Seeking Justice For The Innocent

The Not-So-Reliable Forensic Science

When they are pulling out forensic science to prove a defendant guilty on CSI, we all sit back and sigh in relief. Finally, as long as the evidence is gathered and disclosed in full accordance of the law, then the infallible crime lab evidence can put the true culprits behind bars, right? 

There are many variables that need to be controlled in the court room, but even forensic science, the courtroom staple, is in ample need of reform. On July 10th it was announced that the Justice Department and the FBI, with the help of the Innocence Project and the National Association of Criminal Defense Lawyers, will review cases reaching back to at least 1985. This investigation is focusing on cases that utilized hair and fiber follicle evidence. It is unclear as to what the determining factors for cases are in this joint review, but the occurrence of a review is a positive step. These steps however, must not stop here.

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Alarming Rates of Incarceration in the US

Americans are always taught that the US is the freest nation on Earth. America has freedoms under the Bill of Rights like many other nations, but how can we measure freedom quantifiably? What if the idea is simplified to mean those who are free citizens versus those who are imprisoned? It’s basic and imprecise, but the statement ultimately can’t be denied.

When examining this measure it may be shocking to learn that the incarceration rate in the United States is higher than anywhere in the world. In May of 2011 there were 743 inmates per 100,000 of the national population. The next highest rating is Rwanda with 595 per 100,000. And that’s not all.

In shear number of prisoners China just narrowly surpasses the US in 2011 only if the 650,000 people held in Chinese administrative detentions are counted. If you do not count these administrative detainees who are often non-criminal political activists, astonishingly the US has a much larger inmate total than the semi-communistic country with a population in 2011 that was 77% greater than the US.

A quick way to test the severity of the US penal system is by asking this question: would you rather be a citizen in Louisiana or Iran? What if you consider that Louisiana has an incarceration rate that is almost 5 times that of Iran? Frighteningly 1 in 86 adults, and worse still, 1 in 14 black males are behind bars in Louisiana.

It seems that Americans have become increasingly concerned with safety, causing state and federal legislatures to become obsessed with increasing incarceration rates. All the hard work and worrying has created laws and policies that have increased prison populations by 700 percent since the early 70’s.

It therefore seems that Americans are allowed to exercise their “greater amounts of freedom” while being contradictorily imprisoned for more reasons. Unfortunately one factor that can help to explain this contradiction is the length of prison sentences in the US, which far exceed those of any other developed nation.

Political figures tend to boast about the falling arrest and crime rates. Normally these decreasing figures would mean a decrease in prison population, but inmates released in 2009 spent a 36 percent longer time in prison than offenders released in 1990.

This trend is occurring in the American penal system because of mandated sentencing laws like the 3 strikes law, and an increase in life sentences. Many states have also abolished parole, or now have laws that prevent parole boards from releasing low-risk prisoners before they have served 85% of their sentence.

Similar to the 3 strikes law, other mandated sentencing laws have dramatically increased prison sentences for low-level criminals. A 2010 case put Jamel Dossie, a very low level crack dealer, away for five years. The presiding judge, Judge Gleeson, had his hands tied since the mandatory drug sentencing could not be altered by a judge who earnestly disagreed with the outcome of the trial.

In his opinion Judge Gleeson said, “This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process…They strip defendants of the due process rights,” and also that, “too many, nonviolent, low level, substance-abusing defendants like Jamel Dossie ‘lose their claim to a future’…because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table.”

Twenty years ago Louisiana’s prisons were overcrowded. The state decided it would build more prisons rather than reform its system. Sheriffs all over the state rushed to build the needed prisons since it would create jobs and very lucrative incentives for incarcerating people. As a result prison populations doubled since 1990.

The former general counsel for Louisiana Department of Corrections, Richard Crane, said, "If the sheriffs hadn't built those extra spaces, we'd either have to go to the Legislature and say, 'Give us more money,' or we'd have to reduce the sentences, make it easier to get parole and commutation -- and get rid of people who shouldn't be here."

In California, the state with the current highest number incarcerated, overcrowding has also become a huge problem. Similar to the 1990 situation in Louisiana, the Supreme Court ordered a population reduction in California’s prisons in 2010. That year California had 151,036 prisoners in its 33 adult institutions. Since the order, 30,090 have been released or transferred from these state prisons.  This reduction has allowed the California state correctional facilities to function at approximately 152% of its current design capacity.

It isn’t hard to imagine how much pressure is placed on a system that has essentially no room for new convicts. Instead of reviewing policies that have led to this overcrowding, prisoners are being shuffled around to alleviate the dangerously unhealthy crowded prisons. County jails, for example, will see 250 more inmates a year than what had been previously projected. Among this increase are violent offenders even though the state has promised to keep violent offenders in state prisons where they have the proper facilities to deal with them.

The 2010 order has also caused 5,800 inmates to be shipped to private prisons outside of California, increasing this total number to 15,000. All of this raises a chilling question: what if California takes a page out of Louisiana’s recent history and builds more facilities so as to be operating below design capacity?

Besides mirroring the ghastly results in Louisiana, California would probably greatly increase the overall country’s state correctional facility budget. Expenditures on state correctional facilities have quadrupled in the past twenty years.  In a comprehensive analysis of 40 participant US states, Christian Henrich and Ruth Delaney found that taxpayers were paying an unnecessarily high $39 billion dollars for state correctional facilities. This high total also includes $5.4 billion more than is actually reflected in the states’ budgets.

Henrich and Delaney’s conclusions on how to reduce this extraneous spending indicates that, “The only way for states to decrease their prison budgets substantially is to reduce the inmate population and then reduce the operating capacity and related costs,” and, “the largest impact on prison budgets comes from changing sentencing and release policies.”

So I ask again: if America is the freest nation in the world, why do we lock up more people than any other country? Why do we have longer sentences than any developed nation? Why are we spending so much on a prodigal institution during this era of governmental budget tightening? And why are private prisons becoming so in vogue? Well at least this last question seems to have an obvious answer.

Charge Stacking: Gambling with People's Lives

There is a relatively new term in the legal system that is heard all too rarely, and usually understood when it's too late. The sheer power it carries can be catastrophic, and thus should be a prime fear of all defendants who enter to the mercy of the courts. The phrase is "charge stacking".  

These seemingly simple words, which have ravaged the lives of so many, arose out of a natural evolutionary development in the courtrooms. But it is this phrase, or this practice of stacking that, for example, enabled a 20 year old first time offender to receive 1,941 months (162 years) in prison without the possibility of parole, reported by Reuters – Tue, Jul 3, 2012.

The practice of charge stacking is a simple and terribly effective method for prosecutors looking to win cases. The technique entails finding as many possible criminal counts to “stack” against the defendant in order to strengthen the core case of the prosecution. This strategy is made wide open to prosecutors, because the main deterrent against stacking charges is the law of double jeopardy. In Blockburger v. United States, the Supreme Court said the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Therefore double jeopardy is so weak a deterrent that a person can be convicted of ten counts of perjury when they were perjuring about one thing on ten different days. Turning one crime into many is easily done, and with this in mind a prosecutor can easily circumvent laws of double jeopardy in order to lump, for example, drug offenses with conspiracy (some laws like this are broad and easily manipulated to fit many cases), gun use, money laundering, and a laundry list of other charges together. At first glance this may not seem so bad. After all, the criminal who gets taken down for serious drug crimes is often guilty of these other charges and probably deserves punishment for them. When charge stacking is without limit, however, lesser criminals may suffer under the weight of this exorbitant practice.

In the case of Quartavious Davis (the 20 year old mentioned above) each of the numerous counts of indictment against him were counted as separate crimes. This made Davis, who had never before been charged with a crime, into a multiple offender in a single court case. Davis is now subject to sentences for each stacked charge and to mandatory sentencing guidelines.  Mandatory sentencing is a factor in Common Law whereby a court must impose a minimum amount of prison time on a defendant as predicated by precedent. Mandatory sentencing also revokes a judge’s discretionary powers, so he or she can’t reduce the sentence to match the severity of the crime or criminal.     

Since prosecutors are looking to win cases, why wouldn’t they stack charges? There was a case about a goat farmer in California named Khalid Berny who was charged with 170 counts of misdemeanor. What was Mr. Berny's heinous crime? The accidental wandering of his goats onto his neighbors property. Berny was charged on three separate occasions for every single roving goat bringing the separate charge total to 170. The punishment for this crime was a fine of $102 per goat, or $17,340, and 60 years in prison. It is also relevant to note that Mr. Berny was never warned by animal control and was hospitalized during the last goat escape incident, therefore incapable of being present on his farm. But stacking isn’t bound by common sense.

Certainly William J Stuntz, a criminal justice scholar and professor at Harvard Law, doesn’t see any endpoint in a comment made about the practice, “We are likely to come ever closer to a world in which the law on the books makes everyone a felon and in which prosecutors and the police both define the law on the street and decide who has violated it,” for a necessity of charge stacking is the flexible interpretations of laws by enforcers of it. Police must also be mentioned in the same breath, as most people only care about a police force that "cleans up the streets".

Prosecutors cannot wear all the blame. A major problem is that public pressure makes stacking charges too tantalizing for prosecutors. This is especially true when a public servant, such as a District Attorney, has to prove him/herself to the public. How often do news sources elaborate on injustice committed against possible criminals, or courtroom civility versus crimes that have been or have potentially been committed? How often are public and private attorney's rewarded for convictions rather than fair practices?

Prosecutors look to improve their “courtroom stats” to gain reputation and status. Stacking charges increases wins, because it is more difficult to defend a large number of charges. Adding more counts will increase the chances of a lengthy and expensive legal battle, which many defendants cannot afford. Plus, a defendant with five charges seems less guilty than one with ten or twenty or eighty charges.  All of this pressure can be leveraged against possibly innocent defendants causing them to believe it is in their best interest to plea-bargain rather than chance losing in open court.

If public and private pressure push lawyers and police to practice stacking, than perhaps the third branch of government might be capable of helping? Why wouldn't the legislature attempt to curb this practice?

Richard McAdams writes in his paper, The Political Economy of Criminal Law and Procedure: the Pessimists’ View, legislatures tend to care about their constituent’s preferences, which is generally more concerned with proper punishment of heinous crimes, than the content of criminal statutes. Plus, police and prosecutors have a strong lobby for expanding criminal liability. That is why legislatures write broad statutes that make it easier to punish particular individuals even though the statutes also allow for the punishment of conduct that legislatures do not want to be penalized. In short, almost nothing is being done on capitol hill to assuage this problem.

None of the three branches of government have a foreseeable reason to limit this extensive practice. No branch has a need to check one another, and no group or body, governmental or otherwise, has done much to rein in this problem allowing it and innocent or less guilty defendants to fall through the cracks. 

Prosecutorial Misconduct Running Rampant

A study done by the Chicago Tribune found that between 1963 and 1999 the courts dismissed the conviction in 381 homicide cases, because prosecutors held back evidence that would prove the defendant’s innocence, or because of false testimonies. In all of these cases, not a single prosecutor was castigated for these courtroom deceits. 

One of the worst forms of prosecutorial misconduct is when prosecutors have knowingly admitted false evidence to convict an innocent person. Lloyd Eden Miller Jr. was put on death row for rape and murder of an 8 year old girl. The conviction rested on two pieces of evidence, a confession signed by Mr. Miller, and bloodstained shorts alleged to be his. It was discovered that Miller was threatened with the death penalty if he didn’t sign a confession, which was written by a police officer and contained details that were inconsistent with the known facts of the crime. It was also discovered that the shorts were too small for Miller and even more shocking, that the stains on them were merely red paint. The prosecutor of this case was investigated by the Illinois State Bar Association which found no grounds for disciplinary action.

If prosecutors can add false evidence to cases without punishment, then what's to stop them from subtracting key evidence? John Thompson served 14 years on death row in Louisiana and was exonerated in April, 2011 just weeks before his death sentence. His case was rife with prosecutorial misconduct, but the most appalling involved a blood sample from the crime scene. The sample did not match Thompson’s blood type, and the prosecutor knew it. In fact, it was proven that the prosecutor took the jeans with the blood sample out of police evidence and threw them away so that the defense wouldn’t find this evidence. Thompson said in the NY Times, “I just want to know why the prosecutors, who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.”

The current forms of prosecutorial review are: the appellate review of claims of misconduct, judicial reporting of acts of misconduct, state bar disciplinary action, statewide codes of professional conduct, as well as internal systems of accountability within prosecutors’ offices. All of these forms of review are too feeble to limit prosecutorial abuses of power. 

Joseph diGenova agrees with this lack of prosecutorial governance stating, “I’m a former United States Attorney. I locked up a lot of people. I believe in the Department, I believe in its mission. But the Department is in real trouble. This is serious business. These career prosecutors believe that nobody can touch them. Nobody! That’s a very dangerous thing in a free society...”

In 2003, another study, this time conducted by the Center for Public Integrity, found that prosecutorial misconduct was a factor in dismissed charges, reversed convictions, or reduced sentences in at least 2,012 cases since 1970.

But 2003 was years ago, so plenty could have changed since then, right? Back track just four years (2010), the Northern California Innocence Project at Santa Clara University School of Law, released Preventable Error: Prosecutorial Misconduct, in 2010. This study looked at prosecutorial misconduct for a ten year period in California.  They found that appellate judges cited prosecutorial misconduct in 700 cases, and that in 202 cases the misconduct caused a reversal or new trial. 107 prosecutors were found to have committed misconduct more than once, two were cited for misconduct four times, two were cited five times and one prosecutor was cited for misconduct six times. Prosecutors who committed misconduct in multiple cases accounted for nearly one-third of all cases of misconduct. Yet only six disciplinary actions in the ten year period were for prosecutorial misconduct, and the courts found misconduct in less than 1% of the cases.

In criminal cases, unlike civil cases, prosecutors do not need to turn over all evidence. Instead it is entirely up to the prosecutor to decide which evidence would help clear a defendant from guilt (obviously they would share condemning evidence so that isn’t an issue). There are, of course, plenty of cases where prosecutors purposefully conceal evidence, but there are also unintentional instances too. As it is supposed to be up to the courts to interpret and test any pertinent evidence, not an individual, it is shocking how much incidental power a prosecutor wields in the producing of evidence.

On May 3rd of this year the, the Washington Post reported that Jerry Goren, a prosecutor, withheld evidence in the trial of six young men convicted of sexually abusing and beating to death a woman in 1985. After interviewing more than 400 witnesses, Goren decided to withhold from the court the account of witnesses who identified two different people from the defendants on trial as being in the alley with the woman. Some of these withheld witnesses identified the other assailants by name. What’s worse, one of the men identified by name had a record of assaulting women in that very neighborhood.

Goren dismissed the witnesses’ accounts believing them to be incorrect, and he was not legally incorrect by doing so. He also did not disclose evidence about one of his key witnesses who had lied to authorities about a suspect’s whereabouts at the time of the killing before taking the stand. In instances like this Goren, and other prosecutors, remain within legal bounds if they can justify that this evidence was not exculpatory (freeing the defendant from guilt) in anyway.

“Since they have better investigative tools than defense lawyers, prosecutors must turn over exculpatory evidence. Of course, there’s often a big difference between what prosecutors think they need to disclose and what defense attorneys say should be disclosed,” wrote a lawyer from the Crowell and Moring firm addressing this same case in a Washington Post opinion piece.

This 1985 case was reopened, because two important witnesses recanted their testimony. The witnesses claimed they were pressured by detectives and the prosecutor to admit their guilt and then were given plea bargains to testify against the others convicted. Although it is not uncommon for witnesses to recant their testimony because of guilt they feel for participating in someone else’s conviction, the practice is still troubling. Detailing the biases and abuses of power of prosecutors and detectives when forcing favorable testimonies hardly seems necessary.

Still prosecutors often rely on these crooked testimonies and in-custody informants to build their cases. Prosecutors can propose plea bargains that grant incentives like reduced jail time to these informants. Clearly this establishes motivation for these witnesses to lie on the stand. Juries, judges, and defense teams are also not afforded vital information about the agreement reached with an in-custody witness, the witness’ background, or how many times the witness has testified previously. Using pressure and plea bargains is another way judicial power is brought outside the bounds of the courts and into the hands of prosecutors.

Berger v United States is an early landmark case in prosecutorial evidence misleading. The prosecutor’s conduct in this case was described by the Court as being an, “evil influence,” and, “calculated to mislead the jury.” The false or misleading evidence that the prosecutor presented included: misstating facts during cross-examination; falsely insinuating that witnesses said things they had not said; representing that witnesses made statements to the prosecutor personally out of court when no proof of this was offered; pretending that a witness had said something that he had not, persistently cross-examining him on that basis, and assuming prejudicial facts not in evidence. Typically these early influential cases become precedent. Precedent generally holds some power over the courts, and indeed this case is often referred to during cases of prosecutorial misconduct. But this precedent has still done very little in the way of healing our country from this malady.

Other common forms of prosecutorial misconduct include courtroom misconduct, mishandling of physical evidence, and improper behavior during grand jury proceedings.

Courtrooms were designed to host an assembly of unbiased members who could make unbiased decisions. This is only possible if the opposing forces in the courtroom are balanced against each other. Our current system bestows nearly limitless power to the prosecutor. If prosecutors are able to retain their extensive powers, and if they are allowed to overstep the impotent checks and balances set against them, then America's predilection for an unbiased courtroom cannot be realized. Transparency of all evidence and witness information along with a board equipped with a real power of prosecutorial review and a real power to reprimand, disbar, and pursue criminal charges against prosecutors committing misconduct would greatly benefit the judiciousness of court cases, and by extension, this country.