THE PRICE OF TRUTH

for Everton Wagstaffe is remaining in prison to await the results of a DNA test, although he can leave anytime he wants because he has served 17 years and is approved for parole. The title of the post links to the NY Times article. 

“I am willing to sacrifice more to prove my innocence,” Mr. Wagstaffe said. “To do otherwise would be a betrayal of the truth and what is right. My time is ripe. I won’t allow myself to be released with these conditions. It will be proven that I had nothing to do with this terrible crime, and then I will walk out of here.”

Rumpole asks, "what would you do?"

DNA EXONERATION TOO LATE. 

We have often viewed the DNA exoneration of death row inmates with this troubling thought:  what about all the wrongful convictions of those people not sentenced to death?  Death penalty cases draw the most attention, not to mention the most of the precious resources needed to exonerate those who were wrongfully convicted. What about the inmate serving ten, or twenty, or thirty years who was also wrongfully convicted? 

 Most of wrongful conviction  cases arise out of the use of eyewitness identification, which,  for those of you who have read "The Seven Sins Of Memory" know is about as reliable as  CIA intelligence on WMDs in Iraq.  

Exoneration came way too late for Timothy Cole,  who died in prison before he could be exonerated. Here is the link to the NPR article. Listen to the report. It is heart rendering. This young man was in high school with his whole life ahead of him, when a wayward accusation of rape, with no supporting physical evidence, overcame Mr. Cole's  strong alibi in a Texas courtroom in 1985. Mr. Cole was black. He was with friends and family when the rape occurred. The victim was white.  So was the Texas jury, and that was that. 

As Timothy  Cole sat weeping in his jail cell, the real rapist sat in the cell across from him, listening to the heart rendering cries of a young man whose future had just been wiped out. 

Timothy Cole,  who suffered from severe asthma, died in prison. DNA has now exonerated him completely. Listen to the NPR report and how Cole's attorneys could not get one Judge in Lubbock Texas to even re-examine the case after DNA cleared him, and the real rapist confessed. 

Some great justice system we have.  "The envy of the whole world"  our politicians like to brag. Yeah. 

See You Monday. 

Woops.

Once again DNA evidence exonerates an innocent individual, in prison since 1993. But the case of Lynn DeJac and her wrongful conviction for murdering her 13 year old daughter 14 years ago has a different twist.

Last year DNA evidence that implicated another individual led to a court granting DeJac’s motion for a new trial and her release. State prosecutors in Buffalo New York, announced their intention to retry DeJac (Citing to the prosecutor’s code of evidence, section 11(b): “DNA evidence is only for the prosecution. When it exonerates a defendant, there must be another explanation for this ‘junk science’.)

However, the twist came when Dr. Michael Baden, former Chief ME for New York City reexamined the autopsy and found that no one killed the young girl: she died from a drug overdose. The prosecution’s original theory of the case was that despite the lack of physical evidence on the body, the girl was strangled.

What caught our eye (as DNA exonerations of convicted defendants are becoming so common place) was this quote from Dr. Baden:
As Dr. Baden put it: “The apology should really come from forensic science. Medical examiners also make mistakes. It should be a wake-up call for defense attorneys to have their own experts examine the evidence.”

Perhaps our robed readers might remember that quote the next time a defense attorney is in court seeking funds for an expert to review the findings of an ME in Miami.

All that glitters is not gold- and all that our ME’s say happened, might just not be so.

The NY Times article is HERE

See you in Court, where we rarely trust anything an expert opines on.

PS. Speaking of exoneration, Judge Ana (Speed Racer) Gardiner of North Of the Border and reckless Mercedes driving fame, has been cleared of leaving the scene of an accident. Apparently there is an exception to the Florida Statutes, if you are a Judge, and after you drive away from an accident an angel appears on your shoulder and says "hey, stupid- you're committing a crime" and you quickly return to the scene.

The Herald Article is HERE

TALES OF THE WRONGFULLY CONVICTED

The NY Times reported Sunday HERE
on
Jeffrey Deskovic: wrongfully convicted of murder at age 17, he was freed after spending 16 years in prison on the basis of DNA evidence which served to support his contention that the detectives coerced his confession. At age 34, having lost half of his life in prison for a crime he did not commit, the Times details the everyday travails of a man who is doing things like swimming and opening a window for the first time in 16 years.

We’ve been though this familiar route so many times, it’s time to start asking some different questions:

It is now accepted fact that eyewitness identifications are often inherently unreliable. However, most prosecutors will tell you that a good eyewitness identification is the strongest evidence they have. If you have read The Seven Sins Of Memory you know the reasons why eyewitness identifications are unreliable. That being said, what do we do? We can start by changing the jury instructions to deal with situations in which there is only an eyewitness identification without any supporting evidence. Something along the lines of the jury instruction on a defendant’s statement- that “the jury should treat an eyewitness identification without supporting evidence with extreme caution.”

Judges and prosecutors need training (note we didn’t write “better training” because we don’t believe that most judges or prosecutors have any clue as to how unreliable an eyewitness identification really is. Before they can have better training, they need some training first.) on eyewitness identification.

Next up are confessions. Florida needs to pass a law requiring the police to videotape confessions. The fact is that innocent people confess. Just ask Jeffrey Deskovic.

The changes in the way conflict attorneys are compensated in Florida is a recipe for disaster. Instead of getting better trained lawyers, defendants charged with the most serious of crimes will have poorly trained and underpaid attorneys handling their cases. If we’re lucky there will be one Jeffrey Deskovic a year in Florida. More likely, there will be one a month.

Yes, we have an adversarial jury system. But we must recognize that mistakes will happen. When Jeffrey Deskovic was sentenced, he told the judge he was innocent. The judge responded “that may be so, but the jury has spoken.” Off went Deskovic to spend half his life in prison for a crime he didn’t commit.

Anyone who abandons their common sense on the altar of “the jury has spoken” deserves to be removed from working in the criminal justice system. These are peoples lives we are dealing with. Surgeons in a hospital have a weekly conference in which they have to account to their colleagues for any mistake that occurs during an operation. The legal system has nothing remotely similar. When mistakes are made, we shrug, say “sorry”, give the poor soul a few hundred thousand dollars and send them on their way.

It’s time to change the paradigm.

And finally, we must do away with the trial tax. If we believe in a system that guarantees a trial by jury, it is time for prosecutors to stop whispering to defense attorneys “This judge will max your guy out if you lose.” A judge needs to take the excessive punishment out of the equation and sentence a defendant with reason and responsibility. The BS that the judge increased the sentence after the plea offer because s/he learned more about he case after the trial is just that: bull shit. It is a fiction and we all know it and it is time we speak up about it. If you try a case and if you lose, and if the sentence ends up being something like 5 or ten times the plea offer, it is time to put the facts on the record, accuse the judge and prosecutor of vindictiveness, and preserve the issue for appeal.

There are judges sitting in our Miami courthouse today who have been reversed for vindictiveness for giving – and we are now speaking about one particular instance- a defendant 99 years after a PVH in which the defendant turned down a plea offer of a guideline sentence of 57 months. This kind of crap has to stop, and Judges who do this need to suffer some type of ramification. This judge in question suffered nothing more than the embarrassment of the Third DCA’s opinion. Something more should have happened to a judge who so cavalierly tossed a man’s life away for no good reason. Perhaps they shouldn't be a judge, or shouldn't be in criminal court.

The legal system thrives on suing doctors who make mistakes, and yet does very little to lawyers and judges who make similar mistakes. When a doctor screws up, the patient dies. When a Judge mistakenly and vindictively sentences an innocent man to life in prison, the man dies a little bit every day. We'd take the former over the latter without any hesitation.

See You In Court.

Another Tragedy

KEN FELDMAN MEMORIAL

A memorial service honoring former St. Thomas Law School Professor Ken Feldman will be held Monday, June 11th at 6:00 PM at the St. Thomas Law School in Miami Lakes, Florida.


Here is part of the NY Times story we mentioned in a comment about an innocent man convicted. We would like prosecutors to comment on professor Scheck's statement that

ELIZABETH, N.J., May 15 — A man who served 19 years in prison for the sadistic murders of his companion’s two children walked out of the Union County Courthouse flanked by his family members after a judge vacated his convictions on Tuesday.


Prosecutors contended that DNA evidence in the case would probably change the mind of the jury that convicted the man, Byron Halsey, 46. They also said that the DNA evidence pointed instead to Cliff Hall, a neighbor who testified against Mr. Halsey at his 1988 trial and who is currently in prison for three sexual assaults.
Mr. Halsey, who was handcuffed, sat crying silently during the brief proceeding in Union County Superior Court before Judge Stuart L. Peim.

As he left the courthouse, Mr. Halsey said, “I thank my Lord and savior Jesus for keeping me.”
Asked about his emotional state, he smiled and said, “I don’t want to get in more trouble.” He added, What was done to me was criminal at best.”

Barry Scheck, co-director of the Innocence Project, the Manhattan legal clinic that revived the case, said: “It’s a miracle that Byron is here with us, because if ever there was a case where there was a risk of executing an innocent man, it was this case. Because the facts of the case were so horrible.”

Prosecutors had sought the death penalty for Mr. Halsey in the 1985 killings. The crimes were particularly chilling — Tina Urquhart, 7, was raped and strangled, and her brother, Tyrone Urquhart, 8, died after four nails were hammered into his skull with a brick. The children’s bodies were found in the basement of a rooming house in Plainfield where Mr. Halsey lived with their mother.

...

Mr. Halsey contacted the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University after exhausting his appeals. Advanced DNA techniques that were not available at the time of the trial showed that the evidence had no link to Mr. Halsey. It did, however, show a match with Mr. Hall, whose DNA samples were already in the state’s database because of his convictions in sex crimes that occurred after the Urquhart children were killed.

...
Mr. Scheck noted that in about a quarter of the 201 wrongful convictions that have been overturned with the use of DNA evidence, people had confessed or admitted to crimes they did not commit. Mr. Halsey signed a confession after 30 hours of interrogation, Mr. Scheck said. Mr. Halsey’s lawyers said he had a sixth-grade education and severe learning disabilities.

Rumpole says, the next time a prosecutor tells us that they will revoke all plea offers if we seek a bond hearing, or file any motions- because our client confessed and is clearly guilty- we will just attach a copy of this newspaper article to our letter to their supervisor complaining about their actions.

This business of "punishing" defendants for having attorneys who vigorously defend them has got to stop. We call on the State Attorney to either abandon this policy or defend it in public, and we call upon Judges to not let prosecutors get away with such bullying tactics in their courtrooms.

And before all the emails start flooding in- yes, we recognize that in certain limited cases- like where children are victims, or in the case of sexual assault, it is good policy to remind all parties that the prosecution may revoke a plea offer after all the other work is done, and the defense indicates it wishes to depose the victim.

How can we work in a legal system where we revere the Constitution, and then punish a defendant who seeks to use the rights afforded by the Constitution?

This merits serious discussion.

Have a good weekend.