To Be A Free Man in Tarrytown

I live in Tarrytown now, a free man, and my life has taken turns I never would have dreamed possible.

I was wrongfully convicted in 1990 of a murder and rape in Peekskill. DNA taken from semen found in the victim did not match my DNA. However, misconduct from every part of the criminal justice system contributed to my 16 years of life in prison. That misconduct included a coerced, false confession when I was 16, extracted after many days of interrogation overseen by current Peekskill Police Chief Eugene Tumulo and others, as well as the falsification of other evidence.

Most people think that only a guilty person would confess. But I can tell you that scare tactics, threats of violence, food deprivation, being lied to regarding lie detector results and being told that you can go home afterward if you cooperate have produced many false confessions. Of the 209 exonerations based on DNA testing, false confessions led to 25 percent of the original convictions.

"Maybe you are innocent," Judge Nicholas Collabella said just before giving me a 15 year- to life sentence. Former District Attorney Jeanine Pirro successfully opposed all of my appeals and even blocked several attempts to get more DNA testing.

My fortune turned in 2006, when The Innocence Project took my case. With the cooperation of District Attorney Janet DiFiore, further DNA testing proved who was the real perpetrator. On Nov. 2, 2006 all charges were dismissed and I was publicly acknowledged as innocent. I received some apologies but none were from those who were involved in wrongfully convicting me.

My first 14 months of freedom have been much more turbulent than happy. Successes include completing my B.A. requirements from Mercy College, which gave me a scholarship, and taking the LSAT for admission to law school.

I am not angry. Instead I channel my energy into raising awareness about the problem of wrongful convictions, and the danger that the death penalty poses in executing innocent people.

I give presentations about wrongful convictions at colleges, high schools, churches and orga­nizations throughout New York and other states. I publish articles in The Westchester Guardian, and I give television, radio and newspaper interviews. I testify at hearings, and I lobby lawmakers in Albany to enact reforms to protect the innocent and make the system more reliable. As an additional tool for encouraging lawmakers to enact changes, I collect signatures for an online petition on my Web site.

Readjusting to being free, dealing with the effects of my ordeal, learning new technology and experiencing financial pressure have all been hard. I was released with nothing. The litigation I am pursuing will take between two to seven years, with the state trying not to give me anything. I make some money doing lectures but I never know when the next one will be.

I've been unable to break in socially. My actual age is 34 but at heart I am 25 and would like people with whom to socialize and do athletic/energy-based activities. Instead I am by myself most of the time. Few in the right age group have reached out.

I came to live in Tarrytown because of both the past and present. There is a feeling of energy and excitement in this village, and I imagine that it could be quite fun here. As I walk through town, I am keenly aware that my grandmother, who passed away during my incarceration, once walked these streets. She lived on South Washington, where I lived with her briefly. Secretly I wish that I could see the inside of that home again. However, in this age of crime and suspicion, I'm sure that the owners would never allow it.

Could what happen to me happen to you or someone you love? You be the judge: I had never been arrested before, my friends weren't involved in crime, I was not a high school dropout. A wrongful conviction can happen to your son, your daughter, even you. A misidentification, a car resembling one used in a crime, a coerced false confession, junk science, desperate prisoners falsely incriminating others in order to get time off their sentence: it need only take one of these things.

Learn and talk about wrongful convictions. Ask your school, church or organization to invite me to do a presentation. Sign my online petition. Contact your senators, congressmen and assemblymen and tell them to enact reforms. Don't wait until you are personally affected.

And if you see me around town, say "Hi."

[Editor's note: Jeffrey Mark Deskovic, a resident of Tarrytown, New York, is a criminal justice advocate, professional speaker and exoneree who graduated in December, 2007, with a bachelor's degree from Mercy College. Visit his website at http://jeffreydeskovicspeaks.org/. This is his first blog for the NCCJR. This article originally appeared in The Hudson Independent.]

Sometimes exceptions are the rule.

The Bill of Rights was not enacted to protect the citizenry from overzealous defense lawyers. What a concept. The framers of the constitution were seeking to make sure the people had protection from the agents of the government or, for the purposes of this blog, protection from the police.

This should not come as any great shock to students of history. The American Revolution was fought and won by a bunch of people who were pretty pissed off about the government of England telling them what they could and could not do.

One of the things the framers wanted to do was to prohibit the police from searching a person's home whenever they felt like it. The result was the 4th Amendment to the U.S. Constitution. That amendment prohibits general warrants and requires that to get a search warrant police have to apply to neutral magistrate (judge) and demonstrate that the search is not unreasonable. The Amendment states that "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." At the core of the 4th amendment is the notion that a person should be able to retreat into his own home without fear of unreasonable governmental intrusion. Sounds pretty straightforward, right? Well courts have been squabbling for over 200 years as to what it means. Add to this, that states have their own constitutions that deal with search and seizure and you have more interpretations of search and seizure law than you can imagine. Remember, this started in 1791. One of the questions, then, is whether or not the search in question was "reasonable?"

How did this come to pass, all of this so-called judicial interpretation? There are too many reasons to list and I don't know them all anyway. One reason, however, has to do with technology. All kinds of things that we take for granted today were not even pipe dreams in the late 1700's, e.g., airplanes, telephones, GPS devices, computers and thermal imaging devices. Okay, not thermal imaging devices-I just wanted to see if you were paying attention.

A few examples if you please. I bet you think when you are talking on the phone that your conversations are private. Well, they are, right up until the time an eavesdropping warrant goes into effect which authorizes the police to "seize" certain conversations. If the police can convince a judge that your phone is being used to conduct criminal business your conversations are going to be seized. Those of you who saw the film "Goodfellas" may remember in the beginning of the film the narrator tells us that "Pauly never talked on the phone." Pauly had a reason for this.

For those of you who grow certain things in your backyard and build a 10 foot fence around the yard to keep prying eyes at bay, I have 2 words for you. Airplanes. Overflights.

For those of us that love to tell the world everything that is going on in our lives on the internet I have a question for you? Do you really, really think all those things you say are private? You cannot be serious if you answered yes to that question. You may not care that what you say is not private. It is just a good idea to realize that it is not.

There is a statewide organization of criminal defense lawyers who have a listserve for members where they can discuss issues, vent or otherwise communicate with other members. Despite repeated warnngs that the listserve was not a "secure environment" lawyers, being what they are, like to shoot their mouths off. I am one so I can say that stuff. To make a long story short, one of the members was arrested and the US Attorney's Office became very interested in some of the things he said on the listserve. Once these items went into cyberspace they were not private.

I could go on about GPS and thermal imaging devices but I think you get the point. Yes, there are certain laws in place to protect us from governmental intrusion. Just be sure that you understand there are exceptions and the the question that looms is: Is there a reasonable expectation of privacy.

As Michael Conrad used to say at the end of roll call on Hill Street Blues - Be careful out there.

Sen. Schumer Says He "Sees" The Problem with Prison Overcrowding (He Has No Clue How To Fix It)

A few months ago NY Senator Chuck Schumer visited the Federal Correctional Institute at Otisville NY and used the overcrowding problem that he saw as a "photo op." It may be clear that Schumer saw the problem but what is equally clear is that he, like so many of his colleagues, was more interested in the symbolism than in the substance and completely missed the solution. Typically, his response was "let's throw some more money at it." That might be a good deal for the unions and corrections employees, but that solution won't hold water in the long term and Schumer knows it.

Matt Kelly in a post at Change.org said: "Throwing money at our always-expanding prison population won't make it go away and it won't address the systemic problems under which the system is sagging." Matt went on to say, "He knows there are many among the 205,000 federal prisoners in the U.S. who have served too much time already for nonviolent offenses."

The crowding problem at FCI Otisville is typical of many other prisons all across the country. Otisville was built for 844 prisoners and at the time of the Senators visit held 1,205.

I would like suggest to Senator Schumer, and the rest of his colleagues in the Senate and in the House of Representatives, several ways that prison overcrowding may be corrected without additional cost to the taxpayers:

1-Immediately pass out of committee and sign into law H.R. 1529 the "Second Chance for Ex-Offenders Act of 2009" which will allow first time non-violent offenders to make application before the court to have their record expunged. By giving these ex-offenders a real "second chance" the recidivism rate will be greatly reduced resulting in a reduction of prison population and cost to the taxpayer. This legislation is the most important currently pending, as it will immediately allow thousands to seek relief thus allowing them to seek and gain meaningful employment.

2- Immediately pass out of committee and sign into law H.R. 1475 which will re-instate the good-time allowances for federal prisoners. Federal prisoners can currently earn a maximum of 47 days per year, the bill (which was introduced in the House in March) would expand that to as many as 120.

3- Immediately re-instate federal parole. Result, reduced prison population, reduced cost to taxpayer.

It may be possible to derive even greater benefit if H.R.1529, H.R.1475 and reinstatement of parole were combined into one bill. Certainly time and money would be saved by Congress only having to pass one piece of legislation rather than three.

4- Immediately correct the wording of the "Second Chance Act of 2007" (P.L. 110-199), signed into law April 9, 2008, by President Bush. The law "allows" the BOP to consider placing offenders in a halfway house for up to 12 months. Any rational person would consider this an opportunity to help offenders transition back to society and remove them from the prison population thus reducing overcrowding and taxpayer expense. BOP has elected to completely reject this option. The wording of the bill should be changed from "may" consider release, to "shall" consider release to a halfway house for 12 months or, if halfway house transition is considered un-necessary, as in the case of a person who has family support, requires no substance abuse or other treatment and has reasonable expectations of employment, to home confinement.

5-Immediately pass Sen. Webb's proposed legislation to initiate a study which will result in recommendations for a complete overhaul our judicial system but start with existing completed studies like "Smart on Crime: Recommendations for the Next Administration and Congress" by the 2009 Criminal Justice Coalition, in order to speed the process. Senator Schumer you are co-sponsor so what are you waiting for?

I submit that the answers and solutions to Criminal Justice Reform are not as hard as you and your colleagues would have the American people believe. I have just given you five ways to reduce the prison population and reduce the taxpayer’s burden in doing so while you can only recommend spending more of our money. "We The People" want you to start looking for reasonable, compassionate, cost effective solutions to our problems and stop throwing our money away on hearings and studies that produce no results and programs that do not work.

Is Texas Ready to Execute Another Innocent?

Tomorrow, October 27, 2009, Reginald Blanton is scheduled to be executed. He was convicted based upon coerced statements subsequently recanted at trial, a trial where the prosecution struck all African-Americans from the jury. No physical evidence connected Blanton to the crime. In fact, a footprint thought to be that of the perpetrator didn't match Blanton's.

A full account of the case can be read here.

In Texas, and around the nation, people have rallied urging Governor Rick Perry to delay the execution, to fully consider the shortcomings of the investigation and trial that led to Blanton's conviction, to avoid the possibility--even the likelihood--of a rerun of the Willingham case, where evidence that Texas executed an innocent man is overwhelming.

His mother Anna Blanton gave an impassioned plea to a large crowd at the 10th annual Abolish the Death Penalty March in Austin, Texas, where she pleaded that Governor Rick Perry be held accountable. Here's a video of her address:



Rick Perry's phone number is 512-463-2000. Call him up and urge him to save Reggie Blanton.

True Stories of False Confessions

In a recent piece on Huffington Post, I discussed Rob Warden and Steve Drizin's new book, True Stories of False Confessions.

What makes this book so compelling is that it's not simply an academic exploration of false confessions. Instead, it's a collection of articles from the best writers around, from John Grisham to Alex Kotlowitz, detailing real false confession cases.

It's extremely important to have narrative accounts of these kinds of cases because false confessions are profoundly counterintuitive--after all, why would anyone act so radically against his or her own self-interest by confessing to a crime he or she didn't commit? A good writer can explain not only that false confessions are disturbingly common, but also why and how they happen.

Once you read a few of cases from True Stories of False Confessions, you'll see that our criminal justice interrogation system is broken and in desperate need of reform.

At the end of their book, Warden and Drizin propose a handful of critical policy changes that they believe would greatly reduce false confessions.

As I concluded my Huffington Post piece, I'd argue that "just as important as any particular policy reform is the need to change the mindset of ordinary citizens, who may be selected as jury members to decide the next false confession case.

Despite what we see on television or even what our intuition may tell us, 'a confession is just a piece of evidence like any other evidence,' said Drizin in a recent interview. 'It's only as valuable as the other evidence that corroborates it. View it with suspicion. That's what we hope to happen here. Because the system breaks down when there's a confession, and it shouldn't.'"

If you want to learn more about false confessions, check out this recent podcast of Innocence Speaks that features Warden and Drizin talking about their new book.

Should false accusers be prosecuted?

It should be self-evident that there is a strong relationship between false allegations and wrongful convictions. As I have a fine grasp of the obvious I can say, without reservation, that any conviction resting on a false allegation is wrongful. This is neither a new nor brilliant thought. So shouldn't there then be a disincentive for a person to falsely report a crime? A recent case in Nassau County on Long Island in New York provides a good model to study this issue.

An 18 year old female student at Hofstra University reported being gang raped by 5 men in a rest room on on the campus. This report triggered a very fast response by the Nassau County Police Department and 4 men, one a Hofstra student as well, were arrested while the 5th man was being actively sought by the NCPD. Notice that I did not say the report triggered a very fast investigation.

The 4 arrested men, whose names were plastered all over newspapers, were arraigned and the Office of the Nassau County DA, no doubt wanting to show how tough they are with an election only weeks away, sought ridiculously high bail. It should be pointed out that none of the arrestees had a prior criminal record. The judge, making sure that no one would accuse him of being soft on crime, granted the prosecutor's bail request. If memory serves me bail was set at $500,000 on each defendant, an amount that was not going to be made. The top charge for all 4 was rape in the first degree which carries a potential penalty of from 5-25 years incarceration. While all this was going on the NCPD held a press conference about the case. The Nassau County PD likes to hold press conferences. That the conferences may serve to poison the jury pool does not seem to be a huge concern for the NCPD. They love to convict the defendants in the news media before the case ever gets to court.

In the press conference it was announced that the men involved planned the rape by snatching the woman's cell phone, and when she tried to retrieve it, lured her to the bathroom where the rape took place. This painted the grisly picture of a planned sex attack and it sure does sell newspapers.

Only one minor detail was overlooked. You read the title of this blog so you know what is coming. There . . . was. . . no. . . rape.

The 5th not yet arrested man had a cell phone and took some pictures of the incident. It turns out there was some bathroom sex and all of it was consensual. Now before anyone starts in with the behavior of the men was reprehensible, lets assume it was. What is was not was a crime. It appears the only crime committed here was committed by the female when she falsely accused the young men of raping her which was the catalyst for all that followed.

The woman was confronted and recanted. The DA, to her credit, acted with remarkable speed in securing the release of the men in jail. The Nassau County Police Department, finally finding a microphone they didn't like, has yet to be heard from. Presumably the search for the 5th man has been suspended.

So now the question became what about the false accuser? Would she be charged? When asked the DA first said it was "likely" while at the same time describing the woman as being "a deeply troubled young woman." Some days went by with a multitude of opinions being heard. Generally speaking there were 2 camps so to speak. One group said the woman should be charged as a warning to others not to engage in this type of behavior. The other said no charges should be brought for fear that women who really were raped would not come forward. The rationale was that oftentimes rape is a "he said she said" type of crime and that women might be looked at as false accusers and then punished.

Late on a Friday afternoon the DA announced that she would not charge the woman, but instead her office entered into an agreement with the woman that she would undergo counseling and engage in community service. If the DA was so proud of this solution one wonders why she buried it in a Friday afternoon announcement. Saturday has always been the day the fewest people read a newspaper. I do not think it a stretch to conclude that the DA hoped the story would "go away"" over the weekend.

But back to the main question. Should the false accuser be charged? Does it make a difference that the alleged crime was rape? Consider this: The woman in this case falsely alleges a gunpoint robbery which carries the same penalty as the rape. Should a false accuser be charged in that case? I do not know the answer to any of these questions. I'm just asking.

PS--For those interested, the woman that falsely accused the Duke lacrosse players was not charged.

Broken Trust Leads To Misinformation

I live in a small town in rural Idaho. I am in my early thirties and I see the effects of broken trust by law enforcement in the lives of my generation every day. Whenever a crime occurs, everyone in town knows what happened, EXCEPT the police.

Our town is small. All of the 30 something’s can quite truthfully state that they feel as if they have a thousand roommates. We all work our problems out and our personality conflicts because everyone we are mad at is a friend of at least one friend of ours. It is in the best interest of community that we learn to let things go and agree not to escalate our problems, gossip, or expect others to take sides.

Law enforcement and the courts, however, have a history of blowing problems out of proportion, drawing lines in the sand, and abusing authority. Over 20 young adults who lived within walking distance from the bar were sentenced to at least 2 years probation when they chose to walk home rather than drive, 4 people were ticketed for trespassing on a public road, and everyone driving at night was automatically pulled over and searched.

A deputy shot a neighborhood dog in its own yard 3 times in front of a school bus full of children due to a phone complaint. The dog lived. Another young woman was being harassed by an ex-boyfriend. She had a friend call and pretend to be the dispatcher asking him not to call again because she knew the sheriff’s office would not help. In January 2008, the community of young people came together and approached the local political party about replacing the Sheriff. They succeeded, and most of the youth know and respect our new Sheriff, but their trust has not been restored.

When a crime happens now, everyone takes the hands off approach. Talking to the police remains more excruciating than having your wisdom teeth out. No wants to become involved with representatives of a system that in past broke trust with the citizens it was meant to protect.

Until trust can be restored, the ability of authorities to "protect and serve" will remain diminished, and our community continues to pay a high price for the indiscretions of the previous administration.

Why prosecutors love plea bargains.

Statistics. I bet you thought it was going to be something else. Well, it could be, but statistics is one of the reasons that prosecutors love plea bargains.

District Attorneys, Commonwealth Attorneys or whatever they are called in your jurisdiction are politicians. Senators, representatives and the like run on their voting records, among other things. Prosecutors, when running for re-election run on conviction rates. Persons running for prosecutorial offices and trying to unseat the incumbent want to tell the voters how bad the incumbent's conviction rate is. So in this election season I thought it might be fun to explore "conviction rates."

In "the dirty little secret about plea bargains" which appeared here about a week and a half ago, I pointed out that any plea-bargain to less than the highest charge needed permission of the prosecutor and the approval of the court. Plea-bargaining keeps the court system moving and can also make a prosecutor look good as well.

When a person gets arrested there is a piece of paper which sets forth the charges against him. Some lawyers call this piece of paper an accusatory instrument, indictment or the like. I prefer a piece of paper. That's what it is after all. To prove that point some lawyers rip them up in front of the jury. Some lawyers like to use 25 words when 5 will do. But I digress.

Let's assume the person is arrested for a felony and is ultimately indicted. Let's further assume that he is indicted for murder, manslaughter, robbery and criminal possession of a weapon. The murder charge is called the top count because it carries the heaviest penalty of all the charges and will normally be count one of the indictment.

If the defendant pleads guilty to any of the charges in the indictment, it counts as a conviction for the prosecutor. If all defendants took pleas, the conviction rate would be 100%. Prosecutors would love this. If the defendant has the unmitigated gall to go to trial and is convicted of anything it is a conviction for the prosecution. Still not too bad for the prosecutor. So if 90 of 1oo cases plea out and the DA wins 5 out of the remaining 10 she has a 95% conviction rate A 95% conviction rate will make a prosecutor positively giddy.

Lets go back to our murder case and assume the prosecutor really, really doesn't want a trial. She can then go to the defendant's lawyer and offer a plea that simply cannot be refused. For example, if defendant goes to trial and loses he may get a life sentence. If he gets a plea of say 2 years, he really has to consider the plea even if innocent. If you are in his shoes do you want to roll the dice? So another plea bargain is struck and somewhere during the plea someone will mention the interests of justice and other phrases having to do with the majesty of the law and everyone will leave the court house thinking they did their job. Well, except for the defendant.

Let's take this a step further. In the above indictment let's assume there were four people charged. If they all go to trial and are convicted of anything not only will it show up as 4 convictions but will be recorded as 4 trials. Think of it. The individual who tried the case can legitimately say he tried 4 murder cases and got 4 convictions. If you are a prosecutor what could be better?

Anyway, the next time someone says that her office has a 95% conviction rate ask them to break it down into top count pleas and pleas versus trial conviction rates. I promise they will not do it unless you ask.

Privileges and duties--a dog's view

To those of you who know me it will come as no surprise that I have a talking dog. Spenser, the wonder dog, is a border collie who, in a household of three, is number two on the intelligence scale. I am number three so do the math. Spenser does many things that ordinary dogs cannot do. He predicts winners in sports events and has acted in an undercover capacity for the local police department to name a just two.

I was watching Anderson Cooper on CNN a few nights ago when Spenser wandered in and inquired as to what was on TV. The conversation went something like this.

Spenser: What are you watching?

Me: Anderson Cooper. He is going to have a segment on with David Martin, the lawyer that represented Cameron Todd Willingham at trial back in 1991.

Spenser: So what's the big deal?

Me: Mr. Willingham was executed in 2004 for an arson in which his three children were killed. Now there is a substantial body of evidence that the fire was an accident and Gov. Perry is being criticized for trying to cover up some facts by kicking people off a commission to get to the bottom of this.

Spenser: Let me take a wild guess. Is this going on in Texas by any chance?

Me: Yes. I should have mentioned that.

And so we watched the show. Mr. Martin appeared to be taking he position that if anything was said by anyone with which Martin did not agree that it was "absurd." Mr. Martin used that word quite a bit. Mr. Martin also made mention of an experiment that he conducted where he poured lighter fluid on a rug, lit it on fire and decided that it looked just like the rug in the Wllingham residence after the fire. I am not kidding. He actually said that--more than once. Now that's absurd. He also mentioned that he had been a criminal defense lawyer for 25 years.

After the segment was over I got barraged with questions from Spenser.

Spenser: You have been practicing criminal law for over 30 years. Don't you guys have certain duties to your clients, even after they are dead?

Me: Yes we do. There is an attorney client privilege that strictly prohibits an attorney from divulging confidences told to him by his client and there is a duty to represent the client within the law to the best of your ability. Loyalty and fidelity to the client are in there somewhere.

Spenser: Then I don't understand why the guy's lawyer was saying all those things. What do you think. You're the lawyer here.

Me: I don't know.

Spenser: Take a guess stupid. Not knowing something has never stopped you from running your mouth before.

Me: OK. OK. But I am only guessing.

Spenser: (Sigh.)

Me: Maybe he was looking for his 15 minutes of fame? Maybe he is a friend of the Governor who is up for re-election in a few months? Maybe he has been promised a nice job by somebody? Maybe he thought he was interviewing for a clown's position in the circus?

Spenser: Well, I am a dog and even I can figure out there is something wrong here. Want to hear what I think?

Me: Can I stop you?

Spenser: No. Don't be a smart ass. Here's what I think:

1. I have to wonder if Mr. Martin was really on board with defending Mr. Willingham.
2. Mr. Martin doesn't seem too open minded for a guy that did nothing wrong.
3. This "I have been a defense lawyer for 25 years" stuff is a red herring. He was a defense lawyer for less than 10 years at the time of trial.
4. This bourbon and branch experiment doesn't seem too reliable to me.

Me: Bourbon and branch?

Spenser: Yeah. That's when you get all liquored up on bourbon and branch water and go out and do something really stupid then try and pass it off as having some value.

Me: Anything else?

Spenser: Yeah. You defense lawyers should be more like dogs. We are loyal and you can tell us anything and we will keep it to ourselves--even if you die first.

Who do you trust in Texas?

Texas Governor Rick Perry (motto: "never saw a death sentence I didn't like") seems to be pulling out all the stops in his campaign to limit the political damage wrought by revelations that he's personally culpable in the execution of an innocent man. Cameron Todd Willingham's case took center-stage in the national debate on capital punishment after David Gann's feature in The New Yorker. Gann narrates a video summary of his article here:

Perry, faced with scientific evidence--evidence he says he read before giving the go-ahead to the execution--has now resorted to assassinating the character of the man he had killed. The Chicago Tribune reports today that "Gov. Rick Perry, seeking to defuse an election-season controversy over the 2004 execution of Cameron Todd Willingham, described Willingham on Wednesday as a 'monster' and 'bad man.'" I never knew Willingham, but I've known others I'd describe as "bad"--none of them committed arson. And, of course, that gets to one of principles we expect our criminal justice system to follow: people should be convicted for what they did, not for who they are.

Another principle to consider: forensic science should be applied consistently to determine guilt or innocence. Today's Dallas Morning News reveals a startling irony. Three years after Perry denied the validity of an exculpatory analysis of the fire that killed Willingham's children, Perry's general counsel, David Medina, and his wife were indicted for arson. Charges against the Medinas were dismissed when they hired experts who explained how the original arson investigation was flawed.

Rick Perry has now fired 4 of the 9 members of the Texas Forensic Science Commission, which had been scheduled to review the Willingham case. Since he's packed the commission with his own appointees, how much trust can anyone have in the objectivity of the commission should it once again take up the Willingham case?

Now might be the time to call for an independent review of the Governor's actions, not unlike the review conducted into the actions of former Illinois Governor Rod Blogojevich. Blogojevich, you may remember, was implicated in the selling of a Senate seat. At least he didn't kill anyone.

Investigations of police behavior, Part 2

Four days ago I posted here about investigations when a cop shoots someone and suggested that it might be a better idea for an independent body, a grand jury for instance, to investigate police shootings. The same principles apply for the investigation of any alleged misconduct.

Since then a story has been widely reported that proves the point more than any rantings by me could.

Today's NY Times reports that after an investigation by the Office of the Kings County District Attorney (Brooklyn) a grand jury has indicted a New York City cop for vehicular manslaughter where the officer is alleged to have been under the influence of alcohol. What makes this story germane to how police investigate themselves is the following. Two officers have been suspended for their action (or inaction) in this case. One for leaving the scene presumably so as not to have to take part in the investigation of a fellow officer and the other for supplying the police officer driver with gum and water. Does anyone think this might have been done to reduce the evidence of driving while intoxicated?

Sometimes somebody says or writes something that, within a few days, is corroborated. Maybe timing is everything?

For reasons that are not entirely clear to me, this story reminds me of an investigation I took part in some years ago. At the time I was a Special State Prosecutor appointed to investigate corruption in New York City. Coincidentally, my area of responsibility was Brooklyn.

Information had been received that 4 police officers upon arriving at premises from which property had been stolen, would then help themselves to property themselves before actually doing any actual police work. A store was rented and property was carefully accounted for and placed into the store. There was also a video camera secreted in the wall of the store. On a night when all 4 were working, the lock was intentionally broken on the door and a burglary was called in. The 4 responded and looted the place. And it was all caught on camera. During the time the cops were taking property from the store and secreting it in marked police cars one of them decided to examine the broken door lock. Not liking what he saw he began to examine the store walls and finally saw the hole behind which the camera was hidden. The camera was ripped out of the wall and broken (another crime) but lo and behold, the recording device was in the basement of an adjacent building. The officers decided to try to retrieve the recorder and broke into the other building (Yes, another crime). I am told that while walking down the stairs they were met by internal affairs people who were laughing so hard they could not make an arrest. The 4 fled in their marked police cars. One was stopped almost immediately and the other "got away." Eventually the second car returned to the precinct and all were arrested.

The case was presented to a grand jury and indictments and convictions were ultimately had.

I am told (but have no actual knowledge of this) that the video tape was subsequently used for trainees in the police academy to demonstrate what not to do when responding to a burglary.

The 4th Amendment: It's supposed to be more than a slogan

I think it is not out of line to suggest that the founding fathers had some concerns about general warrants and other search and seizure issues and, as a result, enacted the 4th Amendment to the United States Constitution.

That amendment has some catchy little sayings. Things such as "no warrants shall issue" and "probable cause" and other equally amusing phrases. The trouble with the 4th Amendment is that it does not get the respect that other amendments in the Bill of Rights get. It is sort of like the poor relation in the amendment family. I come to this conclusion because it seems that courts are always trying to carve exceptions out of it. If you look at the history of this amendment you come across just all kinds of exceptions. We have searches incident to arrest, searches due to exigent circumstances and automobile searches to name a few. And don't even get me started on the Foreign Intelligence Security and Patriot Acts.

One of my favorites is the "consent" exception to the general rules surrounding search and seizure. That's the exception where, for example, a person cheerfully opens a bag containing kilos of cocaine knowing that he is facing prison for the rest of her life. And all this just because a police officer politely asked for her consent to search the bag. Or when a team of officers comes to the door of a home and are seemingly invited into the home and just happen to see some damning evidence in "plain view" (another exception) which piggy backs nicely onto the "consent" search. Serendipity abounds.

Now I can almost hear you saying-But I would not consent. I have rights. Before you go down that road do something for me. Shut yours eyes and remember how nervous you were the last time a law enforcement officer stopped you for the most trivial thing. If you are like the rest of us you were nervous and upset and maybe even wanted to please the officer a little bit. This is what I think of as the "consent advantage" that the police have.

Lat's take another look where the subject of the search is a 17 year old, or a person not versed in the majesty of the law. What do you think happens here? You bet. Consent. Now the police produce a pre-printed form and tell the subject sign here so later on there will be evidence that you consented to his friendly intrusion into your life.

So now someone gets arrested and a hearing is held before the trial to see if the government can use the property seized against you because you consented to the search. Your lawyer will intone elegant words such as "there is a heavy burden on the government to prove consent" and the prosecutor will call at least one police witness to tell the judge of the circumstances surrounding the search and by the way, the defendant consented to the search in writing. The heavy burden vanishes and the seized property is declared to have been legally obtained. Rubbish. If the consent is the cake then the writing is the frosting. But if there was really not any consent then the frosting is meaningless. So not only do we have an exception to the 4th amendment we can also see how easily the exception can be twisted into something it never was.

Isn't the law grand?

When a cop shoots who investigates?

When I started my career in New York as an attorney who worked in the criminal justice system I was an assistant district attorney in Queens County (one of the boroughs of New York City). I spent a bit of time as a special assistant attorney general prosecuting corruption in New York City and then went back to the office of the Queens district attorney. I finally worked as an assistant district attorney in Nassau County which is contiguous with Queens County. When in the Queens District Attorney's Office I served in both the homicide investigations unit and the homicide trials unit. In Nassau County, I was assigned to the special investigations unit which investigated police misconduct. I mention this so that the reader will understand that I have had some experience in cop shootings.

From time to time a police officer in New York City will shoot someone. When that happens officers and detectives from the shooter's precinct will generally investigate the shooting. There may also be an investigation done by investigators from the District Attorney's Office, and the case will be reviewed by assistant district attorneys. At this point there will have been an investigation by the New York City Police Department which will have been reviewed by the office of the district attorney in whatever county and the shooting took place. The case will then be presented to a grand jury who will hear the facts presented by the prosecutor and then either indict the shooting officer or not.

But procedures are far different in Nassau County, and in the majority if not all of the counties outside of New York City. The role played by the grand jury is limited to non-existent. In Nassau County, the police department simply does its own investigation and then announces whether or not the shooting was justified. Due to an old order of the Commissioner of Police the determination of whether or not the shooting was justified is to be made within 24 hours. At that point I suppose the office of the district attorney could review the findings of the Nassau County police department and present the case to a grand jury but to my knowledge that has not been done in the last 20 years.

So what we have is a police officer shooting somebody and being cleared within 24 hours. Does that sound like a rush to judgment? Is it just me, or does anybody else believe that someone besides officers in the same Police Department should be taking an independent look at these types of shootings? And what's the rush? In any other type of homicide--and make no mistake these cases are homicides--the case would be worked until there was a clear resolution.

In today's climate more and more people lose faith in the criminal justice system as well as in police officers. Wouldn't it make more sense to actually investigate police officer shootings in a thorough and meaningful way rather than just declaring them to be justified?

I do not wish to leave the reader with the notion that I believe all police shootings result in cover-ups. I mentioned some of my background above because I have been involved in the investigation and presentation to a grand jury of a number of police shootings. None of the cases that I presented to the grand jury resulted in an indictment. That was not always the case with some of my colleagues. My point here is to suggest that the friends and colleagues of a police officer who shoots somebody should not be the last word as to whether the shooting was justified. An independent examination of police shootings might, more often than not, reach the same result as an "in house" investigation. However, cover-ups would be more difficult, and the public could have more faith in investigations of this type.

That would be good for everyone.

Media's role in wrongful convictions

On September 16, 2009, CNN posed the question to its audience, “Do you trust the news media?" Their blog has since been slammed with over 500 comments that illustrate the division in those who put their trust in what they see on television and those who are skeptical about what the media constitutes as "news." This question was prompted by a Pew Research Study which found that our trust in the news media is at a two decade low. According to this study, 26% of those questioned believe that the media is careful to avoid bias in their stories and only 18% believe that the media tells both sides of the story. (Chart retrieved from http://people-press.org/report/543/)

Despite the distrust many have regarding the accuracy of news reports, local crime reporting can undermine justice. The case of Paul Cortez comes to mind. His was a high profile case in New York City in which his girlfriend was brutally murdered. Though there was no physical evidence linking Cortez to the crime, he became the prosecution's only target.

According to Paul Cortez's Web site at http://paulcortezupdates.typepad.com/media/, "In the following days, 'anonymous police sources' admittedly leaked Paul’s personal information to the tabloid media, who in turn immediately began their attack on Paul. The New York Post, the Daily News, and other sensationalized media began to spin a very 'juicy' (i.e. profitable) tale of an obsessed ex-lover. These stories, based entirely on unproven allegations and fabrications, pervaded New York City. His photo was plastered across newspapers and news programs. Reporters stalked him. He was tried and hung for weeks before he was even arrested."

The information that was leaked to the press in Paul's case was later found to be erroneous. Still, Paul Cortez faced a media frenzy that was built-up with the alleged sole purpose to convict him before his trial. For example, America's Most Wanted, a nationally televised program on crime that I once trusted as a viable source for news joined the frenzy stating, "Authorities say the night of the murder, Cortez can be seen on surveillance tape standing outside of Catherine's apartment, where he allegedly called her seven times." According to Cortez's supporters, no such video tape was ever in existence. Media outlets have repeated reference the video as fact, but we have been unable to locate any independent confirmation that it exists.

This case is but one example of media influence. We have to question where the erroneous information originates from and why members of the media are not held accountable for reporting information that could taint a case such as this one. GI Jane's comment on CNN's poll (http://newsroom.blogs.cnn.com/2009/09/16/do-you-trust-the-news-media/) particularly rings true to me. She stated, "Having worked in law enforcement / military for over 30 years, I have seen / read very inaccurate news stories, some where I have personal knowledge because I worked the case or was there. Best to gather your own facts, and come to your own conclusions about 'news stories.'"

In reforming the justice system in our country, the practices of local and national media in the reporting of any open criminal case should be addressed as well. Though many who are educated or have dealt with the media personally put little faith in what they hear, our right to a fair trial is jeopardized each time the media reports an untrue or one-sided account. Demand accountability from the media. Fairness demands it.

The Dirty Little Secret About Plea Bargaining

It is generally thought that when engaging in discussions, conversations and the like, that more reliance on facts than not is a plus. With that in mind, I would like to mention one of the dirty little secrets about plea-bargaining.

In many discussions of plea-bargaining we hear phrases such as revolving door and turnstile Justice. These phrases are often followed by uncomplimentary adjectives describing defendants and criminal defense lawyers. Now, here is the secret: plea bargains to a lesser charge require the consent of the prosecutor and the approval of the court. Let me say that again. Plea bargains to a lesser charge require the consent of the prosecutor and the approval of the court.

Let's take an example based on the criminal laws of New York. While the laws may be different in other jurisdictions the principles stated above will not be different. Let us suppose that a defendant is charged with assault in the second degree which is a class D felony. Let us further suppose that the defendant wishes to take a plea to assault in the third degree, a class A misdemeanor which carries a penalty of considerably less jail time. That plea can only be accomplished with the permission of the prosecutor who will stand up in open court and recommend that the plea be accepted by the court. The defendant will then plead guilty to the lesser charge. The court, must then approve of the so-called deal, or plea bargain.

The fact of a plea bargain to a lesser charge is that there are three parties to the process. The prosecutor, who must give her permission; the judge, who must give her approval; and the defendant, who is hoping for the permission of one and the approval of the other. In fact, the defendant and the defense lawyer have much less control over plea bargains than the prosecution and the court.

So the next time you are at a cocktail party or just sitting around the campfire and somebody says these criminals and their lawyers are allowed to get away with murder, remind them that what ever they may have gotten away with the prosecutor and the judge okayed it.

Let's take another example that many of us do not think about. Let us suppose that the defendant is charged with a crime and whether or not he will be convicted depends wholly on the testimony of police officers. Let's further assume that the penalty for the crime is 10 years. At arraignment bail is set in an amount that will keep the defendant in jail pending trial. A year goes by and the prosecutor begins to have doubts about the strength of his case. The defendant is offered a plea and a penalty of "time served" meaning if he takes the plea he will get out of jail and go home right away. If he doesn't take the plea, he will wait a while longer for his trial and if he loses face 10 years in jail. Whether guilty or not, there are many people who will take that plea. If an innocent defendant takes that plea it does not seem to me that he got away with anything.

Innocence Project and John Grisham Events

If you're in the Oklahoma/Missouri area, there are two events this month that you won't want to miss.

First, on October 13th the Oklahoma City University School of Law is hosting a fundraiser to start a much-needed Innocence Project in our state. The guest of honor at this event will be John Grisham, author of The Innocent Man, the true story of Ron Williamson and Dennis Fritz--two men who were wrongfully convicted and imprisoned for eleven years. More information on this event is available online.

Second, on October 27th the Midwestern Innocence Project is hosting an event that features the riveting and compelling story of how Jennifer Thompson's faulty eyewitness identification sent Ronald Cotton to prison for 11 years for a rape he did not commit. Here's a video of a recent 60 Minutes' report of the case:


Watch CBS News Videos Online

The event is scheduled for Tuesday, October 278:00-9:00am at the Bryan Cave Law Firm, 1200 Main Street, 36th Floor, Kansas City, MO 64106, and requires a $60.00 donation per person to benefit the Midwestern Innocence Project. A light breakfast will be provided by Bryan Cave. Autographed editions of Ronald and Jennifer's book Picking Cotton will be available for purchase.

I couldn't do the math so I went to law school

"I couldn't do math so I went to law school" was a title I proposed for a continuing legal education program run by a state bar association in New York on forensic science. I hoped the title would catch the interest of potential attendees and make them rush to sign up for the one-day course.

As I thought more about the title, I began to think that most criminal Defense lawyers really are not well versed in forensic sciences and that this can take our clients down the highway to disaster. We are expected to defend our clients to the best of our abilities and we cross-examine witnesses relentlessly on issues of identification, etc., but we often times do a less than splendid job with so-called prosecution forensic experts in arson, ballistics, DNA statistics, gas chromatography.... The list goes on and on but you get the idea.

And here comes the entrance to the highway leading to disaster. The prosecution calls a witness and asks enough questions to have the judge declare the witness to be qualified an "expert" or least qualified to answer opinion (rather than fact) questions. Mind you, the prosecutor will have prepared the expert before she testifies and the testimony will be a smooth narrative designed to impress the jurors and convince them of the guilt of the defendant. The expert, having done this before, will turn to the jurors and smile at them when answering questions. This rapport building has nothing to do with the content of the expert testimony, but then it's not supposed to.

Now the defense lawyer has an opportunity to impeach not only the expert but the findings of the expert. In many cases we see some efforts to impeach the expert but precious little impeachment on the findings and/or methods used by the expert. That is, the "science" relied upon by the expert. Why? The defense lawyer doesn't know enough about the science or even if the subject matter is a science.

Eventually the jury will get the case and will look carefully at the opinions of the expert. Unfortunately, an expert's opinions will be given gospel-like qualities if not impeached, and the defendant may be found guilty on perhaps less than scientific evidence. Lets face it, jurors are not likely to know whether or not the expert knows what she is talking about

A recent film called "My Cousin Vinny" is illustrative. In the film an FBI agent testifies for the prosecution using science that the car belonging to the defendants is the same car that left tire tracks at the scene of the crime. At the conclusion of the testimony the prosecutor, with a smug smile, sits down and we are shown jurors throwing killer looks at the defendants. Fortunately, Vinny's friend (played by Marisa Tomei) is a crackerjack (expert) on cars and completely destroys the prosecution witness. All is rendered well in the universe and the case against the defendants is dismissed.

In the real world we too often see cases such as that of Cameron Todd Willingham where the use of the prosecution's expert arson witness has been challenged on a number of grounds after the execution of Mr. Willingham. I have not read the transcripts of that trial so I will not comment on the testimony of the arson expert or on the effectiveness of Mr. Willingham's counsel. It has been reported that the jury took less than an hour to convict him. I'm betting the jury relied heavily on the prosecution's arson witness. After all, he was an expert.

Cameron Todd Willingham and Forensic Science

Scott Henson at the blog Grits for Breakfast bemoans that the debate over the Willingham case (see the New Yorker article on how Texas executed an innocent man) has not focused on arson science.

He makes an important point. It's understandable that those involved in the trial and execution wish to defend their actions; it's more important that we not lose sight of the broad implications of using junk science to gain convictions.

We now know that much of what passed for "forensic science" in the past was based on little more than the "science" used to convict witches in Salem in the 1600s.

Forensic reform is essential if we are to achieve accurate decisions in criminal cases that arise from empirical evidence. Now is a good time for all of us to learn more about what needs to be done to make forensic science into a real science. Take a look at http://www.just-science.org/ and sign their petition to support the creation of a federal agency to ensure that all forensic evidence is based on solid science.