Notice: This talk was more unclear than the usual talk I take notes on so it may include more errors than my typical summaries. You may want to email Mr. Scheck to confirm details if you’re curious.
Once again, there is nothing for me to eat so I head to The Treehouse and another talk. Tonight, Barry Scheck of the Innocence Project is speaking at the Law School. The Innocence Project is the group that tries to exonerate death row inmates using DNA and other evidence. Their story is impressive and thus quite scary.
Someone who is apparently Larry Kramer, the new Dean of the Law School, gives the introduction: Barry Scheck had a vision that science could open people’s minds to a spate of wrongful convictions which wouldn’t otherwise be believed.
Barry pays back the compliment: Larry, he says, has accomplished so much. “you are so lucky this man is at this law Law School, I can’t even tell you.
There have been 153 post-conviction DNA exonerations in the US. In 75% of cases, DNA evidence is destroyed, in 40% of the remaining ones DNA ends up favoring the defendant. But DNA is not a panacea: it’s a learning moment for the other 80% of cases where there is no DNA evidence. It let’s us see just how badly our criminal justice system has gone wrong.
Conservative estimates say there have been 238 exonerations since 1989 — the numbers are much larger when you throw in the hysteria cases with their mass exonerations. The percentage of murder exonerations are way out of proportion to their percentage of the prison population.
Then, there’s also the apx. 100,00 people exonerated before they’re convicted, despite clear evidence like false confessions and mistaken identifications.
They really wish they could do a controlled sample so they could learn from which police tactics cause the right and wrong guys to be caught. But they do know that Mistaken identification accounts for 74% of mistakes, false confessions for 24%, etc.
The politics of the subject are pretty easy. Whatever people’s feelings are on the death penalty or prisoner treatment, it’s just good law enforcement to catch the right guy because otherwise he gets away.
Thus they recently passed the Justice-For-All act which requires ou do DNA testing to get federal funding. He points out that Bush didn’t go after Kerry for being opposed to the death penalty (something that’s always puzzled me); he says it’s because Bush was tainted by scandals at the Houston crime lab.
The national news won’t run their stories about exonerations anymore because “they’re not news” — they want the story about the guy who was released but turned out to be guilty. But they can still make headlines at the local levels.
For example, there was a California county where it turns out the police forced a girl to try to identify someone, anyone, as her assailant when she refused.
In another case, the FBI had done 30 years of bullet reconstruction, getting up on the stand saying that the FBI was positive that the bullet they found in the victim was from that guy’s gun, until the National Academy of Sciences did a study of their technique and found it had no scientific legitimacy. That’s thirty years of mistakes — thousands of cases that need to be rechecked now.
The Cleveland Plain-Dealer did a front-page story about these new techniques, featuring a photo of one criminal they said had gotten away. The guy was actually innocent of course, but the real criminal saw the story and turned himself in. This led to them discovering that the prosecutors had done all sorts of misleading testimony of their crime lab results which went back years. (Since the defendant isn’t allowed to get access to the actual crime lab reports, there’s no way for them to catch these things.) The Innocence Project sued and got to do a settlement where they got a massive audit of the case history, with access to all the files.
In Houston, Texas, a girl is abducted by two guys. One guy comes forward and confesses and names his conspirator (Yannez). But the police think it’s someone else, despite a witness, an alibi, timesheets, the works. The crime lab guy gets up on the stand and lies, contradicting even his own previous testimony. They get six leading serologists to sign an affidavit saying this guy is so bogus you need to audit all his cases and you should do it in the same way as they audited the cases in Cleveland.
But they were up against the Houston prosecutor, the same guy who made the argument for banning sodomy Lawrence v. Texas [indeed, the guy was so bad Justice Scalia had to take over and do the argument for him]. But they insist they need to audit the entire Houston crime lab, 24 years of work, the executions of 80 people, more than any other county in the country. The police chief doesn’t want to be holding the bang on this and wants to hold up the 178 people currently on death row, and everybody but the governor agrees with him.
Then they discover boxes of evidence for 8000 old cases the government claimed they had lost. The thing has good visuals — boxes of body parts coming off shelves — that the media forced an audit.
The problem is that there’s no forensic science in the universities to actually verify this stuff, the crime labs mostly make it up without scientific validity. Thankfully, they got a provision in the Justice-For-All Act that requires an independent agency to do investigations about allegations against forensic departments in states receiving federal money.
The New York Innocence Project has done some work on false IDs, which as you may recall are the number one source of errors. Based on 30 years of social science research, including metanalyses, they’ve found that if you say something simple like “if you don’t identify anyone, don’t worry, the investigation will continue” it will lower false positives and not lose any correct identifications.
When you pick fillers (guys who aren’t the suspect to go in the line-up), they’ve learned it works better when you pick people who match the description you were given, not people who look like the suspect. Again, this only decreases false positives.
Same with “blinding” (not telling the guy running the show which man is the suspect). As does showing the different people sequentially instead of all at once.
You can’t suppress the evidence of an identification when it’s already done, but you might be able to get a jury instruction noting that the police failed to follow these procedures. (Indeed, such an instruction might be legally required since the Supreme Court has taken on the job of policing these things.) The statement probably won’t influence the jury but it will drive the prosecutor up the wall and maybe get him to pressure the police to use the better procedures. Also, these jury instructions pile up and if there are a lot of them it might have some effect. (He’s looking for people to help bring a test case on this, but it can’t be in Santa Clara county since they voluntarily adopted all the reforms.)
He thinks there’s a pretty good legal case for this since:
- These instructions are proven scientifically.
- They refer to things completely under police control.
- They’re generally accepted even in the law enforcement community.
New Jersey voluntarily adopted witness reform because the Republican Attorney General had and used the power to force them to. But it probably happened because the New Jersey Supreme Court remanded the case of an exonerated guy because the court didn’t say something. Prosecutors were worried that the Court would begin to require this i they didn’t do it voluntarily.
The Massachusetts Supreme Court went so far as to require videotaping of interrogations, so getting a requirement for these kinds of practices is definitely plausible since it’s cheap and arguably constitutionally-required, unlike videotaping where there really isn’t a legal case for requiring it.
Why aren’t people convinced about this? People have myths about the criminal justice system. It’s an adversarial system and without great defense lawyers you won’t catch things like crime lab people who didn’t even do the work. Prosecutors don’t have any incentive to look into the issue because they expect the defense to do it, but the defense doesn’t know how. And prosecutors fear opening up past cases because the public/future juries will be more skeptical of their claims if they learn that there were screw-ups in the past (as they should be).
There are currently 30 law schools with an Innocence Project.
Another problem is jailhouse snitches. In one case, a snitch sits next to a guy on a bus and claims the guy confessed all his crimes (they made sure to empty the bus before the snitch got on so there were no witnesses). DNA evidence totally exonerates the guy so now they have to audit all the snitch’s cases.
There are even editorials in red-state papers attacking prosecutors for not using DNA evidence ten years ago.
posted November 14, 2004 07:16 PM (Education) (2 comments) #