Justice System & Death Penalty Needs Review

DNA To Clear 200th Person

I have often heard that our system of justice is not perfect, but it is the best in the world. Well, that is all fine and dandy unless you are the victim of a wrongful conviction. This news report indicates that we have reached a milestone where the 200th person is being cleared by DNA evidence. Of course, this person has already served almost 25 years in prison. So now when I hear that old rub about our system being the best in the world I have to wonder if we cannot improve upon a system that is obviously munged in all the wrong places.

When we watch the lawyer shows on television we see a fantastical portrayal of how the system works. The lawyers and cops always seem to get their convictions, with a few exceptions, in the end of the process. But some of these shows illustrate the flaws in our system. Those flaws include the following dynamics:

1. Our law enforcement investigative process is often munged because the police find a likely suspect and then stop trying to work the evidence because a probable suspect is identified. I do not mean to belittle the great efforts by our police. Many cops are honest, hard working and driven by a sense of ethics and professionalism. However, as my grandmother told me many times, "It only takes one bad apple to ruin the barrel." If even one investigator takes a shortcut, or doesn't follow proper investigative process, then the entire system gets munged. We know from experience and history that there have been a lot of wrongful convictions based on these types of errors.

2. Our evidence collection process is often munged because of the field work by criminalists or laboratory processing not being done under stringent conditions. In my own work experience I have seen criminal cases blown because the lab used to process blood evidence was not adhering to proper lab procedures. I have also seen cases blown because the chain of evidence is broken. A good example of this is the now infamous O.J. Simpson case.

Then, too, there are questions about the validity of certain lab processes and evidence analysis. DNA testing is a great example of this type of problem. While DNA is a great forensic laboratory process with great potential to include or exclude a suspect, the problems with DNA lie in how it is collected and how it is processed. Many of the labs conducting DNA analysis have been found to be doing so with problems of cross-contamination, not adhering to the strictest laboratory standards, or having a record of poor processing (creating false outcomes).

Fingerprints, too, are not as reliable as we once thought. We were once told that all fingerprints are unique. We now know that is not always the case. Additionally, the history of fingerprint analysis is filled with problems, including working off of a six-point identification comparison, or a ten-point identification comparison. We now know that anything less than a fourteen-point identification comparison is likely to be wrong in as much as 25% of the cases. Even at the fourteen-point level of comparison there may be a margin of error greater than three percent.

Further evidence problems have been the result of dental records, bite mark analysis, bite radius comparison and dental reconstruction techniques used in a lot of cases. Not too long ago there were reports of a bite mark and bite radius expert from Louisiana that was used in cases all over the United States who was found to have no genuine credentials in the field of forensic anatomy, forensic dentistry or even laboratory science. Making things worse, many subsequent forensic studies have brought the entire concept of analyzing bite marks and bite radius into question. In terms of dental records, most people receive treatment from dentists in five or six places and several different dental practitioners over their life time. It is almost impossible to track each one of these practitioners down to find all the records to assure an adequate and accurate dental comparison.

3. Our system of legal representation is munged. Unless a suspect or accused is inherently wealthy enough to purchase the services of a legal "dream team," most suspects are left to their own devices for legal representation, or to the public defender system.

There is no way to actually verify the quality of the legal services being provided to a person paying for legal representation out of pocket. There is no genuine record of the cases lost or won by any given attorney. A lawyer can represent a person in any type of case, even if their experience and expertise in a particular area is not proven. While in the bigger metropolitan areas lawyers often specialize in certain types of practice, in the less metro areas of our nation--of which there are a lot more than metro areas--lawyers often offer services in criminal, family, estate and civil litigation and representation. The reality in these cases is that the lawyer chosen from the yellow pages or even word of mouth referral may not be competent enough to represent a suspect fairly and fully.

In terms of legal aid and public defender representation, the system has been under systematic attack for over 15 years. Under the last several GOP presidential administrations and GOP-dominated congresses the funding for legal aid and public defender organizations have been cut dramatically... even drastically. The case load of most public defenders is so large and so time consuming that case management often achieves only a fair to basically competent level. In this type of legal environment, many questions and investigative options are not possible by the defense.

4. We rely too much on pleading out and negotiating our criminal cases. When an accused person does not have the resources to fully investigate the evidence against them, as is the situation in the vast majority of criminal proceedings, there is a tendency to push the pleading out process and agenda. The prosecution doesn't mind doing this in a lot of cases because it represents a conviction on their side of the equation and saves money in the long term. The public defenders do not mind this process in most cases because it helps to clear their caseload. The courts do not mind this process because our courts are so filled with cases, the less time spent in actually conducting a trial the better.

But plea bargaining seems to benefit everyone except the suspect or accused in most cases. The process doesn't seem to mind that justice, as intended and defined by our forefathers and framers, is not always the objective of the process. Most lawyers are trained, in law school and on the job, that justice and the law are two disparate and distinctly different notions, process and objectives.

5. Court procedures, rules of evidence and dockets are often too confusing and bungled to allow an accused person to fully understand the entirety of the case in which they are involved. While lawyers are supposed to educate their clients as to the process, rules and possible outcomes, it has been my experience as an expert witness and state witness against accused persons that such is not always done. Our laws and courts are too far removed from the reach of the average citizen. Even the filing fees and the preliminary screening processes make justice unreachable in a lot of cases.

A case on point is a situation in which I got involved in trying to negotiate a housing problem for one of my brothers. The landlord had removed the door to his apartment and stolen the rent money. We had this on videotape and had two other tenants willing to testify that they saw the landlord remove the door. Clearly this was a violation of housing laws as well as a criminal offense. As a housing advocate with several years of experience, I went to see the landlord to negotiate some sort of resolution. I had another apartment available for my brother to move into within a relatively short time as a back up if negotiations failed. As I entered the landlord's place of business and identified myself, he and his wife began kicking, screaming and punching at me.

The long and short of it is that we ended up at the court house in front of one of the clerks in the probable cause process. We had videotape, witnesses and adequate evidence to demonstrate criminal and civil breaches of the law. Upon entering the clerk's office the landlord called my mother a dirty name and tried to punch her in the back of the head while the clerk was reading over the case file. When we complained, the clerk kicked us out of the office and sided with the landlord and his wife. We were immediately referred to a mediation agency rather than being allowed to bring the case before a judge. We had to go to the agency or the clerk would not continue with the probable cause process. When the mediator determined that neither party was willing to participate in the ADR process, we went back to the clerk. He dismissed the case without a hearing.

There was never a moment when justice or due process was made available to us. The clerk used his discretionary powers to rule the case as unimportant and insufficient for a probable cause ruling... without ever examining the evidence brought with us. Similar dynamics exist in a lot of the plea bargaining that occurs in our legal system. Certainly we want plea bargaining and pleading out to be an option in our legal system. But when it becomes the predominant way to deal with cases and causes injustice to occur, we need to re-examine it in its entirety.

6. Justice, and legal representation, costs too much. While our Constitution specifies that justice should not be for sale to the highest bidder, that is essentially how our system works. The court fees alone are an example of arbitrary, capricious and often prohibitive barrier to seeking justice. Lawyers are charging a lot of money for simple representation and a lot more for more complex representation.

A simple letter, often derived from a set of boilerplate templates, can cost a client upwards of a hundred bucks. A court appearance can cost $300 to $600 per hour, including charges for the time a lawyer travels to and from the courthouse (especially true in places where lawyers practice in multiple jurisdictions or rural areas).

Lawyers in the bigger firms are evaluated not only on the cases they win, but predominantly on the number of billable hours (or portions thereof). The old joke is that if a lawyer is wiping his butt in the bathroom and thinking about his caseload, he will bill everyone of his clients a minimum of 15 minutes for that activity.

Most ordinary folks cannot afford legal representation or the time, money and energy it takes to get the court's attention, so justice and a fair process are almost totally removed from their grasp.

7. Getting the courts to open a case to review evidence, consider new evidence, or review the level or representation or violations of due process is harder than pulling teeth from the mouth a an angry, hungry lion. There are several organizations now advocating for such reviews, but even these folks do not seem to be able to guarantee the courts will look at these important issues.

8. The presumption of innocence has become a joke. While our Constitution requires the presumption of innocence, the de facto way the courts and law enforcement work all but eliminates that presumption. It is not supposed to be the way in which we conduct our legal processes, but it has been the case historically and is increasing worsening.

So when I read yet another case where an innocent person has served an excessive amount of time in prison for a crime that he/she did not commit, I get significantly concerned. I especially get concerned when I read that several states are seeking to reinstate or become more ready to assign the death penalty sentence.

We really need to clean up our legal system. The recent undermining of our Constitution and the legal system, and legal standards, by President Bush, John Ashcroft, Alberto Gonzales, Donald Rumsfeld and others raises these issues to new heights. The circumvention of civil rights, human rights, due process and abolition of the right to habeas corpus in those cases against alleged combatants or alleged terrorists is overwhelming evidence that our system is under attack and constant erosion.

A former Army cook who spent nearly 25 years in prison for a rape he did not commit is scheduled today to become the 200th person exonerated by DNA evidence, underscoring the quickening pace of overturned convictions, according to the Innocence Project.

The New York-based legal group says the 100th exoneration occurred in January 2002, 13 years after the first exoneration. It took just more than five years for the number to double.

"Five years ago, people said that the number (of exonerations) was going to dry up because there just weren't many wrongful convictions," said lawyer Barry Scheck, who co-founded the Innocence Project in 1992 to help prisoners prove their innocence through DNA evidence. "But clearly, there are plenty of innocent persons still in prison. There's no way you can look at this data without believing that."

David Lazer, a Harvard University public policy professor who specializes in DNA issues, says improved testing technology and an increase in the number of lawyers who are taking on DNA cases should result in a continued increase in the number of wrongful convictions that are set aside.

Convicting an innocent person is "every prosecutor's nightmare," said Joshua Marquis, vice president of the National District Attorneys Association.

The "tiny number" of exonerations suggests that the "epidemic of bad convictions" that Scheck suggests is "fiction," said Marquis, chief prosecutor in Clatsop County, Ore. There were 1,051,000 felony convictions in state courts in 2002, up from 829,300 in 1990, according to the federal Bureau of Justice Statistics.

The exoneration milestone is to be reached today in Chicago, where Cook County prosecutors and Innocence Project attorneys together will petition a Chicago court to set aside Jerry Miller's 1982 conviction, said Tandra Simonton, a spokeswoman for the prosecutor's office.

Miller, 48, was convicted of raping, robbing, assaulting and kidnapping an office worker in a Near North Side parking lot in September 1981.

REFERENCES:

DNA Tests Prompt Review of '92 Illinois Rape

A man imprisoned for a 1992 rape was one step closer to freedom Friday after DNA tests appeared to clear him in the attack, his attorney said.

Marlon Pendleton, 49, was released on a bond until a hearing scheduled for next Thursday, when a judge is expected to consider a motion filed by his attorneys to vacate the rape conviction.

But Pendleton may have to spend at least several days at Dixon Correctional Center. As a sex offender, Pendleton is required to make living arrangements and work out details for his release, his attorney Karen Daniel said.

Pendleton demanded DNA testing after his rape arrest, but police lab analyst Pamela Fish said there wasn't enough genetic material to test the evidence. Pendleton was convicted based on the victim's identification.

The expert who conducted the new tests, Brian Wraxall of Serological Research Institute, said Wednesday there was "a reasonable amount of DNA."

In addition to the 1992 rape, Pendleton was nearing the end of a 12-year sentence for sexual assault. Pendleton claims that he's innocent in both cases, "and I believe him," Daniel said.

Scientific Testimony: DNA Testing Problems

* Background on Houston Crime Laboratory Scandal (March 7, 2003)
* DNA Evidence Sent Wrong Man to Prison (March 11, 2003)
* More DNA Testing Problems in Virginia: Va. v. Leon Winston (Nov 27, 2005)
* Independent Review Panel (Eisenberg Committee) Report
* Virginia Refuses Condemned Man's Request for Access to Scientific Data That Might
Prove His Innocence (July 7, 2005)
* ASCLD-Lab Review of DNA Testing in the Earl Washington Case
* Update on Lovitt Case (July 9, 2005)

INDEPENDENT INVESTIGATOR ISSUES FIFTH REPORT ON HOUSTON POLICE DEPARTMENT CRIME LAB

Houston Police Department Lab Investigation

Crime & Science: The Weight Of Evidence

Seattle Post Series: Errors In Evidence

Oversight of Crime-Lab Staff Has Often Been Lax

A close look at the Washington State Patrol crime lab reveals a stressed system where officials have been slow to deal with misconduct by longtime employees.

Crime Labs Too Beholden to Prosecutors, Critics Say

Flawed forensic work not only leads to wrongful convictions, it leaves criminals on the street.

That's a good reason to care about reforming state-run crime labs, legal experts say.

"What you have in this country is an epidemic of crime lab scandals," said Barry Scheck, president-elect of the National Association of Criminal Defense Lawyers.

Scheck is co-founder of the New-York based Innocence Project, a group that has helped exonerate 145 wrongfully convicted prisoners.

"Forensic science has to be an independent third force in the justice system," he said, "not beholden to prosecutors and police."

Proposed solutions center on more government scrutiny and better-funded labs. At the top of the list is a federal law requiring crime labs to comply with the same kind of rules medical labs have had to follow since 1967.

Clinical lab workers have to take frequent "blind" proficiency tests that are mixed into their regular work -- unlike crime lab staff who know when they're being tested.

Blind testing would uncover a lot more errors at state crime labs, said Janine Arvizu, an expert from Albuquerque, who has audited federal and private labs. "The forensic industry just won't bite that bullet," she said. "There's this attitude that, 'We work for the good guys -- just trust us.' "

Even the national voluntary accreditation group recommends, but does not require, blind testing.

"If you know it's a proficiency test, the person may do better work than usual and double-check it more," said Ralph Keaton, executive director of American Society of Crime Laboratory Directors.

Washington crime lab officials say blind testing is too costly and difficult to administer. The system would have to design its own tests and collude with police to pass them off as real since forensic scientists consult with officers, said Barry Logan, director of the Washington State Patrol's Forensic Laboratory Services Bureau.

Critics also want a federal law to require regular inspections by independent outside experts and licensing of forensic scientists.

"We really want to get the bad guys who did it," said John Strait, a Seattle University law professor who teaches forensics. "We want reliability in the system."

Shadow Of Doubt

A year ago, the State Patrol conducted an internal audit of Arnold Melnikoff, a forensic scientist accused of improperly testing the evidence in some cases. The audit examined 100 felony drug cases, and troubling flaws were found in 30.

Seventeen of those cases resulted in convictions for crimes ranging from simple possession to making meth. But none of the 22 defendants in those cases was notified about the flaws, a P-I investigation found.

Tarnish On The 'Gold Standard': Recent Problems In Forensic DNA Testing

DNA evidence has long been called “the gold standard” of forensic science. Most people believe it is virtually infallible — that it either produces the right result or no result. But this belief is difficult to square with recent news stories about errors in DNA testing. An extraordinary number of problems related to forensic DNA evidence have recently come to light.

Experts May No Longer Testify That Fingerprints 'Match'

For the first time, a federal judge has ruled that fingerprint experts
cannot tell juries that two fingerprints are a "match" because the science
they rely on does not meet the U.S. Supreme Court's Daubert test.

But Senior U.S. District Judge Louis H. Pollak of the Eastern District of
Pennsylvania stopped short of tossing out all fingerprint testimony in United States v. Plaza, saying such a ruling would be "unwarrantably heavy-handed."

Instead, Pollak sided with the government by taking "judicial notice" of
the fact that fingerprints are both "unique" and "permanent."

He then ruled that the experts on both sides can testify about how the
prints were obtained and the similarities and differences between them,
but are barred from expressing any opinion about whether the prints are a
"match."

The ruling is a huge victory for the criminal defense bar, especially
since it comes from a judge with the stature of Pollak, a former dean of
both the Yale and University of Pennsylvania law schools who is routinely
invited to sit on the U.S. Court of Appeals.

100th Death Row Exoneration

Ray Krone, once labeled the "snaggle tooth killer," signed autographs for fellow inmates as he walked out of prison after being exonerated by DNA. He became the 100th death row inmate to be proven innocent since 1973, the modern death penalty era beginning post- Furman.

Ray Krone was twice convicted for a murder he did not commit. A judge sentenced him to death after the first trial and to life at the retrial. The evidence against him was circumstantial, including shoe prints and bite marks. Due to an accident, he has a distinctive dental pattern. A government expert testified that bite marks on the victim "matched" Ray Krone's teeth print. The argument was he had to be the "snaggletooth killer."

Now that the DNA results have exonerated Krone, the bite marks were compared to Phillips, the sex offender whose DNA was found on the victim. With the DNA results inland, the bite mark "expert" determined that bite marks are not uniquely Krone's pattern-- the bite marks are also "consistent with" Phillips.