh mandatory minimum sentencing.
A true leader of his time, “Judge Rakoff enjoys well-deserved admiration for fairness, and he has the courage and insight to address important issues of law and the administration of justice, without fear or favor” said Professor Widulski.
Related Readings:
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).
POST WRITTEN BY: Annmarie Stepancic (’15), Pace Law School
I was part of a fascinating experiment in my Criminal Procedure Class at Pace Law School, which powerfully brought home the dangers of mistaken identification and wrongful conviction. On Thursday, April 24, 2014, class began in its ordinary fashion – a student was called on to discuss the facts and holding in United States v. Wade, 388 U.S. 218 (1967). About ten minutes into class, we all learned that this was no ordinary criminal procedure class when a man suddenly stormed into the classroom. According to students’ accounts of the event, the man approached the Professor, Professor Bennett Gershman, and shouted, “Hey Gershman, remember me? You fucking failed me last year.” The intruder then pulled out a gun with his right hand (a “black Glock semi-automatic pistol,” according to some students), and stated, possibly two times, “Give me your wallet.” One student stood up, but the man ordered her to sit down. The man ordered everyone in the class to stay seated. The Professor gave up his wallet and the man ran out. The whole event, according to students, lasted anywhere from thirty seconds to a minute and a half.
A Pace Security guard came in moments later. Professor Gershman assured him that everything was OK. Professor Gershman asked the students not to talk to each other and to write down a brief description of what they just observed, including a description of the assailant.
After the students did so, Professor Gershman dimmed the lights, pulled down the screen, and projected a photographic array of males of similar age and facial characteristics to the intruder. The students were asked to try to identify the intruder from the photos. Prof. Gershman specifically admonished the students that the perpetrator might or might not be in any of the photos.
Here are the results:
The intruder’s photo was photo #5.
After the students made their selections, the “intruder,” was invited in along with the Greenburgh Chief of Police, Chris McEnery, a Pace Law School alum and a wide-ranging mini-symposium on the constitutional, ethical, and policy rules governing eyewitness identifications began. Specifically, the discussion focused on, as Justice Brennan famously observed in the landmark case of United State v. Wade, how
the annals of criminal law are rife with instances of mistaken identification.
A review of the student responses apparently reveals that most of the students got the prominent facts right, but varied on lots of subsidiary details, and that they omitted important facts. Even though the students were shown the photo array approximately five minutes after the event, only 55% correctly identified the perpetrator in the photo array lineup. It is critical to note, of course, that real eyewitnesses would not be shown a lineup – corporeal or photographic – so quickly after an event, when the event is so fresh in the minds of the observer, as was the case in our class. As social science and scientific research demonstrates, memory retention – particularly the memory of an eyewitness – dissipates over time.