A federal appeals court ruled yesterday that a lower court was too restrictive in refusing to consider new DNA evidence and witness statements in the case of Jeffrey MacDonald. MacDonald was charged in 1979 with the murders of his pregnant wife and two young daughters but has always maintained his innocence. In trying to prove his innocence, MacDonald has urged the court to consider both DNA evidence and witness statements. The DNA evidence shows that a hair found under one of his daughter’s fingernails does not match him or anyone else in the family. Furthermore, under yesterday’s ruling, statements made by a retired deputy U.S. marshal, who claims he overheard the lead prosecutor threatening a witness, causing her to change her story, will also be admissible.
Read the article here.
Debra Cassens Weiss, “4th Circuit Tells Lower Court to Consider DNA in Appeal of “Fatal Vision” Doc. April 20, 2011. ABA Journal.
NEIP provides pro bono legal assistance to inmates who have claims of actual innocence. NEIP's mission is to represent persons wrongly convicted in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island or Vermont and to advocate for the reform of our criminal justice system.
Wednesday, April 20, 2011
NEIP Team Attends Annual Innocence Network Conference
Three NEIP team members and NEIP's Executive Director recently returned from the 2011 Innocence Network Conference in Cincinnati, Ohio. Also in attendance were two New England exonerees, Lawyer Johnson and Dennis Maher. The conference was hosted by the Ohio Innocence Project. This year's conference covered a variety of post-conviction topics and examined wrongful convictions on an international scale. The annual conference is a great resource for both Innocence Projects and exonerees. Some of the topics at this year's conference included judicial perspectives on DNA testing requests and actual innocence claims, false confessions, post-conviction DNA testing, recantation evidence, the Freedom of Information Act, and federal habeas corpus. International exonerees from England, Japan, Canada, Mexico, and Nicaragua spoke about their cases and each shared his exoneration experience in the country where he was wrongfully convicted. The conference concluded with a moving concert performed by the exonerees.
To learn more about past Innocence Network Coferences, click here.
To learn more about past Innocence Network Coferences, click here.
Tuesday, April 12, 2011
Reforming Forensic Science
In the past few years national attention has increasingly focused on the fallibility of forensic science. Forensic disciplines once touted as scientifically accurate such as bite mark analysis have not been subject to peer review or scientific testing. In addition, bias among law enforcement and crime labs in favor of convictions too often leads to misuse of forensics.
Bias can be caused by medical examiners or crime labs reporting directly to the attorney general or other state law enforcement official and influences the entire process of collecting and analyzing scientific evidence. A 2002 study by Michael Risinger, a law professor at Seton Hall, identified five different parts of scientific analysis susceptible to influence by unintentional bias. They are: how the analyst observes the initial data, how he records the data, how he makes calculations, and how he remembers and reinterprets his notes when preparing for trial. For example, researchers at the University of Southampton in the UK published a study in 2006 that found “the error rate of fingerprint analysts doubled when they were told the details of the case they were analyzing”. Balko makes recommendations for how to improve the system by creating different incentives, namely rewarding analysts for doing accurate work and penalizing them for errors.
Read more here
Balko, Radley. “Getting Forensics Right”. March 14, 2011
Bias can be caused by medical examiners or crime labs reporting directly to the attorney general or other state law enforcement official and influences the entire process of collecting and analyzing scientific evidence. A 2002 study by Michael Risinger, a law professor at Seton Hall, identified five different parts of scientific analysis susceptible to influence by unintentional bias. They are: how the analyst observes the initial data, how he records the data, how he makes calculations, and how he remembers and reinterprets his notes when preparing for trial. For example, researchers at the University of Southampton in the UK published a study in 2006 that found “the error rate of fingerprint analysts doubled when they were told the details of the case they were analyzing”. Balko makes recommendations for how to improve the system by creating different incentives, namely rewarding analysts for doing accurate work and penalizing them for errors.
Read more here
Balko, Radley. “Getting Forensics Right”. March 14, 2011
Judge Nancy Gertner's Call to Action for Criminal Defense Attorneys
In a UCLA Law Review article titled "Commentary on the Need for a Research Culture in the Forensic Sciences " (58 UCLA L. Rev. 789 (2011)), Judge Nancy Gertner discusses the need for attorneys to familiarize themselves with the forensic sciences. In the wake of the National Academy of Sciences Report, which calls for drastic changes in the scientific community regarding forensic science standards, Judge Gertner advocates for change within the legal community as well. She believes that defense counsel's lack of forensic knowledge could be grounds for a successful ineffective assistance of counsel claim. Judge Gertner cites US v. Pena (586 F.3d 105 (2008)) to illustrate a defense attorney's failure to follow through with a Daubert hearing after it had been granted by the court. Defense counsel should know how the science works so they can actively challenge it at trial.
She writes, "Counsel have to learn that advocacy in cases involving forensic evidence requires familiarity with the kind of issues the NAS Report raised. And further, courts need to make it clear that such familiarity may be one of the benchmarks in evaluating when assistance of counsel is constitutionally ineffective."
Although not mentioned in the article, this issue arose last year in Judge Gertner's own courtroom in the case of James Hebshie. Hebshie was convicted of arson based largely on unvalidated forensic science. His attorneys failed to request a Daubert hearing regarding any of the arson testimony, despite the fact that Judge Gertner repeatedly asked them if they would like to do so. Judge Gertner granted Hebshie a new trial, citing his counsel as being constitutionally deficient for failing to challenge the arson science.
She writes, "Counsel have to learn that advocacy in cases involving forensic evidence requires familiarity with the kind of issues the NAS Report raised. And further, courts need to make it clear that such familiarity may be one of the benchmarks in evaluating when assistance of counsel is constitutionally ineffective."
Although not mentioned in the article, this issue arose last year in Judge Gertner's own courtroom in the case of James Hebshie. Hebshie was convicted of arson based largely on unvalidated forensic science. His attorneys failed to request a Daubert hearing regarding any of the arson testimony, despite the fact that Judge Gertner repeatedly asked them if they would like to do so. Judge Gertner granted Hebshie a new trial, citing his counsel as being constitutionally deficient for failing to challenge the arson science.
Monday, April 11, 2011
Boston Globe Focuses on Wrongful Convictions and Post Conviction DNA Access in Massachusetts
This week, two Boston Globe articles have shed light on wrongful convictions in Massachusetts, and what can be done to remedy them. In an op-ed, Brandon Garrett, a law professor at the University of Virginia, writes about Massachusetts exoneree Neil Miller. Miller was convicted of rape, largely based on mistaken eyewitness testimony. Garrett points out the problems in the system that cause wrongful convictions time and time again. He recommends that all states adopt DNA preservation and access laws, and advocates for requiring that all police interrogations be videotaped.
Another Globe article this week focused on Massachusetts' lack of a DNA access or DNA evidence preservation law. A DNA access law would mandate access to post-conviction DNA testing for inmates, with certain restrictions. A DNA preservation law would require that DNA evidence in a case be preserved for a certain amount of time. The article points out that Massachusetts is one of only two states nationwide that does not have a DNA access law (the other is Oklahoma). However, the article incorrectly states that inmates still have access to testing. Unfortunately, this is not the case. An inmate can request testing, but there is no guarantee at this time that his or her request will be granted by the court. Additionally, because Massachusetts has not enacted a DNA evidence preservation law, officials are currently free to destroy DNA evidence related to a defendant's case, so there may be no evidence left to test. While some inmates ultimately receive testing, others do not. The New England Innocence Project, in conjunction with other Massachusetts organizations, is in the process of trying to get a bill passed that would allow all inmates access to DNA testing and would require that all DNA evidence related to a defendant's case be preserved.
For Garrett's op-ed, click here.
To read the complete Globe article about DNA testing, click here.
Another Globe article this week focused on Massachusetts' lack of a DNA access or DNA evidence preservation law. A DNA access law would mandate access to post-conviction DNA testing for inmates, with certain restrictions. A DNA preservation law would require that DNA evidence in a case be preserved for a certain amount of time. The article points out that Massachusetts is one of only two states nationwide that does not have a DNA access law (the other is Oklahoma). However, the article incorrectly states that inmates still have access to testing. Unfortunately, this is not the case. An inmate can request testing, but there is no guarantee at this time that his or her request will be granted by the court. Additionally, because Massachusetts has not enacted a DNA evidence preservation law, officials are currently free to destroy DNA evidence related to a defendant's case, so there may be no evidence left to test. While some inmates ultimately receive testing, others do not. The New England Innocence Project, in conjunction with other Massachusetts organizations, is in the process of trying to get a bill passed that would allow all inmates access to DNA testing and would require that all DNA evidence related to a defendant's case be preserved.
For Garrett's op-ed, click here.
To read the complete Globe article about DNA testing, click here.
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