Detectives with a Mission: Texas Exonerees Help the Wrongly Convicted

Three Dallas men freed after being exonerated for crimes they didn’t commit dedicated the rest of their lives to saving others in the same situation. Filmmaker Jamie Meltzer tells their story in a PBS documentary to be aired Monday.

Christopher Scott, Johnnie Lindsey and Steven Phillips served a combined 60 years in prison for crimes they did not commit. But when each of them was finally exonerated, they did more than just celebrate their newfound freedom. They decided to put their hard-won knowledge of the criminal justice system to help others in the same position, by forming a detective agency to do the kind of investigation that would otherwise be unaffordable to victims of wrongful convictions.

But their organization, called the  House of Renewed Hope, offers services not usually associated with private eyes. Not only does it fight for innocent people in prison; it supports the exonorees once they get out. Their story is told in “True Conviction,” a documentary directed by Jamie Meltzer, which is scheduled to be shown Monday on PBS stations.

Scott and Meltzer sat down recently to talk with TCR’s Julia Pagnamenta about how the film was made, and about why it takes a combination of detective skills, prison-honed patience and sheer stubbornness to succeed in their chosen mission.

The Crime Report: Jamie, how did you become aware of Christopher Scott, Johnnie Lindsey, and Steven Phillips, and the work they were doing on behalf of wrongly convicted people?

JAMIE MELTZER:  A friend named Michael May, who was a reporter in Texas, had done a story about the Dallas County exonorees. At that time, in 2012, there were more than 30 exonorees. Then he told me that Chris [Scott] and a few of the other guys, were about to start a detective agency, an investigation team to look into other wrongful convictions. I thought that was a brilliant, really interesting idea. As a documentary filmmaker you are looking for a really compelling story as a way to shed light on a larger criminal justice issue. This seemed like the perfect vehicle for that. Then I spent an afternoon with Chris and about a dozen other guys who were all exonerated. Just being in that room was really moving. It convinced me that this was a story that needed to be told.

TCR: And the criminal justice system was new to you?

MELTZER: I hadn’t had any experience with the criminal justice system or thinking about it too deeply. Like most people, until it affects you personally, it’s sort of unfathomable that what happened to these guys would happen. Of course, after you spend time with the exonorees, you realize it can happen to anyone. Steven Phillips is a white guy who is wrongfully convicted, but the film really is about structural racism in the criminal justice system. There are many more African Americans that this is happening to. It made me ashamed that I had never thought that this could be a danger.

TCR: Chris, can you talk more about your relationship with Steven, who was wrongfully imprisoned for 25 years on a sexual assault case? In the documentary you explain that Steven helped you out once you got out of prison in 2009. He gave you $20,000 to help you start your new life.

SCOTT: Steven gave me that out of his compensation money because he [had gotten] out before me. He had already lived the experience of being an exonoree, and he knew the challenges it would take to get through those dark and trying times. He just pretty much took me under his wing and told me how to survive and live again. He said, “Don’t let getting wrongfully convicted hinder you.” [It’s] supposed to make you stronger, supposed to make you want to do things that help you change the criminal justice system. So his experience gave me my experience, and that $20,000 helped me from the time that I got out to the time I got compensated. That was just Steven’s good nature.

TCR: The documentary gets some incredible access that you wouldn’t typically see on screen.  For instance, there’s a moment when you visit Steven Phillips in jail after he gets arrested [a second time] because a police officer searches his car and finds drugs.

MELTZER: We were very persistent as a production team. When Chris and the guys want to interview someone for a case, it’s very hard to turn them down because they have such a compelling back story. As for me, the filmmaker, I would just follow up. It wasn’t that big of a deal. I remember within that jail environment Steven was in, he made really good friends with the warden because she understood his story. She was just a good person and she responded to the story.

CHRIS SCOTT: Steven was dealing with a drug situation. When people get exonerated they still have demons that they are fighting and it’s easy to slip back into that mode, so being able to capture Steven in jail maybe did him some good because he knew we were there for him.

TCR: What happened to Steven’s case? The documentary ends before his case reaches a verdict.

MELTZER: It gets dismissed.

SCOTT: Illegal search and seizure.

Documentary filmmaker Jamie Meltzer learned about the House of Renewed Hope from a reporter at the Texas Observer. Photo courtesy PBS

MELTZER: Basically the police officer looked him up and somehow saw that he was convicted but he hadn’t been convicted because his record should be expunged.

SCOTT: I guess [the police] thought they had probable cause. He had a shotgun in the car window, and shotguns are legal [in TX], but maybe the cops were just suspicious. As Steven said, the cop Googled him and sees that he is a felon. Steven said, I am not, so the cop says OK, we are going to search your car. The judge dismissed him because he said it was evidence [obtained as] fruit of the poisonous tree. It should have never happened. He got really lucky. The crazy thing is Steven missed a trial date because he was in the casino, and the judge looked at his Facebook page and sees a picture of Steve at the casino the day he was supposed to be in trial, but the judge still let him make it. So in actuality you can look at [Steven’s case] as having that white privilege. Because if that was an African-American guy he would have been hung, and that’s why I am glad Steven is part of my team because it shows you the racial bias. Steve got away with it, but the average black guy is not going to get away with none of that. He is going to go to prison.

TCR: Do exonerees receive any form of help or support when they get out of prison?

SCOTT: Exonorees get nothing. It’s just like, “hey, we let you go.” [You don’t get compensated] until you get declared innocent.

TCR: Which can take a long time. How long did it take for you?

SCOTT: I think mine was the quickest. I think I got exonerated in 90 days. But other exonorees, it took them a year or two, or three or four years, to get fully exonerated. I think for me it was so quick because I was the first non-DNA case, and it was two of us, so they wanted to set a precedent. People with non-DNA cases now have a fighting chance. With me being released, it just showed them that even though you don’t have any DNA, you can actually be found innocent.

TCR: Chris, you were in prison for 13 years. During that time, did you think you would ever be exonerated?

SCOTT: At one particular time I didn’t, but as the years went on, I thought something has got to break, something has got to happen, but I never knew a guy that came back and confessed to capital murder, so that was the only thing I had to live for. I was wondering will the guy [the man responsible for the crimes] ever do it? Eventually he did.

TCR: How did he go about confessing the murders?

SCOTT:
The first time he confessed was kind of weird because he confessed to my brother, not knowing the guy was my brother. My brother worked at the barber shop, and [the man] came into the barbershop talking about the case, and my brother overheard him and said this sounds like my little brother’s case. They ended up meeting in the yard and he showed him a picture of me, and he said, yeah, that’s the guy who’s in prison for me right now, Christopher Scott. But that happened in 2002, and I didn’t get released until 2009. I do seven more years.

TCR: What did your brother do with this information?

SCOTT:
He wrote an affidavit and we sent it to the district attorney’s office, and their response was, there is no way we are going to accept this affidavit because we’ve never done a non-DNA case before. There is nothing to prove that you didn’t commit this crime. It took until 2006 until we got the first African-American district attorney in the state of Texas, Craig Watkins. He took it upon himself to see if there was anything he could do about this non-DNA case.

TCR: What was your experience like, getting out of prison after serving 13 years for a crime you didn’t commit?

SCOTT: Well, being in prison, everything is pretty much controlled. You’re in a controlled environment. You can only think so far out the box. And being free is having the freedom to do exactly what you want to do. It’s about cherishing those small things in life, and it’s crazy because in prison you are limited.

Steven said that when he first got out he stood in the potato chip aisle for about 45 minutes because he was mesmerized by the varieties. I was the same way with ice cream. In prison, you got vanilla, chocolate, strawberry, maybe Neapolitan, that’s it, you don’t have the sherbets, or the mixtures of ice cream, or the butter pecan, praline and cream.

TCR: Jamie, you started filming “True Conviction” in 2012, and what makes the documentary so compelling is that by following the lives of the three exonorees, viewers witness these incredible, often traumatic events unfold. Steven, for instance hadn’t been arrested when you first started filming. And you were filming the scene in court where Chris’ son gets sentenced to seven years in prison.

MELTZER: That’s the power of documentaries, you are along for a journey, and you connect with amazing things people are doing, like Chris and his team. Neither of us knew what was going to happen.

TCR: Chris, was there ever a moment where you were thinking, or you told Jamie, I don’t want this to be captured?

SCOTT: I wanted the world to see [how] me being taken away from [my son] at a young age affected him. Because at the age of 16 is when he caught his first charge, and went to prison for it. And him knowing I wasn’t there, he was like, you were all I had. Once you left I had no one to depend on, so he started depending on himself and turned to a life of crime.

I know that if I hadn’t been wrongfully imprisoned my son would have never [committed the crime].  I would have been able to raise him right, raise him properly in terms of doing the right thing in society. A lot of times when kids get in trouble it’s [because they are] from a broken home. Because their dads aren’t there to show them how to be a man. It triggered a lot of emotion. I wanted this to be captured because the world needs to see that this happens and it destroys [the lives of] everybody that it touches.

TCR: The documentary captures the cyclical nature of this destruction. There is a lot of footage of you caring, and raising your grandson.


SCOTT: My grandson is the same age that my kids were when I left [for prison].

TCR: The documentary follows the story of two men who claim to be wrongfully incarcerated, Max Soffar and Isaiah Hill.

SCOTT: Isaiah Hill’s case came to me because his cellmate wrote to me. He was accused of aggravated robbery over $150. The way he expressed himself about being falsely imprisoned, and then the emotions he had, [I knew] this is not a guy who is lying.  . So I took it upon myself to help him as much as I could. We were working on Isaiah’s case for at least three years, trying to help him get exonerated. We located the guy who had supposedly committed the crime, Don Wallace.

TCR: After serving 40 years, Isaiah Hill wasn’t exonerated?

SCOTT:
He got paroled because [Don Wallace] wouldn’t confess to the crime. There is no way in the world that [Isaiah Hill] committed these crimes because Isaiah is mentally challenged, he’s illiterate, so I don’t see him concocting something like this to commit a robbery. So from day one I believed him. He was locked up in Brownwood, TX. It’s a racist town. We came to realize that Isaiah was set up.  We even proposed to Don Wallace that we can get a letter from our attorney saying you won’t be recharged. But he would not do it. He said he had beaten nine aggravated robbery cases, and I was [thinking] —those nine cases you beat, you probably got nine innocent people in prison behind those nine robberies.

TCR: Because he wasn’t exonerated, besides not getting his name cleared, Isaiah didn’t get compensated?

SCOTT: He can’t get compensated.

MELTZER: He gets social security.

SCOTT: We made sure he got some kind of income.

MELTZER: But he’s doing really well. He got out in 2016, and it took a year after that to get the ankle monitor off.

SCOTT: And now he’s married.

TCR: And what about Max Soffar, who maintained he was wrongfully accused of committing a triple homicide in Houston bowling alley?

SCOTT: He was on death row for almost 40 years. Michael May, the reporter from The Texas Observer who brought us to Jamie’s attention, told me about him. When I first encountered [Soffar] I believed him.  Because for a person to give you that much detail about the case I got the feeling he was telling the truth. Like we said in the documentary, Max Soffar was a habitual liar. He fabricated a lot of stories, so I think they just got tired of him crying wolf, and eventually they closed the case.

TCR: He was convicted based on his confession, which has been proven to be an unreliable method of extracting information.

SCOTT:
He had three different confessions, and none of the confessions met each other, or had anything to do with the case itself. But when you have a prosecutor who said God made him convict Max Soffar without any physical evidence, then you know there is a problem. How can god allow you to convict somebody without any evidence, and allow him to be put on death row?
We had a prime suspect [Paul Reid], but he died on death row of natural causes.

MELTZER: We went to Nashville and met the public defender for Paul Reid. There’s a scene about him in the film. He killed eight people in a similar way, so Chris and the guys interview a couple of people who know different things about Paul Reid, and there’s a lot of evidence. If he was alive they would have gone to him.

TCR: And Paul Reid was already in prison for the other murders he committed?

SCOTT: He had seven death sentences.

TCR: So if Reid was already in prison, what did he have to lose by admitting to the murdersSoffar was wrongfully serving time for? His silence kept an innocent man in prison.

SCOTT: I just think a lot of people don’t want to confess. This guy already had seven sentences, why not come forward and confess, but it’s just him feeling that that’s the one he got away with.

MELTZER: Well, he also said he was innocent of the things that he did do. He wouldn’t want to admit to having done this other thing when he hadn’t even admitted doing the crimes he was convicted for.

TCR: But in Paul Reid’s case there was evidence that pointed to his culpability?

MELTZER: There’s a lot of evidence that points to it, the problem was that at Max’s trial they wouldn’t let him bring up anything about Paul Reid.  If Max hadn’t died, there was about to be an appeal.

SCOTT: Yeah, in three days.

MELTZER: They could have brought that up in a new trial, and maybe the jury would have thought differently of the confession.

SCOTT: One of the key witnesses never got a chance to testify and new evidence was discovered before he died. We knew Max didn’t do it; we just didn’t have enough to prove that he didn’t do it.

TCR: Did you know when you first met him that he was sick?

SCOTT: No, not when we first interviewed him, but a year or so later we found out that he had liver cancer.

TCR: At Max Soffar’s funeral, which the documentary captures, Chris, you say in his eulogy, “the state killed him.”

SCOTT: He was trying to get exonerated and get better health care. Maybe he could have gotten compensated and paid medical bills for his cancer treatment. But he didn’t make it.

TCR: Did you ever meet with Texas Gov. Rick Perry on issues of wrongful convictions?

SCOTT: Yeah, a couple of times. I didn’t like him then, I don’t like him now. The only time we really met him was dealing with the legislation of compensation, he signed the Timothy Cole Act.

TCR: Your organization is billed as a detective agency, but the services you, Johnnie, and Steven provide extend far beyond investigative work. You provide each other with emotional and financial support as well.

SCOTT: I just put myself as the man with many faces, you know? Because at the end of the day, you have to be a detective, you have to be a counselor, you have all those faces, because even dealing with someone like Isaiah Hill, we had to make sure he was right. We had to make sure we got his birth certificate, his social security card, identification. We had to make sure he had his doctor’s appointments. Made sure he got his meds, so we were doctors, lawyers. We were everything to Isaiah, and to our other clients we are the same way.

TCR: Johnnie, who was wrongfully imprisoned for 26 years on sexual assault charges, died since the documentary came out. Chris, do you want to talk about him?

SCOTT:
 Johnnie had the same passion I had, to free as many people as we can before we leave this world.  And Johnnie was the guy who asked good tough questions, but was able to reason with people. We were like good cop, bad cop. I think I was the bad one because I pretty much applied the pressure. He’s pretty nurturing, he looked for the good in pretty much everybody.

TCR: Since Johnnie’s death, have you had any other exonerees come on board? How are you at House of Renewed Hope managing this workload?

SCOTT: No, I didn’t bring any new exonorees on, because our visions are different. We all have different things that we’re good at. Some are good with lobbying with legislation; some are good with reentry, some with investigating cases. I think we all got out and got our own feel of things. You know, I had Steven and Johnnie to help me, but the majority of the people who helped me get exonerated from the district attorney office also work with my organization.

TCR: Although exoneration is the ultimate goal, life post-exoneration is full of challenges. As an exonerated person, is your record fully expunged or do you face the same barriers in registering to vote and finding employment—answering questions about former incarceration on official forms for instance—as someone whose been formerly incarcerated?

SCOTT:
I vote every year. My record is expunged. I don’t check any boxes. Some exonorees are not fully exonerated, so they have to check that box, but most of us don’t.

MELTZER: But a lot of exonorees still have the same challenges. Johnnie was in prison for 26 years, and Steven 25 years, and they got out as older men with all that time taken away from them and no way to develop a career. And Chris has done all sorts of entrepreneurial things since he got out, but he’s also had this time taken away from him. From 27 to 40, that’s a pretty important time to develop a career.

That’s the whole point of the compensation, and why it’s needed. If you are struggling with PTSD, you actually need more support. That’s the thing, the parolees get support, they get a little bit of money, it’s not necessarily a great program, but it’s something. Exonorees just get out, that’s why [Chris’ organization] is so important.

TCR: Right, there is not a state-supported system for exonorees, unless they start one for themselves.

SCOTT: Yeah, I think a lot of people look up at Dallas County exonorees because of the [foundation] that we’ve laid. It’s a brotherhood. It’s no longer about us, we’re out, and we’ve been compensated. We’ve been living our lives for 10 years now. We want to pave the way for the men and women who’ve been left behind. Things are much better now than when we first got out. There are more exonorees that you can go to for support and help. We can be each other’s psychiatrists. I can lay on your couch, you can lay on mine, and I can pick your brain because I know pretty much the questions to ask you. What’s going to make you mad? What’s going to trigger your anger? What makes you happy?

And kudos to the women who deal with us because we are screwed up. We are not whole. There is something still missing. I don’t think we’ll ever be completely whole again.

“True Conviction” will air on PBS Channel 13 on Monday, April 30th at 10 pm EST and can be live streamed here. Julia Pagnamenta is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org

One Man’s 22-Year Search for Justice

Calvin Buari, convicted of a double murder he didn’t commit, was a casualty of over-zealous prosecutors in New York’s tough-on-crime era of the 1990s. In a conversation with The Crime Report about his new podcast, “Empire on Blood,” investigative journalist Steve Fishman tells the story of the battle to clear his name.

Calvin Buari spent 22 years in prison for a double murder he didn’t commit. He was a notorious crack dealer in The Bronx, N.Y., when he was arrested, which made the struggle to prove his innocence─and find allies who could help get his case heard─that much harder.

But when he persuaded veteran journalist Steve Fishman to investigate, his fortunes changed.

Buari was exonerated in May 2017, seven months after his conviction was vacated and he had left prison. The story of Buari’s search for justice is told in a recently released podcast, “Empire on Blood.” The seven-part podcast takes listeners back to the New York of the 1990s, when the city was reeling from a crack epidemic and 2,000 murders a year, and newly elected Mayor Rudy Giuliani came to power promising “tough-on-crime” strategies. But it also offers troubling lessons for today about the collateral damage of those strategies.

In a conversation with TCR Deputy Editor Victoria Mckenzie, Fishman reflects on his seven-year-long investigation, on how he battled his own doubts about the case at the beginning, and on what his podcast reveals about the workings of the criminal justice system.

The Crime Report: Why were you obsessed with this case?

steve fishman

Steve Fishman in the studio (courtesy Panoply Media)

Steve Fishman: I resisted the obsession for a long time, but I guess the origin story, because I’ve thought about this a bunch, is the first call with Cal. He had been put in touch with me by a guy I knew, Emel McDowell, who in fact had won his innocence after being convicted of a murder at the age of 17. Emel says to me ‘I think Cal is innocent,’ so Cal picks up the phone and cold-calls me. And there he is at the other end of the line. Having had some experience with prisons, I can picture Cal on the payphone, standing with these inmates behind him waiting on line for their 15 minutes. And he’s kind of racing through the details of his case and all of this evidence, and it’s a blur—even if I really wanted to I couldn’t have deciphered it.

Maybe it was one of those moments where I was particularly open or vulnerable. I mean, his voice was filled with despair despite the fact that Cal, as I later came to know him, really learned patience and emotional control in prison. I’m imagining this guy with the whole system stacked against him running this campaign for freedom from this prison payphone. It was one of those moments where I was able to imagine, to whatever extent I could, that it must be excruciating to face those kinds of odds.

[I said] “OK Cal, send me the transcripts,” and then these 1,100 pages arrived. It turns out that not only is this one prosecution witness, Dwight, Cal’s “great friend,” really organizing the prosecution, but the prosecution is handing out deals. All of the witnesses who are brought in by Dwight have received an order of protection, which means that Cal and his defense attorney cannot know the names of witnesses who are testifying against him until they walk to the stand. So I’m reading this and I’m thinking— this is crazy! This is insane, this is unfair.

And then I read that in chambers, the judge is saying the same thing. It’s the first day of trial, and the prosecutor in chambers says he just got a phone call from a new witness, and it’s like raining witnesses… and the judge says, for all I know there’s a call out to the entire northeast, any drug dealer wanting to testify will have the charges dismissed against them!

And it just became a moment for me where you start to feel like—the system’s not fair.

It became a road that I was willing to walk. And I have to tell you, it wasn’t easy. I mean, Cal’s no angel. I liked him, I think he’s changed— but he was a guy who was boasting that he helped bring crack to The Bronx. He was a very successful drug dealer and he was ruining neighborhoods, and he needed to be off the streets.

TCR: It seems challenging to get the general public to care about the wrongful conviction of an admitted crack dealer

Fishman: It was a real problem for the audience, and it was a problem for editors— it was a problem for the lawyers that Cal reached out to! He got on the phone and told them the evidence, and when they heard he was a drug dealer, they said: “OK, best of luck.” But I came to the belief that the criminal justice world and maybe the world in general is a complicated place, and the podcast really takes that head on, and I’m proud of that.

oscar michelen

Courtesy Panoply Media

Calvin Buari and his attorney, Oscar Michelen (courtesy Panoply Media)

I think we say, yeah he’s no angel, but what does that mean? What right does that give you as the criminal justice system [to] say, “Well, he didn’t do this crime but he did another— so let the wardens sort them out?” I think that’s a pretty live question for the criminal justice system. People are flawed. Does the past always determine the future? If you believe in rehabilitation and psychotherapy, then no.

TCR: The story also epitomizes a key moment in New York City history, the Giuliani era. Where was your crime reporting at the time? How was this different from the other wrongful convictions?

Fishman: I had reported the wrongful conviction of a guy named David Wong, who was actually in prison for a robbery that he did commit, and then was accused and convicted of a prison yard murder he did not commit. Again, it’s a guy who’s not exactly the high school honor student that you want to root for. The difference for me is that I came in after he had been exonerated and I was telling that story retrospectively. So I was involved in it as a piece of drama that I had all the pieces for.

Cal’s case was very different, because in many ways I was really a catalyst. As a journalist you’re kind of supposed to be a step back, and you’re supposed to be objective. And I certainly was a journalist, as I had to remind Cal at several points. But I was also involved in the story, and I’m going to contend that’s where some of the richness of the narrative comes from.

I started a long time ago in an eastern Connecticut newspaper called the Norwich Bulletin, and the first big story that I ever did was about a rapist-murderer. Part of my portfolio has always been writing about crime, and that’s the reason I would get these envelopes from time to time.

TCR: Who was responsible for Cal finally getting the charges dismissed?

Fishman: Maybe the podcast put a little weight on that side of the scale, because the DA knew it was coming out in a few days and maybe it was a good idea to get ahead of the story. But it was really that Cal was incredibly, incredibly persistent and disciplined. Cal’s a smart and really gifted entrepreneur. One of the things he did on the street that he could not help but be proud of— even when he’s saying “oh, I didn’t realize all the bad I did” — when you get him talking about the crack trade, he says “I was always ahead of the game, I had these marketing gimmicks, I would do sales, two-for-ones,” and there’s a certain kind of pride in his voice. But it is true that he became this quite intuitively gifted businessman.

calvin buari

Calvin Buari (courtesy Panoply Media)

He goes into prison at the age of 24, and spends the next 22 years there. So he really spends his adulthood in prison. And he still has this entrepreneurial gift. He’s writing business plans. He starts a fashion business in prison. And at the same time, he’s maturing. He was all about self-gratification when he was on the streets, and he learns delayed gratification, and patience, and he learns discipline— to the point where he stops even leaving his cell. He just takes his meals in his cell, and reads his books and works on his case, with a level of single-minded devotion that is way beyond my capabilities.

And then, by the way, when he comes out— he’s been out seven months or so, because his case was vacated before the charges were dismissed—he started a business.

TCR: What was your role in the reinvestigation?

Fishman: I will admit that there were a lot of moments when I wavered because Cal’s story was not something that I always believed, not in all of its details. He was a drug dealer in an extremely violent time and he operated on a corner that was dubbed the Corner on Blood [Although] Cal said he was never violent, I always found that to be a little unsettling.

The private eye on the case was a guy who actually had been the private eye on the David Wong case. You meet him in episode 5. He’s a really weird, interesting guy, I mean very colorful. He was on this case and he knew that I was interested in Cal’s case, and he said, “Do you want to take a train ride? There were these new witnesses, and he didn’t know what they were going to say. We’re at a kind of restaurant at a Holiday Inn [in North Carolina], where we meet two sisters. One of the sisters had flashbacks of the scene right in front of me, because she had been 25 feet away [from the murders]. It solidified for me Cal’s innocence. And it certainly helped Cal’s case.

myron beldock

Myron Beldock (courtesy Panoply Media)

So Cal gets the affidavit from her and he manages to get hooked up with Myron Beldock, the legendary attorney who got Hurricane Carter out of prison. Beldock, then 85 years old, comes off his deathbed to basically take up Cal as his last case—and then he dies. And that’s another moment that really pushes me ahead on this path. Cal is a guy who can do 100 pushups without a stop—he’s a tough dude—and he hears that Beldock has died, and he’s in tears. It was just a very emotional moment. It was emotional for him, it was emotional for me. It was one of those moments where I could actually imagine what it might be like to suddenly have this… not just a setback, it’s like your life feels it’s on a course toward freedom, and then the tunnel you’re going through collapses on you.

Cal needed an attorney afterwards. He can’t make phone calls from prison except to people whose numbers are approved. so he would call me and I would conference in people, and I ended up conferencing in Emel McDowell, the guy who initially introduced me to Cal.

Emel had written the appeal that had gotten him out of prison, and then went to work for a law firm. [Emel offered his attorney] and he finally wins Cal’s case. I was a little bit of a provocateur, a little bit of a catalyst, and a little bit of a witness.

TCR: What was your role with the new witnesses?

Fishman: It’s a good question because I was there as a journalist, and I was introduced as a journalist. Journalists don’t usually get to ride along with investigators interviewing witnesses for the first time. I was also there as somebody who had been involved in the case for a long time. I would say that I was not there as an advocate, but I was certainly there as a participant. I did not see my role as urging them to come forward, but I grilled her on her story. It was a journalistic interview, but maybe there’s not too much difference between that and another kind of interview. I wanted to know how close she was, and I wanted to know what she saw, and who she saw, and how could she be sure?

Her story was very, very credible, and frankly I was kind of pleased by that, just from the point of view of having some assuredness about the story that I’d been on by that time for three or four years. it reassured me as a journalist, and because I always occupied a kind of strange space; it buoyed me as somebody who had been involved with Cal for a long time, because I knew, I knew as she said that. I knew that this really could change Cal’s life. It took another two years to get there.

TCR: One of the most striking moments for me is learning what happens to the witness who comes forward after 20 years to testify, how this innocent bystander gets punished by a pretty blunt-edged justice system.   

Fishman: This goes I think to a larger question about how justice works. As you’ve pointed out it was the Giuliani era, the 1990s, there were 2000 murders a year. These guys— the prosecutor, the detective— felt they were the good guys. And they were the good guys. Somebody had to clean up the streets. And it wasn’t always pleasant work to do.

I don’t think that these guys are corrupt. I think that in the context of the times, they felt they had a mandate to act, in a sense, by any means necessary. And if he didn’t do this crime, well he did another crime. and you know what? With Cal, it was true. He didn’t do the murder, he did the drug [crime]. They were going to do whatever it took to make sure that someone like Calvin Buari was not on the streets. But the system can’t work that way.

TCR: Earlier this year, in a conversation about conviction reviews, Brooklyn DA Eric Gonzalez, commenting on the flood of murder cases of the 1980s and 1990s, said many of them were not very well investigated. The attitude was “We’ll just let the jury decide.”

Fishman: That could well be true. He probably mentioned, or maybe he didn’t, if you went before a jury in The Bronx in the 1990s, you didn’t have much of a chance. The DA had a huge advantage, and that advantage was that people were on the side of the DA. It was not a Black Lives Matter moment; it was a moment where Giuliani rolled tanks into the streets. People forget, the city was under siege. I don’t think [prosecutors] felt they had as high a burden of proof as they must feel now.

TCR: There were times during the podcast that you said either prosecutors or detectives intentionally neglected to investigate.

Fishman: I do think that there were times that… I want to choose my words very carefully here. I guess I can’t really use the word conspiracy, but listen— the main witness against Cal absolutely and definitively lied on the stand. And he lied on the stand in two regards: one is that he denied being involved in an attempt to murder Cal, and two, he lied in saying that Cal did it.

Dwight, the main witness, admitted to me that he lied about both of those things. And I really grilled him on the first one. Dwight had actually tried to murder Cal. And the fact that the chief witness against Cal had previously tried to murder him— that really seems like it would be an important fact for the jury to consider. Dwight was asked on the stand, did you have anything to do with the attempted murder of Cal, and he says no. But subsequently Dwight narrated for me how he tried to kill Cal– and so did the chief investigator for The Bronx DA! I asked Dwight, if he was surprised they let him get away with it, and he said no— that’s how the game is played. If you play by the rules, you’re always going to lose.

For me that was actually the most chilling moment in the whole walk through the criminal justice system. Because here you had the insider, the guy who really organized the prosecution, who was the chief witness. And basically he was not only saying that he lied, but he was basically saying that the system worked by allowing witnesses to lie. And I think one of the things the podcast does is really let you know how the system works.

Victoria Mckenzie is Deputy Editor (Content) for The Crime Report. She welcomes comments from readers.

from https://thecrimereport.org

15 Convictions Linked to Corrupt Chicago Cop Are Vacated

The cases were linked to former police Sgt. Ronald Watts, who was sent to federal prison in 2013 for stealing money from a drug courier who was an FBI informant. A defense attorney says 400 more convictions deserve scrutiny.

In what is believed to be the first mass exoneration in Cook County history, prosecutors on Thursday plan to drop all charges against 15 men who alleged they were framed by corrupt former Chicago police Sgt. Ronald Watts and his crew, reports the Chicago Tribune. The announcement to vacate the convictions was expected during a morning hearing before Chief Criminal Court Judge LeRoy Martin Jr., according to a statement from Cook County State’s Attorney Kim Foxx’s office. It comes two months after lawyers for the 15 men filed a joint petition seeking to overturn a total of 18 criminal drug convictions, alleging that Watts and his crew framed all of them between 2003 and 2008. Watts and an officer under his command were sent to federal prison in 2013 for stealing money from a drug courier who’d been working as an FBI informant.

A review of the cases by the state’s attorney’s Conviction Integrity Unit “has shown a pattern of narcotics arrests that raise serious concerns about the validity of the resulting convictions,” a spokesman for Foxx said in a written statement. Joshua Tepfer, the lead attorney for the 15 men, praised the “unprecedented” action by Foxx’s office but said the cases were “the tip of the iceberg” when it comes to cases tainted by Watts. He cited the more than 400 convictions by Watts’ team “that are unaccounted for.” Since last year, the Tribune has published several stories detailing Watts’ decade-long run of corruption.

from https://thecrimereport.org

Blind Injustice: How ‘Tunnel Vision’ Convicts the Innocent

Roger Dean Gillispie was found guilty of rape, even though he didn’t match eyewitness descriptions, and the evidence made clear he was nowhere near the scene of the crime. He spent more than 20 years behind bars until the Ohio Supreme Court this year gave him back his freedom. The director of the Ohio Innocence Project, who worked on his case ,tells the story.

In 1991, soon after he was sentenced to 56 years in an Ohio prison for a crime he did not commit, Roger Dean Gillispie began pestering fellow inmates to save the tinfoil from their tobacco pouches. He also gathered discarded teabags and cassette tapes—anything he could get his hands on to serve as makeshift building materials.

Then each evening, after he returned to his cell from one of his prison jobs, he devoted countless hours to creating a model of a shiny, vintage Airstream camper. It was, for him, a symbol of freedom—of the day when he would prove his innocence, leave prison behind, and see the country in just such a camper.

“Art was my daily escape,” Dean recalled. “It allowed me to live in the world that I was creating. The prison was short one inmate because, in my mind, I wasn’t there.”

Gillispie’s model of his dream camper, built in prison. Photo by Ryan Kurtz

“I was seeing the country in that little Airstream camper.”

Dean was a popular, all-American 25-year-old with a clean record and bright future in 1990, when he was plucked from the obscurity of his job as a security guard at a General Motors plant and arrested. A disgruntled co-worker had fingered him as a suspect in a string of three unsolved rapes near Dayton, Ohio.

Unfortunately for Dean, his co-worker also was a friend of the detective in charge of the investigation.

The detective, it later became apparent, put Dean in his crosshairs and developed a serious case of tunnel vision. It would cost Dean the next two decades of his life.

The human tendency toward tunnel vision is perhaps the leading cause of wrongful convictions. It occurs when an investigator develops an initial belief or suspicion which then becomes so embedded that all information encountered is interpreted or twisted to confirm that belief.

It’s a common human tendency that arises in a variety of situations in our lives. As I wrote in my recent book, Blind Injustice:

Tunnel vision served an important purpose in bygone eras. 

…Evolution favored quick decisions and the ability to ignore distractions while remaining wedded to the most obvious option. As a result, our brains innately engage in what are called “heuristics”—hardwired mental shortcuts that help us to make decisions quickly—jumping to conclusions, one could even say, without getting bogged down in too many distracting details. 

 But psychologists have realized that while heuristics were necessary in past eras, and can be helpful in many aspects of life today, they can sometimes lead to disastrous results in our complex world. And in the criminal justice system, our innate psychological instincts can cause serious problems if we’re not aware of them and don’t try to keep them in check.

An Unlikely Suspect

Dean was an unlikely suspect.

He did not match the physical description of the rapist that the victims had given after the assaults, which occurred in August 1988. For example, the rapist had a dark tan and reddish brown hair; Dean is so pale he burns instead of tans, and has had graying hair since the ninth grade.

Yet the detective got all three victims to identify Dean as their attacker by presenting him in a six-person photo lineup that was ridiculously suggestive.

Dean’s photo “was all but circled and starred,” a local newspaper later noted. Dean’s photo had a yellow background, while the other five were blue. Dean’s had a matte finish; the others were glossy. The victims described the rapist as having a wide face; Dean’s photo was a close-up, so that his face took up the entire frame, while the other five photos depicted the individuals from the chest up.

By the time the three victims chose Dean’s photo from the lineup, nearly two years had passed since the rapes. Memory experts universally agree that identifications made this long after the crime are unreliable, particularly when obtained by a detective with tunnel vision, who uses suggestive techniques to get the identification he wanted.

The detective also improperly manipulated the victims by saying that Dean was their attacker and falsely telling them that he might look different in court because he had colored his hair to trick them. The detective attempted to influence other witnesses by lying about Dean’s past to help convince them he was guilty.

At trial, Dean and numerous witnesses testified that he was camping and boating out in Kentucky at the time of the crimes. Initially, the jury split 8-4 in favor of acquittal, but following pressure from the judge to reach a resolution, the jury ultimately returned a guilty verdict.

Dean was sentenced to 22 to 56 years in prison.

Prison is bad enough for anyone, but for someone who is innocent, it’s a living hell.

“I had life by the horns before this happened,” Dean says now.

He spent his 20’s, 30’s and most of his 40’s in a seven foot -by-nine-foot cell, while his friends went on to great successes in their careers, got married and had families.

“All I could do was watch in misery at what could have been for me,” he later recalled.

But Dean did not give up. He “screamed and hollered” about his innocence for years until he caught the attention of a TV news reporter in Cincinnati, Laure Quinlivan, who aired a series of reports exposing the many flaws in the detective’s investigation.

Two Discoveries

In 2003, the Ohio Innocence Project (OIP) at the University of Cincinnati College of Law, which I co-founded and direct, took the case. We made two important discoveries.

First, Dean’s work-place enemy had tried to implicate Dean shortly after the rapes when two more-experienced detectives were in charge of the case, but those detectives quickly eliminated him as a suspect. They wrote a report outlining their reasons, including that Dean couldn’t fit into the pants worn by the rapist (one of the victims had seen the size on a tag inside the rapists’ pants).

There were other discrepancies as well and so they officially eliminated Dean as a suspect and moved on.

Subsequently, the two detectives retired, and both moved out of state; the case still unsolved. That’s when the detective who was a friend of Dean’s work-place enemy took over the case and the reports documenting the elimination of Dean as a suspect disappeared from the police file.

And so, at trial, Dean and his attorney—and more importantly, the jury—did not know Dean had been cleared.

Second, the re-investigation also identified the likely rapist as a man who lived in the Dayton area and who posed as an undercover police officer, flashed a badge, accused the women of shoplifting, then abducted and sexually assaulted them.

In 2011, based on this evidence, Dean’s convictions were vacated in both federal and state courts. After 20 years in prison, Dean was released.

But he was not completely free. The prosecutors refused to admit that they had made a mistake. Rather than investigate the alternate suspect or the detective’s misconduct, they appealed in an attempt send him back to prison.

The tunnel vision that had so infected the police investigation had similarly poisoned the prosecution—an unfortunately common phenomenon in wrongful conviction cases. The result is that police and prosecutors become so fixated on a suspect that when evidence of innocence surfaces years later, denial sets in and the new evidence is not reviewed objectively, but rather through their twisted prism.

In Blind Injustice, I wrote at length about the psychological factors that cause prosecutors to move into a state of denial in post-conviction innocence cases rather than face the facts.

These include cognitive dissonance, bureaucratic evil (“groupthink” mentalities where the goals of the institution—the prosecutor’s office—replace the conscience of the individual actors) and the engrained dehumanization of criminal defendants that occurs in prosecutors’ offices.

The real “soulshine’ camper, ready for the open road. Photo by Pam Sidley

But justice finally prevailed on July 26, 2017—six years after Dean’s release—when the Ohio Supreme Court denied the prosecution’s last appeal. Dean’s exoneration was complete.

One week earlier, Dean completed his makeover of his real 1963 Airstream camper that he had purchased for next to nothing after his release. During the six years the prosecutors spent appealing, Dean spent month after month fixing it up with the same investment of emotional and physical devotion as he had put into the model camper in prison.

‘Soulshine’

He named the camper “Soulshine,” after an Allman Brothers song he listened to on headphones the many nights he worked in his cell on his beloved model.

When you can’t find the light that guides you in the cloudy days,

When the stars ain’t shining bright and you feel like you’ve lost your way,

When those candle lights of home burn so very far away,

Well, you’ve got to let your soul shine.

Dean does not blame the victims.

Mark Godsey

Mark Godsey. Photo by Ryan Kurtz

He thinks they were violated twice — once by the rapist and then by the criminal justice system. Although Dean has sued the officials responsible for unjustly taking away his freedom, he is moving on with his life.

Soon he will take his camper and head out to see the places he dreamed about in his tiny prison cell. Wherever he goes, the model camper he made so many years ago will be with him—a reminder to always let his soul shine.

Mark Godsey is a professor of law at the University of Cincinnati and co-founder of the Ohio Innocence Project. He began representing Dean Gillispie in 2003. Dean’s story, as well as the psychological concepts of tunnel vision and innocence denial, are chronicled in Godsey’s new book “Blind Injustice.” Readers’ comments are welcome.

from https://thecrimereport.org

How Appeals Courts ‘Rubber Stamp’ Injustice

Although appellate courts can’t know whether a defendant is actually innocent, they can—or should—know when a trial is unfair. Unfortunately, says a New York attorney who writes under the pseudonym “Appellate Squawk,” most are simply rubber stamps for miscarriages of justice in lower courts.

It’s always good news when an innocent person is exonerated. But how many wrongful convictions that come to light would have been reversed years earlier if appellate courts had done their job?

The public hears about miscarriages of justice caused by lying witnesses, prosecutors hiding evidence favorable to the accused, forensic expert testimony based on hooey. But few people besides appellate lawyers and their clients know that there’s another leading cause: a system of appellate review that is often so biased and perfunctory that it might as well be called “appellate rubber-stamp.”

For example, Yusuf Salaam, one of the Central Park Five, was convicted based on his confession in the highly publicized case of the 1989 assault and rape of a jogger. All five were exonerated decades later when the real perpetrator came forward.

Illustration by Appellate Squawk

But New York’s Court of Appeals should have reversed Salaam’s conviction at the time. Even the abbreviated facts recited in its 1993 decision show that his confession was involuntary and should have been thrown out.

As the dissenting judge argued, the police had isolated this 15-year old from his family, falsely told him that his fingerprints were on the jogger’s pants and suggested that he’d be released if he admitted to participating in the attack. Any court conscientiously following the law would have suppressed a confession obtained by such coercive tactics.

But the majority, in a rather testy opinion, ignored the facts and concluded that Salaam “chose” to implicate himself.

Another example is Martin Tankleff, a 17-year old convicted of murdering his parents. In denying his appeal, the court saw nothing coercive about the detective’s extorting his confession by falsely telling him that his father had regained consciousness and identified him as the attacker.

Rather, the court inexplicably concluded that the confession was all the more reliable for having been induced by a trick.

The court also saw nothing unconstitutional about eliciting the confession without Miranda warnings, asserting that Tankleff was “clearly” not in custody and therefore not entitled to them. The lone dissenting judge reminded the majority that it had overlooked a few facts: the police had isolated this teenager from his family and subjected him to hours of accusatory questioning.

Thus, he clearly was in custody so that his statements were involuntary and should have been suppressed.

Salaam and Tankleff were able to prove their innocence after many years in prison—an extremely rare occurrence. What’s not so rare is the way the appellate courts ignored the facts and the law.

Why should this be?

You’d think courts would examine appeals with the care of a mechanic inspecting an airplane before takeoff, of a doctor reading an X-ray. “We must be deeply mindful of the dire consequences of a criminal conviction,” the judges would exhort one another. “So we’d darn well better scrutinize each appeal carefully.”

But that’s not the spirit they bring to appellate review, at least not in criminal cases. Criminal appeals are handled by a battery of anonymous clerks who are apparently given to understand that their job is to uphold the conviction by any means necessary.

They write memos for the judges that are mostly if not entirely based on the prosecution brief. They draft the decisions affirming the conviction.

Only once in a blue moon is any error considered prejudicial enough to warrant a reversal, even if all that means is a new trial. Did the prosecutor tell the jury she wouldn’t be prosecuting the defendant unless she knew he was guilty? “Did not exceed the permissible bounds of rhetorical comment,” the court will conclude.

Was the defense lawyer a potted plant? “We cannot say he was not pursuing a reasonable strategy.”

Did the judge conduct the trial with the defendant involuntarily absent? “We find no constitutional violation under the [unstated] circumstances.”

As Dave Barry would say, we’re not making this up.

Why should appellate review be such a contradiction in terms? Maybe because reversing a criminal conviction is unpopular. “Three judges overturn 12 jurors!” howled New York Times columnist Jim Dwyer when former New York State Assembly Speaker Sheldon Silver’s conviction was recently reversed.

No judge wants to be howled at. But a jury verdict is only as fair as the trial.

It would be interesting to go back and examine the rejected appeals in every exoneration case. Chances are, most of those trials were infected with prejudicial errors. Although appellate courts can’t know whether a defendant is actually innocent, they can—or should—know when a trial is unfair.

Unless appellate review becomes more meaningful, miscarriages of justice will continue to be an intrinsic part of the criminal justice system.

Appellate Squawk is the pseudonym of an appellate attorney in New York City, and the author of a satirical legal blog of that name. Readers’ comments are welcomed.

from https://thecrimereport.org

When New Research Proves Courtroom ‘Experts’ Wrong

Many wrongful convictions are based on forensic testimony based on science later exposed as flawed. A California statute this year laid out the terms for granting relief to defendants challenging ‘expert’ evidence—but striking the right balance between evolving scientific research and trial pressures remains a challenge, says a UC law professor.

The advent of nuclear DNA typing was a watershed in criminal justice. It has helped to convict the guilty, while also permitting the exoneration of wrongfully convicted individuals—more than 300, according to a 2014 study[i].

In its 2009 report, the National Research Council declared that nuclear DNA typing is the only “forensic method [that] has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

But the exonerations have raised questions about why those wrongful convictions occurred in the first place. In many of them, the conviction rested in part on expert testimony that later scientific research exposed as flawed. In one study of 156 DNA exonerations, overstated expert testimony was presented at 60% of the trials.

These developments have prompted state legislatures to amend their post-conviction statutes to grant relief to defendants convicted on the basis of subsequently invalidated expert testimony.

While there is a growing consensus that there should be relief in some circumstances, articulating the circumstances in statutory language is challenging.

A California statute which came into effect this year appears to grant relief whenever the expert later “repudiate[s]” her opinion” without an express requirement that the expert specify a basis for the repudiation.

A 2015 Texas statute seems to grant relief only when new research flatly “contradicts” prior expert testimony. In the final analysis, these statutes must balance two fundamental interests: our abhorrence of wrongful convictions, and the finality of convictions that represent a substantial investment of time and resources.

How should that balance be struck? Consider three examples:

Bullet “Matching”

In some cases, later analysis almost completely discredits prior testimony. The FBI once employed Comparative Bullet Lead Analysis (CBLA). When the police recover an intact crime scene bullet, an expert can compare its striations to those on bullets fired from the defendant’s weapon.

However, when the crime scene bullet was too deformed, the FBI previously resorted to CBLA, analyzing seven elements in the crime scene bullet and bullets recovered from the defendant’s possession.

An expert often relied on CBLA as a basis for opining that the bullets came from the same batch (a single day’s manufacturing production) or the same box from the defendant’s possession. 

But CBLA critics pointed out that even the limited testimony about a batch is valid only if each batch is unique and uniform. Later analyses of bullet-manufacturer data indicated that neither assumption was true. A 2004 National Research Council report endorsed that criticism, and the FBI discontinued the use of CBLA.

Situations involving the use of CBLA are rare. 

 It is unrealistic to demand conclusive proof of the invalidity of a scientific technique or theory.

In its 1993 Daubert decision, the Supreme Court remarked that “arguably, there are no certainties in science.”

The most important aspect of the Daubert decision is its frank acknowledgment of the limits of the scientific enterprise. A requirement that the prior expert testimony be utterly discredited will deny relief to most defendants convicted on the basis of flawed expert testimony.

Shaken Baby Syndrome

 However, it is not enough for the defense to show that post trial, a competing school of thought emerged. Shaken baby syndrome (SBS) is a case in point.

There was formerly a consensus, especially among pediatricians and pathologists, that violently shaking an infant can cause fatal brain injury. In many cases, the autopsy revealed such injuries, a caregiver acknowledged shaking the child, but there was no evidence that the child’s head had struck a surface or object.

Later, biomechanical experts conducted experiments with primates and anthropomorphic models of infant necks. The experiments suggested that shaking alone cannot generate enough force to cause fatal brain injury.

Nevertheless, in 2016 the Ninth Circuit Court of Appeals ruled that the biomechanical research had not invalidated the SBS theory to the extent that a defendant convicted on the basis of SBS was entitled to relief. In the court’s words, although the new research had prompted “a vigorous debate” over SBS, the research did not discredit SBS to the same extent that CBLA has been exposed.

There are doubts about whether the biomechanical findings can be extrapolated to human infants. And further research is complicated by the fact that medical ethics precludes subjecting infants to violent shaking to test the premise.

In the official Note accompanying the 2000 amendment to Federal Evidence Rule 702, the Advisory Committee stated that if proponents of two “competing scientific theories” can each satisfy 702’s reliability threshold, the judge should allow both to testify. In other words, the advent of a competing theory does not automatically invalidate a prior theory or mandate a new trial.

Hair Analysis

 In the previous example, the emergence of a new theory merely raises doubts about the prior theory. But in some cases, new scientific research seriously undermines the theory.

An example is microscopic analysis of hair. Although trace evidence experts have recently given more circumscribed testimony, in the past they frequently went to the brink of opining that two hairs came from the same person because the hairs were “microscopically indistinguishable.”

In an FBI study of 268 microscopic hair analysis cases, reviewers found that prosecution experts had overstated at 96% of the trials. Another FBI study compared microscopic hair analysis opinions with mtDNA test results. In 11% of the cases in which the analysts opined that the defendant was a possible source of the two “microscopically indistinguishable” hair samples, the DNA established that the defendant was not the source.

One jury decided to convict after an expert testified that “it’s my experience in 10 years [that] it’s extremely rare I will have known hair samples from two different people I can’t tell apart.” In 2016, a Massachusetts Superior Court granted a new trial because the mtDNA research had gravely undermined confidence in microscopic hair analysis.

To gain post-conviction relief, a defendant ought to be required to demonstrate more than the emergence of a new school of thought. Moreover, even when the new scientific research is at odds with prior testimony, the defendant must show that the expert testimony played a major role in securing the conviction.

We must balance the competing interests.

A defendant should not receive a new trial simply because a new school of thought has emerged. Yet we cannot be illiberal and revise post-conviction relief statutes to grant new trials only when later research “certainly” debunks the prior testimony.

The standard ought to be whether new scientific insights seriously undermine our confidence in testimony that prompted an earlier conviction.

Edward Imwinkelried

That standard is the best test for identifying and correcting convictions that are miscarriages of justice.

Edward Imwinkelried is the Edward L. Barrett, Jr. Professor of Law Emeritus at the University of California, Davis. He is a co-author of Giannelli, Imwinkelried, Roth & Campbell Moriarty, “Scientific Evidence” (5th ed. 2012) and author of the “Methods of Attacking Scientific Evidence” (5th ed. 2014). He welcomes readers’ comments.

 [i] Beldock, Feldman & Steel, The Death of the “Hurricane” and the Criminal Justice System’s Failures, NAT’L L.J., Apr. 28, 2014, at 47.

from https://thecrimereport.org

When Prosecutors Ignore the Constitution

Judges in New York have been urged to formally remind prosecutors of their obligation to turn over evidence that might exonerate defendants before a trial— or face contempt charges. It’s a step long advocated by reform advocates like the Innocence Project—will other states follow suit?

Michael Morton was exonerated in 2011 after spending more than 24 years in prison for murdering his wife, Christine, in their Texas home. She was bludgeoned to death after he left for work one summer day in 1986, and found in their bed.

The evidence which eventually exonerated him— a bloody bandanna with another man’s DNA on it—was not the only thing that pointed to another culprit, according to the Innocence Project.

Morton’s young son, who was present during the murder, had also said that a “monster”— not his father—carried out the crime, and police investigating the murder were told by a neighbor about a man parked in a green van behind the Morton house. There was also evidence indicating that someone had possibly tried to use Ms. Morton’s credit in a jewelry store.

The trial judge in the case, at the request of the defense, had ordered the prosecutor to turn over all reports by the case’s lead investigator, who was not called as a witness. The prosecutor did not comply. That refusal earned him a five-day jail term years afterward.  By then, the prosecutor, Ken Anderson—named by the State Bar of Texas as “Prosecutor of the Year” in 1995—was a judge.  The case led to a wave of criminal justice reforms in the state.

And it was one of many similar ones around the country that have led to a rethink of trial procedures.

Last month, New York State Chief Judge Janet DiFiore threw her support behind a recommendation by the New York State Justice Task Force, urging judges to issue similar orders reminding prosecutors of their obligations to turn over evidence at the outset of all criminal trials.

DiFiore called it a “groundbreaking” recommendation. And advocates of court reform hope it paves the way for similar procedural changes in other states as well.

“Will this decrease wrongful convictions? Absolutely,” Innocence Project Co-Director Barry check, told The Crime Report.

The Innocence Project was among the groups that lobbied for the recommendation, with the Morton case in mind.

The model order drawn up by the Justice Task Force reminds prosecutors of both their Constitutional and ethical obligations. Noting that “the district attorney and the assistant responsible for [a] case have a duty to learn of such favorable information that is known to others acting on the government’s behalf in the case, including the police,” it recommends that they  “confer with investigative and prosecutorial personnel” and review “files directly related to the prosecution or investigation of this case.”

It also spells out what “timely” means: No later than 30 days before the start of a felony trial, and 15 days prior to a misdemeanor trial. And it specifies what the disclosed information should include: benefits and promises made to witnesses for their cooperation, prior inconsistent statements and uncharged criminal conduct or convictions, and information regarding a witness’s mental or physical illness or substance abuse.

Scheck said the power of the recommendation comes from two of its aspects.

First, it will ensure that investigatory files other than the prosecutor’s files are searched for favorable information, making it a “prophylactic rule that will prevent Brady violations.”

Second, the fact that these reminders come as orders means that prosecutors who willfully violate them can be held in contempt, which will change the culture around disclosure.

Scheck called it “a cognitive science problem,” in which having judges talk about what should be disclosed before trial will lead attorneys to think more closely about it.

As for consequences faced by prosecutors who fail to turn over information, he said, “We’re only interested in people who the court ultimately believes are deliberately breaking the rules, and I don’t think there’s that many of them.”

That’s one reason why Barry Pollack, President of the National Association of Criminal Defense Lawyers, says the recommendation could be stronger.

Although he conceded that the order would offer a sanction with “real teeth,” he pointed out that the punishment would only apply to a small number of cases.

“I think that the proposed order is geared toward intentional violations,” he said. “But I think that intentional violations, while they occur, are exceptions, not the rule.”

Pollack also believes the order should be mandatory.

Even in its present form however, the recommendation could have an impact on prosecutorial behavior, said Pollack.

It underlines that that prosecutors should not be asking themselves, pretrial, “what’s the most I can fail to turn over and not get reversed on appeal,” but rather, what information points to innocence.

“I think other states will most definitely take notice and you could well see other states following New York’s lead,” Pollack said.  “I think that is a good thing and a healthy thing. I just don’t think it goes far enough.”

Bill Fitzpatrick, Onondaga County (NY) District Attorney and Chairman of the Board for the National District Attorneys Association, said his organization does not oppose the adopted recommendation, but believes it is “superfluous.”

Kate Pastor is a Bronx, NY-based freelance journalist. She welcomes comments from readers.

 

 

 

 

from http://thecrimereport.org