John Terzano - The Justice Project's Blog

Changing the "Convict at All Costs" Culture of Prosecutor's Offices

2009-11-23T13:58:07Z

All too often, prosecutors' offices fall prey to a culture of conviction-seeking at all costs. Prosecutors who become singularly focused on conviction rates often neglect their ethical duty to protect the innocent and guard the rights of the accused. The Kern County District Attorney's Office in California provides a clear example of this pitfall, boasting that under District Attorney Ed Jagels' supervision, the office "has had the highest per capita prison commitment rate of any major California County." What the office fails to highlight is the startling twenty five wrongful convictions that the office has accrued during Jagels tenure as District Attorney. Jagels recently announced his retirement, and despite his appalling record, he hopes to personally select his successor.

The troubling culture apparent in the Kern County office is not the exception. Due in large part to the public pressure to convict and the widespread failure of state bars and disciplinary agencies to hold prosecutors accountable for ethical violations, this culture of "convict at all costs" is a nationwide problem. ]]> With the unique role as both advocates and ministers of justice, prosecutors are the most powerful actors in our justice system. Prosecutors have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Yet despite their power, they are rarely held accountable for violating their ethical obligations. This lack of accountability promotes the problematic culture that plagues prosecutors' offices and contributes to wrongful convictions.

The pervasive culture of conviction-seeking in prosecutors' offices must be tempered by an overriding goal of justice. The Justice Project's policy review, Improving Prosecutorial Accountability outlines suggested reforms that can help create a culture that values fairness and accuracy over high conviction rates. For example, prosecutor's offices should establish training programs and official office policies on the prosecutor's duty to disclose evidence to the defense and the proper use of prosecutorial discretion. Furthermore, prosecutors who intentionally abuse their power to secure a wrongful conviction must be investigated and disciplined for their actions. The Justice Project also recommends that jurisdictions recognize the unique role of prosecutors through the establishment of prosecutorial review boards with the power to investigate and sanction prosecutors who perpetrate acts of misconduct. Enacting these reforms will foster a more ethical culture in prosecutors' offices and increase transparency in prosecutorial decision-making.

Creating a culture of accountability in prosecutors' offices is critical to ensuring the fairness and accuracy of our justice system. Establishing training manuals and office procedures as well as implementing disciplinary measures provide the means of achieving such a culture. These measures will encourage prosecutors to better fulfill their simultaneous and critical roles of convicting the guilty and protecting the innocent.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system. To learn more about John and the work of The Justice Project, connect with TJP on Facebook or follow TJP on Twitter.

Prosecutors Must be Held Accountable for Misconduct

2009-11-04T13:56:43Z

Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.

Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct. ]]>
No matter the outcome of this particular case, it is yet another example of why it is so important for states to enact reforms to ensure that prosecutors who abuse their powers are held accountable for their actions. The Justice Project's policy review, Improving Prosecutorial Accountability outlines suggested reforms such as the establishment of prosecutorial review boards to sanction prosecutors who abuse their power within the criminal justice system. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions, which threatens our public safety and the integrity of our criminal justice system.

Implementation of disciplinary measures that create a culture of accountability will result in a more fair and accurate justice system. Such measures will also encourage prosecutors to better fulfill their multiple and critical roles of convicting the guilty, protecting the innocent and guarding the rights of the accused. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the egregious acts of prosecutorial misconduct that threaten our criminal justice system will only continue.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Tim Cole Panel Begins Study Texas Wrongful Convictions

2009-10-13T13:32:49Z

Texas has had more than its share of tragic wrongful convictions. Of the more than 40 people exonerated by DNA in Texas, one of the most heartbreaking cases is that of Timothy Cole. Cole was wrongly convicted in 1986 for a Lubbock rape. DNA testing conclusively exonerated him last year and identified the true perpetrator. But the exoneration came too late. In 1999, Cole died in prison of a severe asthma attack, an innocent man.

So far, Texas has been slow to respond to the long list of mistakes that exist in each of these wrongful convictions. These mistakes have forced innocent people to spend over 500 years in prison for crimes they did not commit. But that may be about to change. Last May, the Texas Legislature approved a bill creating the Timothy Cole Advisory Panel on Wrongful Convictions, and directing the Texas Task Force on Indigent Defense to work with the panel on a report on needed reforms to prevent wrongful convictions. The Cole Panel's inaugural meeting is slated for today.
]]> Fortunately, a great deal of work has already been done by similar state commissions across the country. It is remarkable, if not surprising, that most such inquiries have identified the very same sources of error, and have developed a remarkable consensus on what reforms are needed to reduce the risk of convicting the innocent.

The problems are well known. Eyewitness error is, by far, the leading cause of wrongful convictions. Invalid forensic testimony, false confessions elicited in undocumented interrogations, and witnesses with incentives to lie are also common causes for wrongful convictions. Finally, bad lawyering in the form of prosecutorial misconduct and ineffective assistance of defense counsel has too often undermined justice.

Just as no one disputes the factors that lead to error, there is also a remarkable consensus among those that have studied wrongful convictions on what is needed to fix the system. New, more accurate lineup procedures ensure a more objective assessment of witness memory and better documentation, leading to more reliable identification testimony. Electronically recording interrogations of suspects provides a reviewable record for judges and juries that allows for a more accurate assessment of voluntariness and reliability thereby eliminating disputes about what took place in the interrogation room. Subjecting in-custody informant testimony to greater scrutiny and transparency would help keep unreliable testimony out of court. Creating more accountability mechanisms for prosecutors who step over the line of fairness would fix a system that too often turns a blind eye on misconduct. Finally, continuing to move Texas toward public defender systems of indigent defense that include robust performance standards, reasonable caseloads, and professional development and support make sure that courtroom contests are fair and more accurate.

Given the track record of wrongful convictions in Texas, the Cole Panel is a good idea in addressing wrongful convictions, but it is only the beginning. The members of this study group must help all criminal justice stakeholder groups become aware of the issues and build support for common sense change.

No bureaucracy accepts change easily, and our criminal justice institutions are no exception. But they can do much better. All the parties, police, prosecutors, judges and defense lawyers, need to recognize that reforms will enhance the accuracy of our system, and will generate better, stronger evidence against the guilty, while protecting the innocent.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Two More Exonerations Stress the Need for Credible Evidence

2009-10-12T13:02:09Z

Two more innocent men have been freed from death row. Just last week, Yancy Douglas and Paris Powell became the 137th and 138th people to be exonerated from death row. The two men were convicted of a drive-by shooting in 1993 based on the testimony of an in-custody informant who had been offered leniency from the prosecution. The prosecutors at trial withheld information about this plea-deal from the defense, which resulted in a new trial. All charges against the two men have now been dropped because of the unreliability of the in-custody informant's testimony, the only evidence that linked Douglas and Powell to the crime.

These exonerations highlight the power prosecutors have in securing convictions by utilizing in-custody informant testimony, even when no physical evidence links a defendant to the crime. Testimony by in-custody informants or "jailhouse snitches" as they are often referred, is a leading cause of wrongful convictions. ]]>
The exonerations of Douglas and Powell demonstrate, yet again, the very real threat of false testimony and the strong need for corroborating evidence to ensure that accurate and credible testimony is presented to juries in criminal trials. The fairness and accuracy of our justice system is at stake when jurisdictions do not require mandatory, pre-trial disclosures of all incentives given to in-custody informant witnesses, as recommended in In-custody Informant Testimony: A Policy Review.

Unfortunately, Douglas and Powell are not alone in their experiences with a prosecution that withheld important evidence. Such acts are the most common type of prosecutorial misconduct that leads to wrongful convictions. The flawed trial that led to the wrongful convictions and death sentences of Douglas and Powell, along with the cases of the 136 death row exonerees before them, again highlight the urgent need for reform to address the common causes that lead to wrongful convictions. As exonerations continue to occur throughout the country, it is abundantly clear reform is needed to stem the tide of wrongful convictions and begin to restore credibility, fairness, and accuracy to our criminal justice system.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Texas Cannot Wait for Good Science in the Courtroom

2009-10-09T12:54:55Z

Last week, Texas Governor Rick Perry removed three members from the Texas Forensic Science Commission. The changes come at a critical juncture in the investigation of the flawed forensics behind the conviction of Cameron Willingham, who was executed in 2004 for allegedly setting the fire that killed his three daughters.

Governor Perry's removal of these three members from this commission has drawn national attention and sharp criticism because there is concern that his appointed replacement of the commission chair, John Bradley, may slow or stifle the investigation. Bradley has already cancelled a scheduled meeting on October 2, where the commission's retained fire expert, Craig Beyler, was to present and discuss his report. Beyler's report, released to the media under public information laws, confirms findings from three other expert reviews: that the arson evidence in the Willingham case was without scientific validity.

The canceled meeting is not the only casualty of this drastic change. Commission members have also decided to postpone a series of important roundtable discussions focused on a recent report of the National Academies of Science (NAS) about serious weaknesses in the nation's forensic systems because of the distractions caused by the shakeup.

]]> Against the backdrop of an intense gubernatorial primary battle between Governor Perry and Senator Kay Bailey Hutchison, Perry's critics have pointed to the appearance that political considerations are behind the move to replace the commissioners, especially given the absence of any substantive reasons from the governor for the changes.

In the middle of the subsequent media firestorm, and with competing agendas in play, it is easy to lose sight of why the Texas Forensic Science Commission and its investigations are so important. This is ultimately not about politics or the death penalty. At stake is the integrity of scientific evidence in Texas courtrooms, and the erosion of public confidence in its criminal justice system that occurs when that science is unreliable or flat wrong.

Willingham's case is a troubling example of the kinds of forensic failures documented in the NAS report. Thousands of criminal cases will proceed this year in Texas and across the country in which forensic evidence will play a crucial role. But just as scientific evidence is increasingly relied upon, we are learning that that evidence is coming out of a system that, according to the NAS, is "badly fragmented," and lacks the oversight, independence, objectivity and quality standards needed to ensure reliability. Many issues identified in the NAS report are explored in The Justice Project's policy review, Improving the Practice and Use of Forensic Science.

The sooner Texas comes to a full reckoning with the problems in the Willingham case, the sooner we can begin to develop the kinds of oversight systems that can prevent bad science from undermining justice. The job of the Forensic Science Commission is first and foremost to investigate allegations of forensic negligence or misconduct. But its true value is not in looking back. It must look back in order to confront mistakes so that we can improve reliability moving forward. Until we put in place appropriate oversight and safeguards, innocent defendants will be at risk of conviction based on flawed forensics.

All of the Forensic Science Commissioners, including the three replaced by the governor, have done an excellent job serving the state. They have proceeded methodically, with great caution and with the highest regard for fairness and duty. After years of delay in getting the commission funded, these public servants had finally begun to conduct the business they were asked to. It is troubling that the commission's work is now derailed when they are finally poised to deliver on their mission.

Governor Perry and the new chair of the Forensic Science Commission have the chance to prove their critics wrong: the governor, by filling the remaining vacancy quickly, and the new chair, by promptly resuming the commission's business, without regard to politics or hot button issues, but solely in the service of science, truth and justice.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Study of Georgia's Wrongfully Convicted Highlights Powerful Need for Reform

2009-09-22T13:54:06Z

Twenty innocent men spent almost 170 years in prison in Georgia for crimes they did not commit. What does eight years mean to you? For these twenty innocent Georgians, eight years is the average length of time each spent behind bars for a crime they did not commit. Just as it is true in exonerations nationwide, mistaken eyewitness identification is the leading cause of Georgia's wrongful convictions.

Clearly, mistaken eyewitness identification is problem in Georgia. Eyewitness evidence, much like physical evidence, is highly subject to contamination and must be collected carefully according to scientific protocols. Without clear, written policies and procedures that instruct law enforcement agencies on the best practices for photo and live lineups, mistakes will continue to be made. And lives will continue to be destroyed.

]]> Convicting the Innocent in Georgia: Stories of Injustice and the Reforms that Can Prevent Them highlights thirteen cases of wrongful conviction in Georgia that caused twenty men to collectively spend nearly 170 years in prison. By studying their exonerations and detailing the reoccurring problems that lead to wrongful convictions, the report identifies specific, practical reforms to increase the fairness, accuracy, and reliability in Georgia's criminal justice system.

Robert Clark spent twenty four years in prison after he was falsely convicted of rape, kidnapping, and armed robbery. Calvin Johnson became the first DNA exoneree in Georgia in 1999 after spending sixteen years in prison for a crime he did not commit. Jerry Banks spent six years on death row as a result of inadequate legal representation and prosecutorial misconduct. While the events that have led to the tragedies of these stories cannot be changed, Georgia can implement reforms that will help prevent such tragedies and improve the fairness and accuracy of its criminal justice system.

It is time for Georgia to take the necessary steps to prevent these errors from occurring in the future. The people of Georgia deserve it.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

The Costs of Wrongful Convictions Continue to Rise

2009-08-25T12:23:23Z

Last week, the San Jose Mercury News reported that Jeffrey Rodriguez, a man from San Jose who spent five years in prison for a crime he did not commit, was awarded a $1 million settlement from Santa Clara County for his wrongful conviction. Jeffrey's wrongful conviction and his subsequent settlement is not a unique story in Santa Clara: since 2005 the county has paid more than $4.6 million in settlements for wrongful convictions by the District Attorney's office. Nor is Jeffrey's story unique to the state of California. Earlier this month a Louisiana circuit court of appeals upheld a $14 million jury settlement against the Orleans Parish DA for misconduct resulting in the wrongful conviction and death sentence of John Thompson.

Like clockwork, wrongful convictions continue to occur at the hands of a system that is prone to error. In addition to the unconscionable act of incarcerating a person for years for a crime they did not commit, wrongful convictions impose an enormous financial burden on taxpayers. Year after year, month after month, the criminal justice system must pay for its mistakes.

]]> In this economic climate, can states really afford to have a criminal justice system prone to dangerous, costly errors? The answer is no. Especially when the source of these errors--which are accounted for in The Justice Project's policy reviews--are well known and well-documented, and when there are cost-effective, common sense solutions to the causes of wrongful convictions.

But states can take action right now to prevent the injustices mentioned above. For example, one of the leading and most troubling causes of wrongful convictions, and the source of all the faulty verdicts mentioned above, is prosecutorial misconduct and suppression of evidence. As detailed in The Justice Project's policy review, Improving Prosecutorial Accountability, prosecutors are rarely held accountable by the state bar or state disciplinary authorities for intentional or unintentional errors that cost innocent men and women their freedom. One cost-effective measure states can take to prevent future wrongful convictions is to launch investigations and issue sanctions where appropriate against prosecutors who, by withholding important evidence from the defense, are responsible for hindering fair and accurate verdicts.

When the causes of wrongful convictions are well-known and well-documented, a failure to utilize this critical information and enact reforms will only lead to more inaccurate verdicts in our courtrooms. Without action, we will continue to hear stories of innocent people languishing in prison, and, just as they've had to do in New Orleans, Louisiana and Santa Clara, California, taxpayers will continue to shoulder the financial burden of the criminal justice system's costly errors.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Sonnier's Release Highlights Continuing Problem

2009-08-11T13:12:46Z

Another innocent man is free in Texas. Ernest Sonnier was released from custody on Friday after DNA testing implicated two different men in the 1986 rape for which Sonnier was convicted. Sonnier has spent twenty-three years in prison, always maintaining his innocence.

The release of Ernest Sonnier is just the latest case that highlights the ongoing problem of wrongful convictions in Texas. In May, Jerry Lee Evans was freed after DNA testing proved another man committed the crime. He spent twenty-two years in prison. And in March, The Justice Project published Convicting the Innocent: Texas Justice Derailed, which highlights thirty-nine other cases of wrongful conviction in Texas.

]]> Like many other wrongful conviction cases, Sonnier's conviction was based on the faulty testimony of a forensic analyst. Blood type testing completed shortly after the crime showed no trace of Sonnier's blood type. But the analyst never mentioned this at trial, instead testifying that the lack of evidence pointing to Sonnier was simply a result of circumstances of the crime. Knowing that the prosecution was looking for a conviction, this analyst created a new theory of the crime that did not match the evidence or any of his notes.

Ernest Sonnier was another victim of the Harris County crime lab. Inaccurate evidence, improperly conducted testing, and erroneous testimony have caused at least seven men to spend time behind bars for crimes they did not commit. Earlier this year, the National Academy of Sciences (NAS) published a report calling for, among other things, funding to assist all forensic laboratories in the states to become independent from law enforcement agencies. Only when crime labs are independent from the state can we expect a more fair and unbiased examination of forensic evidence. Independence will help deter analysts from feeling like members of the "crime fighting team," and will help to assure that the most accurate evidence is being presented at trial.

Ernest Sonnier's release is just another reminder of the continuing struggle we face as we attempt to fix our nation's broken criminal justice system. Problems with our nation's forensic science labs continue to emerge, and until serious reforms are enacted, innocent people will still be in danger of wrongful convictions.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

When Will Prosecutors Begin to be Held Accountable for Their Misconduct?

2009-07-28T12:41:17Z

One of the most troubling trends that foster prosecutorial misconduct is the failure of state bar and disciplinary agencies to take action against prosecutors who violate their ethical obligations.

Earlier this year, Attorney General Eric Holder and the Department of Justice (DOJ) took swift and almost unprecedented action after uncovering egregious prosecutorial misconduct in the case against Alaska Senator Ted Stevens. Holder promptly dismissed all charges against the Senator, and federal judge Emmet Sullivan ordered an independent, criminal investigation of the prosecutors responsible for intentionally failing to turn over important, exculpatory evidence to the defense. The DOJ has also promised an investigation through the Office of Professional Responsibility. The question now is whether these particular prosecutors will ever be held accountable.

]]> To prevent prosecutorial misconduct and these egregious abuses of power, it is critically important to appropriately investigate and discipline prosecutors who violate their legal and ethical obligations. Far too often, even in egregious and high profile cases, like Stevens' case, prosecutors are not held accountable for their misconduct. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions. We have yet to see whether the two separate investigations launched against the federal prosecutors in Stevens' case will be followed by appropriate disciplinary action.

The prosecutorial misconduct involved in Senator Stevens' case is especially egregious. The case was marred by prosecutorial misconduct from the outset. Judge Sullivan repeatedly criticized prosecutors for failing to follow orders to provide evidence to the defense. In addition, prosecutorial misconduct at trial led Judge Sullivan to hold three of the prosecutors in contempt, and at one point also instructed the jury to disregard some evidence provided by the prosecution. After replacing the original trial team, new prosecutors discovered even more evidence that should have been turned over to the defense. Even more troubling, lead prosecutor Brenda Morris has a history of prosecutorial misconduct. In 2005, Morris' unlawful prosecution of an Austin, Texas area defense attorney resulted in a civil suit and a $1.34 million dollar settlement from the federal government. The investigation of Morris' conduct in that case yielded no apparent sanctions and she remained employed by the DOJ and was eventually given a lead role in the Stevens prosecution. The DOJ's failure to appropriately respond to Morris' previous misconduct as well as her actions and those of the other prosecutors in the Steven's case, demonstrates that a culture has developed within the DOJ's Public Integrity Unit in which prosecutorial abuses of power occur.

Three months after Eric Holder dismissed the case against Senator Stevens, the country continues to wait and see whether the most well-funded, highly respected, and highly trained prosecutorial agency in the country, the DOJ, will hold its own accountable. There is an opportunity here to begin to show that even DOJ prosecutors are not above the law.

Prosecutors are the most powerful actors in our criminal justice system. Failure to respond to abuses of power is an enormous threat to public safety and to the integrity of our criminal justice system. Effective and meaningful prosecutorial accountability in this country can start, and should start, with discipline of the prosecutors who violated their duties and betrayed public trust in the prosecution of Senator Stevens.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

False Confessions: What would it take to make you confess?

2009-07-14T12:48:53Z

Why would anyone confess to a crime they did not commit? What would it take to get you to confess to a crime? For Christopher Ochoa, it took twenty hours of questioning and badgering and threats to get him to falsely confess to the murder of a woman in Austin, Texas. As a result, he spent twelve years in prison for a crime he did not commit.

Most people find it hard to understand how anyone could ever confess to a crime they did not commit. But it happens over and over again. False confessions are a well-documented reality, especially among vulnerable populations like juveniles and the mentally-impaired. Of all the DNA exonerations nationwide, false confessions occur in over 20 percent of them.

Last week, two major newspapers highlighted two different cases where the confessions of the defendants had been called into question. ]]> New York Times, Michael Scott and Robert Springsteen were released in late June after new DNA evidence from an unknown individual cast doubt on their confessions in the murders of four teenage girls in Austin, TX. Attorneys for both men claim the confessions were the result of police coercion and misconduct. As reported in the Chicago Tribune, Ronald Kitchen spent twenty-one years in prison following a confession he made about the murders of five people. After allegations of abuse and torture on behalf of the officer responsible for securing the confession surfaced, his case was turned over to the Attorney General's office to re-investigate. Kitchen was released when prosecutors dropped all charges against him because they found no evidence he was involved in the crime.

To a jury or judge, a confession is an incredibly powerful piece of evidence. It can overwhelm evidence pointing to a defendant's innocence, and judges and juries will sometimes convict an individual based on a confession alone. Given the weight of this evidence, special care must be taken to ensure that confessions are accurate.

How can we prevent against false confessions? States can adopt a policy that requires law enforcement officers to record custodial interrogations, from the delivery of a suspect's Miranda rights to the end of the interview, without interruption. Electronic recording of custodial interrogations has emerged as a powerful innovation and fact-finding tool for both sides of the criminal justice system. It helps protect innocent suspects and helps convict the guilty.

When interrogations are recorded, officers are free to study the suspect's reactions instead of scribbling notes. Judges and juries are able to see exactly what took place during the interrogation, allowing them to more effectively weigh the evidence. In addition, recording can protect officers from false claims of abuse or coercion and provide an excellent tool for training new officers on proper interrogation techniques. Ultimately, recording is in the best interest of all parties - the defense, the prosecution, and the public - that strong safeguards exist to protect against wrongful imprisonment and reduce the number of convictions overturned on appeal.

Many detectives and prosecutors enthusiastically embrace electronic recording. Over 450 police and sheriff's departments across the country have independently adopted recording procedures. Unfortunately though, only ten states have statewide laws that require electronic recording. The virtue of electronic recording of custodial interrogations lies not only in its ability to help guard against false confessions, but also in its ability to develop the strongest evidence possible to help convict the guilty. Electronic recording incurs minimal costs to the state in terms of implementation, and when compared to the human and monetary costs of wrongful convictions, it is a sound policy. Every state has a responsibility to protect the life and liberty of its citizens. Electronic recording is a simple reform that can help states live up to that responsibility by helping to create a more fair and accurate criminal justice system.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Texas Case Highlights Problems in forensics lab

2009-06-23T12:34:29Z

George Rodriguez is seeking justice. In 2004, DNA testing exonerated Rodriguez for the 1987 abduction and sexual assault he had been convicted of seventeen years earlier. During his trial, a Houston Police forensic analyst testified that biological evidence pointed to Rodriguez's guilt; it was later discovered that the analyst lied. Rodriguez is one of forty individuals exonerated by DNA in Texas, and one of six exonerated in Harris County. Read more about DNA exonerations in Texas.

A trial is now underway in Rodriguez's civil lawsuit against the City of Houston, and the city is claiming that there was nothing it could have done to prevent the misconduct of their lab analyst, whose lie led to Rodriguez's wrongful conviction. Houston city attorney Arturo Michel stated:

"I think what you have here is a person who was simply not honest and it doesn't matter how many funds you put into something, how good a program you have, that cannot guard against a person's dishonesty."

]]>
Forensic science is not flawless, and its use in the criminal justice system is in great need of reform. To ensure a more fair and accurate criminal justice system, it is critical to improve the reliability, objectivity, and independence of forensic analysis and forensic expert testimony in criminal investigations and trials. Last year, the Justice Project published a policy review that outlined policies for improving the quality of forensic evidence. One of the central recommendations was the need to create forensic labs that were independent of law enforcement and prosecutorial agencies. Earlier this year, the National Academy of Sciences (NAS) echoed The Justice Project's recommendations in their report, Strengthening Forensic Science in the United States: A Path Forward, in which they recommended, among other things, funding to assist all forensic laboratories in the states to become independent from law enforcement agencies. With nearly all state forensic labs under the jurisdictions of police departments or the attorney general, analysts may come to see their role as part of the "crime-fighting team" rather than as neutral and objective agents of science. This bias hinders justice. Just ask George Rodriguez. His attorney is arguing that the analyst in Rodriguez's case had a habit of altering findings to match the theories of the police and prosecution.

Of course, structural independence of the labs is only one needed step. Because we know the risks of both misconduct and inadvertent bias, we should make sure that labs have appropriate internal safeguards to regulate the flow of information between analysts and police and prosecutors. By providing forensic analysts only with discreet forensic questions and limiting unnecessary contextual information about the crime, we can help ensure that the most accurate and reliable evidence is presented in the courtroom.

Forensic labs provide critical evidence in countless cases, but without the proper safeguards, evidence can be misused and misinterpreted with disastrous consequences. All of us have a vested interest in making sure the necessary reforms are implemented to make forensic evidence as accurate and reliable as possible.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Lack of Consistency Leads to Lack of Justice

2009-06-09T13:00:05Z

The continued lack of standard policies in the states for post-conviction DNA testing is troubling. It is time for states to act. With so many exonerations across the country proving that our criminal justice system is broken, post-conviction DNA testing offers the unique opportunity to correct mistakes and help make our criminal justice system more fair and reliable. Public safety is served when the correct person is held responsible for his or her crimes. Post-conviction DNA testing helps boost the public's confidence in the accuracy and reliability of the criminal justice system. Yet, few states have adopted standards and prosecutors often fight to deny access to such testing.

]]> District Attorney's Office v. William G. Osborne, where the Court addresses the issue of whether a prisoner has a right to post-conviction DNA testing. In recent weeks, the New York Times and Boston Globe have highlighted cases in which prosecutors are resistant to allowing inmates access to DNA testing that may prove their innocence. Each of these cases represents an opportunity for states to step forward and adopt standardized procedures.

Only thirteen states follow the model laid out in the Innocence Protection Act (IPA), which provides federal funding to states that enact laws for access to testing and preservation of biological evidence. Passed in 2004, the IPA proposed a uniform national standard for access to DNA testing. If all states adopted the IPA model, which would standardize procedures for obtaining access to post-conviction DNA testing, the criminal justice system would be fairer and more reliable.

For example, The Justice Project recently released a report on thirty-nine DNA cases of wrongful conviction in Texas. Collectively, these thirty-nine innocent men served almost 500 years for crimes they did not commit. The report, Convicting the Innocent: Texas Justice Derailed, highlights their cases and in many cases shows the difficult process many of them had to navigate to obtain access to post-conviction DNA testing. Often times, it is through a series of miracles that innocent people have been able to obtain DNA testing. Standardized procedures contribute to a more accurate and fair criminal justice system.

Without the commitment of state leaders, the discussion about post-conviction DNA testing will simply remain a discussion. States need to recognize the value of post-conviction DNA testing in allowing the innocent a claim for relief. In 2004, the federal government passed the IPA to protect the innocent and help make the criminal justice system more fair and accurate. All states should follow suit.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Missed Opportunities in Texas

2009-05-27T15:37:14Z

Last night, as the Texas House of Representatives hit the deadline to consider Senate bills, the state lost the opportunity to act on a host of important legislative initiatives, including several significant criminal justice reform bills. A partisan meltdown over a bill requiring photo identification for voters led to parliamentary maneuvering and delay. SB 116 and SB 117 would have demonstrated Texas's increasing commitment to a more fair and accurate criminal justice system. Instead, these bills now represent two missed opportunities for justice in Texas.

SB 116 states that, when practical, police should electronically record custodial interrogations in their entirety from the Miranda warnings forward. The Justice Project's policy review on recording interrogations highlights the use of electronic recording as a vital tool to help protect the innocent as well as convict the guilty. If passed, SB 116 would have put the legislature on record in support of this important policy, and provided leverage for pushing police departments to implement recording policies. ]]> SB 117, which would have required every police agency in the state to adopt detailed written procedures for the conduct of photo and live lineups based on scientifically sound best practices. In 2008, The Justice Project released a report that found that only 12% of Texas law enforcement agencies have any written policies or guidelines for the conduct of photo or live lineup procedures. The report also found that eyewitness misidentification played a role in 82% of 38 DNA exonerations in Texas. SB 117 would have helped to improve the quality of evidence in Texas courtrooms.

All indications are that these bills would have passed handily had they come to a vote. Sponsors of this innocence protection legislation are scrambling to find another live bill that could be amended to include these key bills, but legislative rules strictly limit those opportunities. These bills were just two among many initiatives, both Democratic and Republican, that became casualties of this partisan meltdown.

While these missed opportunities are discouraging, the House did pass SB 1681 last week. SB 1681, which was sent to Governor Perry last Friday, would require all testimony given by jailhouse informants to be corroborated by other evidence. As outlined in The Justice Project's publication, In-custody Informant Testimony: A Policy Review, unregulated in-custody informant testimony compromises justice and leads to unreliable results. By requiring higher scrutiny and transparency of informant testimony, states will improve the quality of evidence presented at criminal trials and ensure that judges and juries are able to make informed decisions about the trustworthiness of informant testimony.

The success of SB 1681 is commendable, but its fate is still uncertain. Governor Perry's signature is needed to turn this important step toward a more fair and accurate criminal justice system in Texas into law.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

How Can We Hold Prosecutors Accountable for Misconduct?

2009-05-12T12:22:34Z

Prosecutors are rarely held accountable for acts of misconduct or abuses of power in our country. Yet another example of this reality comes from a case out of Florida, where prosecutors engaged in egregious, intentional courtroom misconduct throughout the trial. The Third Circuit Court of Appeals ultimately upheld the conviction in the case because they found that the misconduct did not affect the outcome of the trial.

The law provides judges with tools that guide them to weigh prosecutorial misconduct against the facts of a case to determine whether the misconduct was severe enough to affect the outcome of the trial. Regardless of what appellate courts decide (i.e., to uphold the conviction or remand it for retrial), the simple truth is that misconduct has occurred. Unfortunately, the system does not provide judges with tools to guide them on how to address acts of prosecutorial misconduct. While defense attorneys, fellow prosecutors, and judges are ethically obligated to report acts of misconduct by prosecutors to the proper disciplinary authority, this reporting rarely happens. When prosecutors do face disciplinary proceedings, meaningful sanctions are uncommon and rarely go further than a public censure.

As a result, prosecutors can predict how much misconduct will be tolerated by the system before a case even goes to trial. As long as the misconduct doesn't prejudice the outcome of a trial to the point that a conviction is reversed, the misconduct will slip through the cracks and the prosecutor will not face any consequences.
]]> his dissenting opinion that, "over the years, it has been my unfortunate experience to see a long procession of assistant State attorneys repeatedly violate clear precedent in their zeal to convict." He also makes clear his intention to publish the names of the prosecutors in the Southern Reporter--a rare move considering many judges often actively withhold the names of offending prosecutors from their published opinions.

Unfortunately, the prosecutors in the Florida case will likely face little or no punishment for their misconduct. As explained in The Justice Project's recent publication, Prosecutorial Accountability: A Policy Review, when reviewing claims of prosecutorial misconduct, appeals courts must abide by the "harmless error" rule, in which a conviction must be upheld if the evidence against the defendant is strong enough--regardless of the misconduct committed by prosecutors. As a result, the convictions in the vast majority of prosecutorial misconduct cases are upheld, seldom resulting in reversals or modifications of convictions.

Appellate judges' have their hands tied by the harmless error rule, and even if they do identify prosecutors by name, as Justice Ramirez intends to do in the Florida case, or report the misconduct, state disciplinary authorities typically do not effectively respond to prosecutorial misconduct.

Why not create mechanisms to hold prosecutors accountable for all acts of misconduct--harmless or not? The Justice Project's policy review recommends jurisdictions establish prosecutorial review boards responsible for investigating all allegations of misconduct and imposing sanctions. In order to ensure the review board is aware of all allegations of misconduct, our policy review also recommends jurisdictions statutorily require trial and appellate judges to report acts of misconduct, regardless of whether the misconduct was deemed "harmless error."

With such a review board in place, appellate judges like Ramirez in the Florida case would have the tools available to them to contribute to the process of holding prosecutors accountable by reporting them to an appropriate and effective disciplinary authority. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the pervasive abuses of power and egregious acts of misconduct that exist in our criminal justice system will only continue.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

Prosecutors must be held accountable for their misconduct

2009-04-13T12:54:01Z

Prosecutors have power. They have been given that power in part to effectively ensure public safety. Yet, everyday in courtrooms across the country, prosecutors are abusing their broad powers and engaging in misconduct that can and does lead to flawed verdicts and the conviction of innocent people. It is a severe problem--it is a widespread problem. Our criminal justice system can and should do better.

Arguably the most powerful figures in the criminal justice system, prosecutors are heavily involved in the investigation of crimes; they are solely responsible for what charges, plea bargains, and sentences a criminal defendant will face; and they have complete control over what evidence will be disclosed to the defense during discovery. The responsibility of a prosecutor is not to simply seek convictions, but to seek justice. This means that, in addition to convicting the guilty, the prosecutor has a duty to protect the innocent and guard the rights of the accused. Yet within our criminal justice system there is a lack of transparency and accountability which has allowed prosecutorial abuse of power and misconduct to become common place.

]]> It is a problem at both the state and federal levels. We are all aware of the recent headlines around the Ted Stevens case, where Attorney General Eric Holder dismissed an indictment against the former Alaskan senator, citing prosecutorial misconduct as the primary reason. Just last week, Federal District Court Judge Emmett Sullivan ordered a special investigation of six federal prosecutors within the Department of Justice for their acts of misconduct in the case, including the mishandling of witnesses and suppression of important evidence. In North Carolina in June of 2007, another high profile case of prosecutorial misconduct ended in the disbarment of Durham County District Attorney Michael Nifong for suppressing evidence and making inflammatory public statements related to the prosecution of three innocent Duke Lacrosse players for rape.

While these high profile cases provide egregious examples of prosecutorial misconduct, they are not isolated incidents. There are numerous prosecutors that have committed similar abuses of power and acts of misconduct that have not been held accountable in a similar fashion and continue to practice law as prosecutors. Unlike the examples cited above, the vast majority of misconduct cases go unnoticed--prosecutors are rarely held accountable when they make egregious errors or abuse their power. Jurisdictions around the country have failed to effectively investigate or sanction prosecutors. This lack of accountability has led to widespread abuse of prosecutorial power, and a flawed and inaccurate criminal justice system.

The most common type of prosecutorial misconduct is the suppression of exculpatory evidence from the defense. Other forms include courtroom misconduct, mishandling of physical evidence, threatening or badgering witnesses, using false or misleading evidence, and improper behavior during grand jury proceedings.

Today, The Justice Project released Improving Prosecutorial Accountability: A Policy Review, which analyzes prosecutorial misconduct and presents comprehensive recommendations to improve the accountability of our nation's prosecutors. The policy review offers solutions to systemic problems that lead to prosecutorial misconduct. Among other recommendations, states are encouraged to require all prosecutors' offices to adopt and enforce clearly defined office manuals on the proper use of discretion, adopt open-file discovery in criminal cases, and establish prosecutorial review boards to investigate and sanction prosecutors who abuse their power. In addition, the policy review profiles cases of prosecutorial misconduct that led to wrongful convictions and the death sentences of innocent individuals, highlights jurisdictions that have taken steps to curtail prosecutorial misconduct, and includes a model policy.

It is time for states to take steps to ensure prosecutors are held accountable for their actions in all cases--not simply the high profile ones. The Justice Project's recommendations, if implemented by the states, would significantly improve prosecutorial accountability, which would increase the fairness and accuracy of our criminal justice system.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.