Forensic Experts Must Testify To Results

The U.S. Supreme Court ruled last week in the case of Melendez-Diaz v. Massachusetts that forensic reports qualify as “testimony”, and therefore that forensic experts must be made available for cross-examination. Melendez-Diaz argued that the expert who wrote the report in his case, identifying a substance found on the defendant as cocaine, should be made available for cross-examination so that testing procedures and the custodial history of the evidence could be presented to the jury. This decision comes just days after the Supreme Court decided Osborne v. Alaska, and the disparate rulings mean that defendants will have more tools to fight charges in court, but no new aid in appealing their convictions.
A.P.: Court rules for defendants on crime lab reports

The New York Times: Justices Rule Lab Analysts Must Testify on Results

MA Appeals Court Rules On Remuneration Case

A Massachusetts Appeals Court ruled last week that Humberto Guzman could be eligible for as much as $500,000 after he spent four years in prison for drug charges. At issue before the court was whether the Massachusetts Erroneous Convictions Law of 2004 could benefit those who had not been conclusively exonerated. Guzman's conviction was vacated in 1994 on the basis of inadequate counsel, and after two Boston police detectives who originally testified against him were indicted by a federal grand jury for stealing hundreds of thousands of dollars during drug raids. The officers were convicted and served three years in prison. In 2006, Guzman applied for remuneration but was denied because the court said he had not actually been found innocent and other evidence implicated him in the crime. The Appeals Court decided that the law does not limit eligibility for remuneration “to those individuals exonerated as a result of compelling or overwhelming exculpatory evidence."

Read more from The Boston Globe: $500,000 could be awarded in overturned drug case

Troy Davis Case May Be Decided Today

Updates will be forthcoming if Troy Davis' case is decided by the U.S. Supreme Court today, as is expected. Davis was convicted in the murder of a Georgia police officer in 1991 and is being held on death row. 7 of 9 State witnesses have recanted their testimony and another man has been named as the perpetrator. Davis is seeking an evidentiary hearing, which could free him after more than 18 years in prison.

Davis' petition is on SCOTUSBlog here: Petition for certiorari

New Findings May Exonerate Many in Shaken Baby Cases

A recent article by Maurice Possley brings to light new evidence about shaken baby-related murder convictions. Over the last thirty years, thousands of parents and caretakers have been charged after the death of a child in his or her care was attributed to Shaken Baby Syndrome (SBS). A diagnosis of SBS is based on a triad of evidence: retinal hemorhage, bleeding in the brain, and brain swelling. Individuals are generally only charged after the diagnosis of SBS is made. However, new scientific findings show that SBS may not always be a result of violent shaking, but that a short fall may also produce the same symptoms.

Audrey Edmunds of Wisconsin, a day care provider, was charged in 1995 with murder, after a 7-month old in her care died, and prosecuters alleged that she had shaken the baby to death. Last year, with the help of the Wisconsin Innocence Project, Edmunds was granted a new trial and released. One of the experts who had testified at her trial came forward to say that he was no longer sure Edmunds had harmed the child, and that the damage could have taken place hours earlier than originally believed. An article in the Washington University Law Review by Deborah Tuerkheimer to be published in September seeks to examine recent research into SBS which could free thousands of people who were imprisoned with the help of faulty science.

The case of Louise Woodward, the 19 year old au pair who was charged with second degree manslaughter after she was accused of shaking to death the child in her care, illustrates the point. Experts for the prosecution alleged that the child was shaken violently and his head was hit against a hard surface. Experts for the defense testified that the boy's injuries could have been sustained days earlier. The most recent scientific findings show that there is no certainty in the medical community that SBS is caused by violent trauma. Indeed, symptoms from the triad of SBS symptoms may be found in children before they are taken home from the hospital for the first time.

In light of the most recent medical research, many of those convicted in SBS cases could receive new trials, and it seems that the burden of proof may be moving in their favor.

Maurice Possley's article on thecrimereport.org: Mistaken diagnoses of Shaken Baby Syndrome may have sent thousands of innocent people to prison, according to a new study

Change.org article: Shaken Babies and Wrongful Convictions

Washington University Law Review abstract: The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts

Record Sum Awarded to Chicago Exoneree

Juan Johnson, a former member of the Chicago gang the Spanish Cobras, was awarded 21 million dollars yesterday by a federal jury, after spending 11 years in prison for a murder he did not commit. The court found that Johnson was framed by the arresting officer, Reynaldo Guevara, and that witnesses were coerced into testifying against Johnson at trial. The city of Chicago will pay remuneration. Despite the hardship that Johnson endured while in prison, he says that he only seeks an apology from the arresting officer. None has been forthcoming, so Guevara must pay 15 thousand dollars in punitive damages. No charges have been brought against the arresting officer at this time.

AP: Jury in Ill. awards $21M for wrongful conviction

Chicago Tribune: Record verdict: Former gang member awarded $21 million for wrongful conviction

Oregon Inmate Using NAS Report To Bring Appeal

Phillip Scott Cannon was convicted in 1998 of a triple homicide. He was sentenced to three life sentences. Cannon has protested his innocence for more than ten years. The key piece of evidence in Cannon's trial was the use of "bullet-lead analysis", a forensic science so unreliable that the FBI has stopped using it. Since the National Academy of Sciences released its report on forensic sciences in February 2009, Cannon has decided to appeal his conviction. A spokesman for the Oregon Department of Justice commented, "The post-conviction relief process is exactly the appropriate place to sort out these things. The FBI is no longer doing these tests because they don't consider them valid. But, if there is other evidence lined up, then we want to get it in front of a judge to sort it out. We're interested in getting to the truth. We have a higher obligation to the truth."

Read more here: Oregon case puts reliability of science itself on trial

Supreme Court Rules There Is No Right to Post-Conviction DNA Tests

Today the Supreme Court of the United States handed down their ruling in the case of D.A.'s Office for the Third Judicial District v. Osborne, finding that inmates are not constitutionally guaranteed the right to test evidence for DNA. In a 5-4 decision, the justices ruled against Mr. Osborne, a resident of Alaska. 46 states have laws allowing some inmates the right to post-conviction testing. Massachusetts, Alabama, Oklahoma, and Alaska do not explicitly allow the testing. The majority opinion, written by Chief Justice John G. Roberts, Jr., seems to have considered this as part of their ruling, reasoning that the matter should be left to state legislatures to consider.

Mr. Osborne was represented by Peter Neufeld, a co-founder of The Innocence Project.

The full text of the court opinion is available here
Article from the New York Times here
Article from the Boston Globe here

Pennsylvania Court Throws Out Claim of Malicious Prosecution in Wrongful Conviction Suit

Thomas Doswell was released from prison in 2005 after serving 19 years in prison for a rape he did not commit. DNA evidence exonerated Doswell, but in a civil suit against the city of Pittsburgh, Doswell alleges that police misconduct was also a factor in his wrongful conviction. Doswell alleged that police had no probable cause to include him in a photo array shown to the victim just hours after the rape occurred. Doswell's photo was the only one stamped with "R", for rapist. U.S. District Judge Donetta Ambrose threw out that claim on Tuesday, saying that although exonerated by DNA evidence, the police may have had cause to suspect Doswell. The judge also dismissed the claim of deprivation of familial and associational rights filed by Doswell's son. Doswell is seeking millions in remuneration for his remaining claims of violation of his right to due process and against cruel and unusual punishment.

Full story at the Pittsburgh Tribune Review:

http://www.pittsburghlive.com/x/pittsburghtrib/news/breaking/s_629760.html

Alabama Court Admits Expert Testimony On Eyewitness Identification

The United States District Court for the Middle District of Alabama released an opinion on the 26th of May regarding their recent decision to admit expert testimony on the flaws of eyewitness identification. On June 22, 2007, Andreas Smith was arrested by the Montgomery Police and charged with the armed robbery of a local bank. The primary case against Smith was based on the eyewitness reports of two individuals at the scene of the crime who claimed they could identify him as the perpetrator. To counter these claims, the defense moved for the admission of psychologist Solomon Fulero as an expert witness on the reliability of eyewitness testimony. In a change from general practice, the District Court admitted Fulero’s testimony with the stipulation that it not evaluate the particular witnesses involved in the case and only provide a survey of the pertinent scientific research in this field.
The court’s subsequent opinion, issued by Judge Myron Thompson, lays the precedential groundwork for the future admissibility of expert testimony on a type of evidence that has been historically held by jurors as an extremely persuasive and reliable source of information. Beginning with the statistical observation that, "by some estimates, roughly 84% of convicts who have been exonerated by DNA testing were convicted on the basis of mistaken eyewitness testimony," Thompson outlines the problems with eyewitness identification and the extent to which its reliability is overestimated by lay jurors. From this statistical examination, he presents some relevant superior court law that establishes the groundwork for admitting expert testimony. While no superior court decision has directly admitted this particular testimony, in Daubert v. Merrell Dow Pharms., Inc. the Supreme Court held that admissibility of expert testimony must be based "solely on principles and methodology, not on the conclusions that they generate" and that testimony could not be categorically rejected because of its subject matter. Thompson argues that the widespread academic acceptance of psychological studies on identification and, in particular, Fulero’s position at the cutting edge of this field satisfies the requirements for the first two prongs of the test. The relevant test established by this decision was whether "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." He resolves issues with the third prong and a related government challenge on the grounds that expert testimony intrudes upon and confuses the role of the juror in establishing witness credibility by restricting admittance of testimony only in particular cases and disallowing a specific evaluation of the witnesses at hand. These arguments provide a framework for future testimony on eyewitness identification as a scientific matter and opens the gate for a fundamental readjustment in how juries evaluate human identification.
While this decision marks a relatively new development in the legal recognition of the scientific work being done on witness identification, the issue has been widely addressed and tested within the academic community and law enforcement community. In a 1999 guide, the Department of Justice commented, "Research psychologists have produced a substantial body of findings regarding eyewitness evidence. These findings offer the legal system a valuable body of empirical knowledge in the area of eyewitness evidence." In the particular context of Andreas Smith’s trial, Dr. Fulero’s testimony focused on the unreliability of cross-racial identification and extreme confidence and the impact of trauma and post event discussions on the process of identification. Statistically, Caucasians have a tendency to misidentify minorities, particularly African Americans. This tendency towards misidentification is compounded by an accompanied traumatic experience and subsequent post event discussions which may cause changes in descriptions or false memories as witnesses attempt to reconcile their experiences. Additionally, once an identification has been made, individuals have a tendency to justify and reinforce that decision by displaying high levels of confidence regardless of the actual reliability of their information. Dr. Fulero presented this information at an abstract level for jurors "leaving the trier of fact to apply them to the facts." This is a potentially effective way to inform jurors of the flaws in eyewitness identification without usurping their authority to make contextual judgments on witness reliability. Hopefully this will lay the groundwork for future expert testimony which will reduce the incidence of false identification leading to wrongful convictions.

Crime Labs at Risk

Budget cuts stemming from state spending crunches caused by the economic downturn are placing crime labs at risk in Wisconsin and North Carolina and negatively impacting resources available to the nation’s law enforcement community. In Wisconsin, Attorney General J.B. Van Hollen is spearheading lobbying efforts to restore $5.4 million in budget cuts to the justice department that are scheduled to take effect between 2009 and 2011. The Chicago Tribune reports that, "Van Hollen said those cuts … could result in evidence backlogs at the state crime labs, agency attorneys turning down cases and delays in responding to local police's requests for help." Similarly, cuts in North Carolina have placed a Greensboro crime lab on the chopping block, threatening to cut off a valuable scientific resource to law enforcement officials in up to 12 counties. These budget reductions place an added burden on the police community that increases the potential for backlogs and errors that could delay the justice system and increase the probability of improper convictions.

To read more:
"Crime lab among cuts pondered in budget" http://www.news-record.com/content/2009/06/01/article/crime_lab_among_cuts_pondered_in_budget
"Friday Roundup: Compensation and Crime Lab Woes" http://www.innocenceproject.org/news/Blog.php

Hurdles for Inmate Compensation

Florida man William Dillon spent 27 years in prison for a murder that he did not commit. Since being exonerated by DNA evidence in 2008, Dillon has found a job as a mechanic and is gradually readjusting to normal life but has yet to see any compensation from the state for his wrongful incarceration. Due to Florida’s "Clean Hands" statute that was passed in 2008, Dillon’s 1979 conviction for a non-violent drug crime makes him ineligible for receiving compensation without attempting to go through a separate funding process. Florida’s innocence project has taken on the task of aiding Dillon in receiving state funding and is pursuing a legislative request for $1.3 million. Legislative hurdles for monetary restitution for wrongly convicted individuals, like Florida’s "Clean Hands" law, are prevalent in different forms across the country. In many states, compensation is determined through a separate court or gubernatorial review. In a discussion about compensation for wrongly convicted individuals on NPR, professor Karen Daniel, a staff attorney at Northwestern University's Center on Wrongful Convictions commented, "In virtually every state, it's now his burden to prove innocence. It's not enough that the charges have been dropped. It's not even enough that he's found not guilty by a jury. He has to affirmatively prove innocence, and that's difficult to do." These hurdles to compensation often add a financial component to the already difficult adjustment former inmates must make to society outside of prison.

To read more:
"Still Seeking Justice," Tallahassee News, http://www.tallahassee.com/article/20090609/OPINION01/906090301/1006/OPINION
"Dillon won’t be paid for time spent in prison," Florida Today, http://www.floridatoday.com/article/20090602/NEWS01/906020317/1006

Texas Inmate Exonerated by DNA Evidence

On May 27, 2009, after 22 years in prison for a rape that he did not commit, 47 year old Jerry Lee Evans was exonerated by DNA evidence making him the 20th inmate in Dallas County to have his conviction successfully overturned. According to the Dallas News, Evans made a brief address where he commented that he bore “no ill will” towards the court and was greeted by family members and several previously exonerated inmates who meet regularly as a support group. His release comes amid the backdrop of a failed attempt at state legislation reforming Texas’ system for handling DNA evidence and addressing the state’s unusually large number of wrongful convictions.

To read more:
“Says DNA Exoneree Jerry Lee Evans of His Freedom, ‘I Knew It Would Come One Day’”, The Dallas Observer, http://blogs.dallasobserver.com/unfairpark/2009/05/says_jerry_lee_evans_of_his_fr.php
“After 23 Years, DNA Clears Man of Rape,” CBS, http://cbs11tv.com/local/DNA.exoneration.Jerry.2.1021620.html
“Another Wrongly Convicted Inmate Released in Texas,” Houston Chronicle, http://www.chron.com/disp/story.mpl/ap/tx/6444094.html

Investigative Reporting Cuts Limiting Pursuit of Justice

Cutbacks in investigative journalism budgets and the general shrinking of the funding of newspapers nationwide has had the unforeseen effect of restricting lawyers’ abilities to pursue the cases of potentially wrongly convicted and incarcerated individuals. This downsizing in reporting has reduced the number of sources outside the legal world that are performing research and independently investigating miscarriages of justice. A lively outside source of investigation is important for procedural attempts to gain access to evidence and the dissemination of information to the public. Tim Arango of the New York Times recently reported that “media involvement provides lawyers’ with the ability to have the media act as the plaintiff in posthumous cases to obtain information through state sunshine laws in addition to performing an informative role when procedural mechanisms begin to fail, [and] the press is the last resort for the public to find out the truth.” Media investigations have also fallen out of practice for non-economic reasons as editors have become increasingly reluctant to mix reporting with what they perceive as law enforcement functions. Reporter Eamonn O’Neil has recently addressed this issue in a series on miscarriages of justice in The Guardian commenting that “the media has a duty to wrongfully accused." The future of investigative journalism may will most likely be closely tied to the ability for lawyers to use the media as a force multiplier in the hunt to exonerate wrongly convicted individuals.

Texas ‘Innocence Committee’ Legislation Fails

In an attempt to reduce the number of wrongful convictions, the Texas state legislature recently attempted to craft a series of bills intended to “expand prisoner access to DNA testing, clarify how to handle pardoning innocent Texans after their death and change how departments interrogate and collect eyewitness evidence” (Elliot Blackburn, Lubbock Online). Calls for action were spurred by the high rate of wrongful conviction in the State and the posthumous exoneration of Timothy Cole in 2008 for an incorrect rape conviction. Passage was eventually derailed by the close of the legislative session on Monday, June 1, 2009, after debates over photo identification requirements for voting pushed the issue off the agenda. State Governor Rick Perry did recently sign a bill providing compensation to wrongly convicted individuals and members of the Senate hope to renew the attempts at reform in the next session.

To read more:
“Reform Bills Fail to Pass in Texas,” Innocence Project Blog, http://www.innocenceproject.org/news/Blog.php

DNA Testing Under Fire

Despite state statutes protecting the ability of defendants to utilize DNA testing as evidence in their trials, recent studies have revealed a nationwide tendency for prosecutors to attempt to deny the admissibility and reliability of this forensic data. According to Shaila Dewan of the New York Times, “a recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases.” This prosecutorial backlash against DNA evidence is largely attributed to the desire to “to avoid having their work second-guessed by objective science,” (The Right to DNA Testing, New York Times) and the perception that attempts to obtain DNA tests are often a delay tactic to merely postpone inevitable convictions on other grounds. Attempts to block DNA testing and admissibility presents a problem for poorly represented defendants who have a significant path towards proving their innocence blocked and hampers the effectiveness of the criminal justice system by preventing the possibility of the discovery of guilty third parties.

To read more:
Professor Brandon Garrett’s Analysis, http://www.law.virginia.edu/html/librarysite/garrett_exonereedata.htm
“Study: Prosecutors Resist DNA Testing”, United Press International, http://www.upi.com/Top_News/2009/05/18/Study-Prosecutors-resist-DNA-testing/UPI-98511242646757/