John Terzano - The Justice Project's Blog

Recording Interrogations is a Public Safety Imperative

2010-05-19T18:27:10Z

Last month, Frank Sterling was exonerated by DNA evidence after being incarcerated 18 years for a crime he did not commit. Sterling was wrongfully convicted of murdering an elderly woman in Rochester, New York in 1988. His conviction was based entirely on a false confession. In the meantime the actual killer remained free, and six years later he murdered four-year-old Kali Poulton. This tragedy leaves no question that addressing the flaws in our criminal justice system that lead to wrongful convictions is a public safety imperative. ]]> Sterling confessed to the murder after a twelve-hour interrogation that followed his 36-hour truck driving shift. Almost immediately, he recanted his confession. Police focused on Sterling from the outset because of his brother's troubled relationship with the victim years earlier. In doing so, they disregarded evidence that implicated another man, Mark Christie. Sterling had no prior criminal record; however, once the case was brought to trial the confession sealed a conviction. DNA testing later revealed that Christie was the true perpetrator.

While many find it hard to fathom, false confessions are a well-documented reality. Approximately 25 percent of the first 200 individuals exonerated by DNA evidence falsely confessed to crimes they did not commit. A confession can be the most powerful evidence at trial, and can overwhelm evidence pointing to the defendant's innocence. Electronically recording interrogations provides access to a reviewable record that helps judges and jurors clearly evaluate a suspect's statements and gives them the information they need to intelligently assess voluntariness and reliability.

Many police and prosecutors who work in jurisdictions that record interrogations have recognized that recording helps to both develop the strongest evidence and convict the guilty while protecting against false or coerced confessions which can lead investigators away from the true perpetrator. The Justice Project details the best practices for recording interrogations, and provides a comprehensive rationale for changes in procedure in the policy review Electronic Recording of Custodial Interrogations.

Hundreds of police departments around the country electronically record interrogations. Additionally, a growing list of states, including Alaska, Minnesota, New Jersey, North Carolina, New Mexico, Maine, Wisconsin and Illinois, have mandated electronic recording in order to strengthen the quality of evidence available for criminal prosecutions. Other states must join this growing list to help prevent wrongful convictions like Frank Sterling's. Modernizing police work with readily available recording technology is the best way to ensure that a false confession will not shut down a police investigation while the true perpetrator remains at large.

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

Follow John Terzano on Twitter: www.twitter.com/TheJusticeProj

Ohio Latest in Reform Trend to Prevent Wrongful Convictions

2010-04-30T19:15:43Z

On April 5th Ohio Governor Ted Strickland signed a reform bill that will help reduce wrongful convictions and improve the fairness and accuracy of our criminal justice system. Among the measures included are safeguards to improve the eyewitness identification process by requiring police to use a more accurate protocol for administering live and photo lineups. The new protocol reflects the growing awareness that eyewitness evidence is fragile, and much like trace physical evidence must be collected very carefully, or it may become tainted. ]]> Ohio joins a growing trend of states acting to prevent wrongful convictions through implementation of eyewitness identification best practices that are the fruit of decades of scientific research. A handful of states have passed bills that implement or encourage more reliable procedures. Some states, such as California and Texas, have come close, and efforts there continue. Similar legislation has also been introduced in other states from Hawaii to New Hampshire.

This encouraging trend has been a long time coming. The criminal justice system's inertia, combined with skepticism about reform ideas that come largely from scientific researchers rather than law enforcement itself, has made progress slow. Almost without fail, the objections to new procedures are based on worry about the unknown, rather than on experience. Further, some in law enforcement may be concerned that by making changes today they are implicitly admitting that they have been doing things badly heretofore.

Only in recent years, however, have law enforcement leaders been made aware of workable alternatives to traditional procedures. What is finally happening is that law enforcement is modernizing their procedures based on the latest research. It is never easy to change the settled ways of bureaucracies, and law enforcement is no different. With progress in Ohio we are seeing at long last that much needed change is coming.

To remind us of the urgent need to act, we need only look at the victims of eyewitness error that may well have been preventable: Freddie Peacock, James Bain, and Forest Shomberg. They spent years in prison for crimes they did not commit because of erroneous eyewitness testimony, yet none of the states that wrongfully convicted these men have implemented eyewitness reforms.

The reforms passed by the Ohio legislature, which mirror key reforms highlighted in The Justice Project's publication, Eyewitness Identification: A Policy Review, are based on scientific research about practices that lead to eyewitness misidentification. For example having the officer conducting the lineup be unaware of which person in the lineup is the suspect (or a functionally equivalent method) can prevent inadvertent influencing of the witness and thus improve the evidentiary value of an identification. Documenting a witness's degree of certainty at the time of identification can help address the well-documented manipulation of witness confidence due to reinforcing feedback, thus providing jurors with a clear picture of the circumstances of an identification. These and other reforms greatly improve the reliability of eyewitness evidence with only modest changes in procedure.

Fortunately, as more and more jurisdictions implement the needed reforms, their experience provides the definitive response to the worries expressed by those resistant to change. In big cities and small, from New Jersey to North Carolina to Wisconsin, the actual experience of jurisdictions that have implemented reform has demonstrated that it is pragmatic, inexpensive, and most importantly, improves the reliability of evidence in our criminal justice system. Now that we know better, failing to act to implement the reforms we know will reduce wrongful convictions becomes nothing less than reckless indifference.

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

Follow John Terzano on Twitter: www.twitter.com/TheJusticeProj

Crime Labs Need Independence and Robust Oversight to Ensure Justice

2010-04-12T19:04:06Z

San Francisco's top public defender, Jeff Adachi, recently called for the city's crime lab to become independent of the police department. This announcement comes on the heels of a series of scandals in the San Francisco Police Department's forensic laboratory initiated by the discovery that a criminalist was stealing cocaine from evidence storage facilities. What initially seemed to be a problem with one unethical employee has led to the unearthing of myriad problems within the lab, including two cases of tainted DNA samples. Moreover, a troubling audit was released showing an improper maintenance of chain of custody of evidence, inadequate record keeping, and a lack of cleanliness in the overall facility. Multiple legal challenges raised in the aftermath of the scandal, including a murder case, have pointed to the possibility that police and prosecutors withheld vital information about the drug thefts from defendants' attorneys. ]]> Adachi is right to push for an independent crime lab. The majority of publicly operated crime labs are part of a law enforcement agency. As a result, crime lab employees may come to see themselves as part of a crime fighting team, rather than objective agents of science. Given that many forensic examinations involve subjective interpretations of data, the risk for bias is greater when the lab is structurally part of law enforcement. Independent crime labs help to ensure that analysts operate an impartial environment to ensure accurate, unbiased and reliable testing. The National Academies of Science recognized these concerns when they recently recommended that laboratories become independent of law enforcement agencies.

Independence alone, however, will not guarantee objective, reliable science. Substantive and consistent oversight plays a key role in ensuring that crime labs maintain high standards of accuracy, reliability, and objectivity. Each state has a compelling interest in maintaining stringent scientific standards, and relying on private accreditation programs with infrequent site reviews does not provide the level of oversight necessary when so much is at stake.

Heightened oversight of forensic laboratories is one of the most important recommendations The Justice Project makes in its policy review, Improving the Practice and Use of Forensic Science. States need an independent oversight commission for forensic crime labs that can set and enforce quality standards and provide more rigorous, ongoing oversight of forensic testing to ensure that the labs operates with the highest scientific standards. Such a commission could ensure that all lab employees have the proper training and appropriate professional certifications. Furthermore, the commission could implement safeguards against inadvertent bias in forensic analysis which would promote the objectivity and reliability of forensic testing and analysis.

Given the increasing use and importance of forensic evidence in the criminal justice system, it is imperative that the crime labs function accurately, objectively, and reliably. Both independence and ongoing quality oversight of forensic laboratories will increase the fairness and accuracy of the criminal justice system and help reduce the risk of wrongful convictions. Forensic science can be a powerful tool. Only by implementing meaningful structural reform will we acknowledge the importance of what is at stake.

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

Follow John Terzano on Twitter: www.twitter.com/TheJusticeProj

Jailhouse Snitches Sabotage Justice with Unreliable Evidence

2010-04-01T17:50:58Z

Earlier this month, Orleans Parish District Judge Lynda Van Davis granted a new trial for Michael Anderson, who was convicted of murder and sentenced to death in a trial plagued with problematic evidence. Prosecutors have appealed the ruling and indicated that they will go forward with a retrial if necessary, so the question of Anderson's guilt or innocence is far from settled. What is clear today, however, is that his first trial was marked by prosecutors' troubling concealment of important information that undermined the credibility of key witnesses against him. Playing fast and loose with such evidence is unacceptable. In a death penalty case, it is unconscionable. ]]> Judge Davis's ruling was based on prosecutors' failure to provide a videotaped interview with the sole eyewitness that highlights significant inconsistencies in her story and put her at the scene hours after the crime. Prosecutors explained this as an oversight that was due to their several post-Katrina office moves. More disconcerting, however, was the failure to disclose what Judge Davis called "the deal of the century" given to a jailhouse snitch witness, as that failure cannot be blamed on post-hurricane logistical challenges. In her opinion, Judge Davis noted that without the inconsistent eyewitness, "Anderson's conviction is based on the testimony of three jailhouse snitch witnesses, one of which received the deal of the century that was not revealed prior to trial."

Jailhouse "snitch" and informant witnesses often provide incriminating testimony during criminal proceedings in exchange for reduced sentences or other benefits. This practice provides powerful incentives for witnesses to lie, and makes their testimony notoriously unreliable. Despite this fact, police and prosecutors often use this highly unreliable form of evidence to secure convictions. The danger of this kind of testimony is not theoretical: in-custody informant testimony is a leading cause of documented wrongful convictions and a factor in over fifteen percent of the DNA exoneration cases nationally.

Because snitch testimony is so risky, it is imperative that such evidence be subjected to careful scrutiny and safeguards. Illinois has led the way by requiring pretrial reliability hearings in homicide cases, in which the state must demonstrate that a jailhouse snitch's proffered testimony is credible before it can be presented to the jury. Other important safeguards include mandatory, automatic pretrial disclosures of information related to jailhouse snitch testimony, including witness compensation arrangements and other information bearing on witness credibility. States should also require corroboration of statements made by jailhouse snitches. The Justice Project's common-sense reforms designed to protect the system from unreliable snitch testimony can be found in In-custody Informant Testimony : A Policy Review.

There is an emerging consensus among criminal justice experts on the need for reform. Alexandra Natapoff, a leading national expert on the issue, recently published a new book, Snitching: Criminal Informants and the Erosion of American Justice, which extensively details the threat that snitch testimony poses to the criminal justice system. Natapoff also outlines the need for new safeguards to prevent snitches from undermining justice.

By improving the standards for admissibility of jailhouse informant evidence at trial, states will increase the transparency and openness of the process and help ensure that the most reliable evidence is making it into the courtroom and before the jury and will increase public faith in the 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.

Follow John Terzano on Twitter: @TheJusticeProj

Another Exoneration Demonstrates the Need for Criminal Justice Reform

2010-03-04T20:33:20Z

After seventeen years, Gregory Taylor was finally freed on February 17th when the three judge panel of the North Carolina Innocence Inquiry Commission unanimously ruled to exonerate him. North Carolina created the commission to investigate and evaluate post-conviction claims of innocence in 2006 and is the first of its kind in the United States. Taylor, wrongfully convicted of first degree murder in 1993, is the first person to be exonerated by the commission. ]]> Over 250 people have been exonerated by DNA evidence in the United States. Many others, like Taylor, did not have the benefit of DNA evidence that could clearly identify the perpetrator. These cases demonstrate the importance of keeping our courts open to all credible evidence that a mistake has been made. Unfortunately, in most jurisdictions, barriers of legal procedure too often keep similarly situated defendants from having their claims of innocence considered.

With the creation of the Innocence Inquiry Commission, the judiciary and legislature in North Carolina rightly recognized the need for a mechanism to identify wrongful convictions and exonerate individuals like Taylor who languish in prison for crimes they did not commit. In addition to taking steps to exonerate the wrongfully convicted, it is critical that jurisdictions evaluate the causes of these miscarriages of justice, and take steps to increase the fairness and accuracy of the criminal justice system. Each wrongful conviction teaches us important lessons about how the system is prone to error, and what can be done to fix it.

For example, Gregory Taylor was wrongfully convicted in large part due to inaccurate forensic testimony. Trial testimony to the effect that blood was found on Taylor's SUV near the scene of the crime on the night of the murder was contradicted by a later test conducted by State Bureau of Investigation that found no blood was present. That finding, however, was never provided to prosecutors, defense attorneys or the court. The result of that failure was devastating.

False or misleading forensic expert testimony is a leading factor contributing to wrongful convictions. The Justice Project offers recommendations and solutions for improving the practices and standards of forensic science in Improving the Practice and Use of Forensic Science: A Policy Review. The reforms recommended in the policy review are designed to implement systemic and necessary changes to the practice and use of forensic science, including the requirement that all forensic science labs develop internal structures and policies to prevent bias in testing and analysis, and to better manage the flow of information between law enforcement investigators, analysts, and prosecutors. These kinds of improvements can dramatically improve the quality and reliability of forensic evidence, preventing the kinds of errors that led to Gregory Taylor's wrongful conviction.

Each wrongful conviction evinces the urgent need to reform our criminal justice system. A fair and accurate system not only prevents wrongful convictions, it more effectively identifies the guilty and strengthens public trust in our system of 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.

Follow John Terzano on Twitter: @TheJusticeProj

Meaningful Oversight is Necessary for Reliable Forensic Science

2010-03-01T15:54:14Z

Concerns about the validity of forensic evidence have come to the fore in recent years following a series of wrongful convictions and other scandals across the country. The National Academies of Science (NAS) identified a number of systemic flaws that demand attention in their 2009 report Strengthening Forensic Science in the United States: A Path Forward. Yet today, hardly any states have laws providing meaningful oversight of the forensic laboratories that analyze crucial evidence upon which many criminal cases depend.]]> In California, this lack of lab oversight was highlighted when San Diego County sheriff's deputies began questioning test results. The errors they found eventually led to a review of hundreds of toxicology tests done by a private lab. A total of eleven people were released from jail, and at least seven of them saw their criminal cases dismissed. Mistakes such as these threaten to seriously undermine confidence in the criminal justice system.

A report released in late 2009 by the California Crime Lab Review Task Force, An Examination of Forensic Science in California, made some recommendations for improvements. For example, The Task Force highlighted the importance of requiring accreditation of forensic labs, as well as the need for forensic analysts to be certified by relevant professional organizations. The perennial need for additional funding was also emphasized. By mandating both employee certification and lab accreditation and by increasing funding, the state will improve forensic practice in the state. But the integrity of forensic evidence is too important to outsource oversight and quality standards entirely to professional trade organizations. Accreditation and professional certification are important first steps, but the responsibility for setting and ensuring quality standards, objectivity and independence ultimately resides with the state itself. A full solution will need to include more structural reform.

One of these crucial steps is the creation of an independent oversight commission, staffed and funded to more closely supervise the work of forensic labs. This type of commission could set statewide quality standards that could build on the baseline afforded by professional associations, and could provide more rigorous, ongoing oversight to ensure that labs actually operate in a way that is consistent with the standards that exist on paper. Shifting forensic labs out from under the control of law enforcement agencies would address the subtle biases that can emerge when forensic workers see themselves on the law enforcement "team" instead of dispassionate and objective scientists. These safeguards and others are outlined in The Justice Project's policy review Improving the Practices and Use of Forensic Science, and will help to ensure the objectivity and reliability of forensic testing and analysis.

Reliable forensic science is vital, and by making sure that the evidence is objective and valid, we will have a more efficient criminal justice system. Fixing these problems on the front end will reduce the chances that the state will have to spend more money and resources to correct the mistakes and injustices caused by forensic errors. At a time when California, along with the rest of the nation, is dealing with financial restraints, it is all the more imperative that legislators in all states make these improvements a priority. Forensic science can be a powerful tool, and meaningful structural reform is the only way to ensure that the best science is used in our courts.

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

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Failing to Punish Prosecutorial Misconduct Only Invites More

2010-02-24T17:05:44Z

On the last day of 2009, federal district court judge Ricardo Urbina dismissed homicide charges against five former Blackwater security guards involved in a shooting that killed fourteen Iraqi civilians in 2007. Judge Urbina's decision cites egregious prosecutorial misconduct by the federal prosecutors handling the case as the reason for the dismissal. The dismissal comes at the end of a year that saw at least a dozen cases of federal prosecutorial misconduct, including the well known Ted Stevens fiasco. These cases and others reinforce an emerging consensus that we must do more to ensure that our prosecutors live up to the standards of professionalism and fairness on which our system depends.

]]> Like the Ted Stevens case, the Blackwater case has received considerable media attention. A recent Washington Post article examined in detail the actions of the experienced and well-respected lead prosecutor Kenneth Kohl. The Post reported that despite documented warnings of a consulting prosecutor about the inadmissibility of statements made by the defendants, Kohl utilized the statements to obtain search warrants of the defendant's homes and referred to them during grand jury proceedings. Because the case was mishandled from the start, Judge Urbina was forced to dismiss the charges before a trial could take place to determine the guilt or innocence of the Blackwater guards and bring finality and justice to a sensitive and tragic case.

The prosecutorial misconduct in the Blackwater case goes to the heart of a nationwide problem described in The Justice Project's policy review, Improving Prosecutorial Accountability. In the face of enormous pressure to obtain convictions, prosecutors at the state and federal level all too often abuse their power and deliberately violate their obligations with impunity. Prosecutors' offices regularly fail to provide prosecutors with clear guidelines on the appropriate use of their broad discretionary powers, judges seldom report acts of misconduct, and when reports are made, sanctions are rarely, if ever, imposed. As a result, prosecutors face almost no incentive to uphold their legal and ethical duties when seeking convictions. Nowhere is this "convict at all costs" culture more apparent than in the actions of the federal prosecutors responsible for the Blackwater case.

It is critical for the Department of Justice to respond with a prompt investigation by the department's Office of Professional Responsibility (OPR) and appropriate sanctions for the offending prosecutors. Only through enacting an effective system of accountability can the Department of Justice--or any prosecutor's office in the nation--hope to ensure prosecutors uphold their legal and ethical obligations. In spite of promises OPR made nearly one year ago to investigate the misconduct in the Ted Stevens case and possibly impose sanctions against the prosecutors at fault, none of the prosecutors involved in that case have faced any sanctions, nor have the results of any investigation been released.

To their credit, DOJ has recently taken some measures to prevent prosecutorial misconduct through increased training and oversight of prosecutors. For example, DOJ released several memos earlier this year providing more direction to prosecutors on their obligations to disclose evidence during the discovery process. Inadvertent misconduct can be significantly curtailed through this kind of increased guidance and training at the front end of criminal cases. However, holding prosecutors accountable for the kind of intentional violations of legal and ethical obligations apparent in the Stevens and Blackwater cases can only be achieved through meaningful sanctions and effective disciplinary mechanisms.

Prosecutors are the most powerful actors in the criminal justice system; they have enormous control and discretion over the course and outcome of criminal cases. The Blackwater case reveals the far-reaching consequences that the actions of just one prosecutor can have on the fair and accurate administration of justice. In order to prevent cases like this from occurring in the future, the Department of Justice must take more steps to improve prosecutorial accountability by investigating and imposing meaningful sanctions on the prosecutors responsible for the breakdown of this important case. Failing to do so only invites more misconduct by overzealous prosecutors.

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

Follow The Justice Project on Twitter: www.twitter.com/TheJusticeProj

Forensic Lab Problems Cry Out for More Oversight and Quality Standards

2010-02-22T21:22:42Z

A spate of recent news reports has called into question the objectivity of some forensic evidence and highlighted the need for effective oversight mechanisms for the nation's crime labs. Fingerprint analysts told The Missouri Lawyer that when police officers have access to the labs, they often pressure the fingerprint examiners to secure arrests. In December, the New York State Inspector General released a report revealing that forensic analyst Gary Veeder falsified hundreds of results over a fifteen year period. The Phoenix, Arizona Police Department announced plans to investigate claims that lab technicians in the crime lab undermine the integrity of criminal investigations by leaving evidence behind at scenes and disposing of fingerprint evidence. In December, Donald Gates walked free from prison after his exoneration for a rape and murder he did not commit when it was revealed that FBI lab technician Michael Malone provided false testimony and inaccurate testing results.

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Forensic lab accreditation through organizations such as the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) is an important first step that all labs should undertake. However, the New York lab at which Gary Veeder worked was accredited by ASCLD/LAB, and yet it took over fifteen years and hundreds of result falsifications for Veeder's problematic work to be discovered. As ASCLD/LAB itself acknowledges, accreditation is only part of a "laboratory's quality assurance program". Some states are beginning to recognize the need to augment private accreditation with more ongoing oversight and additional quality standards in order to ensure that only accurate and reliable forensic evidence is utilized in criminal proceedings.

The Justice Project's policy review, Improving the Practice and Use of Forensic Science, outlines several steps states should take, including creation of an independent oversight commission to more closely supervise the work of forensic science laboratories. This commission would set statewide quality standards for all labs and would provide more rigorous, ongoing oversight of forensic testing to ensure that labs operate in a way that is consistent with the highest scientific standards. The commission would also adopt standards and regulations regarding the training and certification of all lab employees and safeguards against inadvertent bias in forensic analysis. These safeguards will help to ensure the objectivity and reliability of forensic testing and analysis.

When held to stringent, scientific standards forensic evidence can be a powerful tool for seeking justice. However, until our forensic oversight goes beyond accreditation, forensic evidence will continue to be mishandled, and jurors will be prevented from hearing reliable evidence. Placing forensic labs under the purview of an independent oversight commission will increase the fairness and accuracy of the criminal justice system and help ensure that fewer wrongful convictions occur because of shoddy forensic work. We must implement appropriate oversight and safeguards to prevent innocent defendants from convictions based on flawed forensics.

Prosecutors Must Seek Justice, Not Merely Convictions

2010-02-16T20:27:52Z

As advocates of justice, prosecutors play a unique and powerful role in our justice system. Yet too often, prosecutors fall prey to a pervasive "convict at all costs" culture, and neglect their ethical duty to protect the innocent and guard the rights of the accused. The recent actions of Santa Clara District Attorney Dolores Carr demonstrate this troubling culture. Carr has directed her office to boycott the courtroom of Superior Court Judge Andrea Bryan, who barred the retrial of a case overturned due to Santa Clara prosecutor Troy Benson's prosecutorial misconduct. The finding of misconduct against Troy Benson presents an opportunity for Santa Clara prosecutors to examine what may have led to Benson's misconduct, and take steps to ensure abuses of power do not take place again in the future. However, instead of addressing her colleague's misconduct, which Judge Bryan called "grossly shocking," Carr is calling for open criticism of the judge responsible for upholding her constitutional obligation to reverse convictions prejudiced by egregious prosecutorial misconduct.

Prosecutors have sole responsibility for deciding whether to file charges, what charges to bring, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. These varied and unique duties render prosecutors the most powerful actors in our criminal justice system. Yet despite their power, prosecutors are rarely held accountable for violating their ethical obligations. This lack of accountability fosters a problematic culture that plagues prosecutors' offices around the country and contributes to wrongful convictions.

Prosecutors' obligation to ensure public safety and convict the guilty must coexist with the overriding goal of justice. The Justice Project's policy review, Improving Prosecutorial Accountability outlines suggested reforms that can help create a culture that prioritizes 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 - a move that The Department of Justice recently took in response to the Ted Stevens case. Moreover, prosecutors who intentionally abuse their power to secure a wrongful conviction must be investigated and disciplined for their actions. Jurisdictions should also establish prosecutorial review boards with the power to investigate and sanction prosecutors who perpetrate acts of misconduct as a means of recognizing the unique power prosecutors hold. Implementing these reforms will foster a more ethical culture in prosecutors' offices and increase transparency in prosecutorial decision-making.

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

Follow John Terzano on Twitter: www.twitter.com/TheJusticeProj

Mistakes Continue to Highlight the Need for Forensic Science Oversight

2009-12-01T20:00:33Z

Shoddy forensic science has led to a major setback in a murder investigation that could close the door on efforts to bring the killer to justice. The family of murder victim Suzanne Jovin was recently informed that the DNA evidence in her case was useless because it was contaminated by a lab technician. A DNA sample collected from under Jovin's fingernails after her 1998 murder was found to match that of the lab worker that processed the evidence, not her killer as was previously assumed.

In recent years, forensic science has become a staple of criminal prosecutions. Jurors increasingly expect trials to include conclusive forensic evidence pointing to the guilt or innocence of a defendant. Although forensic testing has a reputation for producing accurate and objective evidence, it is not flawless. In fact, a lack of quality standards in forensics labs and of adequate training for technicians has resulted in potentially important evidence being rendered worthless or just plain wrong far too often. Moreover, since most states lack any type of meaningful oversight of its crime labs, mistakes continue to occur and problems remain uncorrected. ]]> American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB). But the fact that problems still exist in accredited labs like the Connecticut State Department of Public Safety, the lab charged with processing evidence in the Suzanne Jovin case, shows that we must do more to ensure that effective forensic quality standards are being followed. As ASCLD/LAB itself acknowledges, accreditation is only part of a "laboratory's quality assurance program". Some states are beginning to recognize the need to augment private accreditation with more ongoing oversight and additional quality standards in order to ensure that our courts rely on the best forensic evidence possible.

The Justice Project's policy review, Improving the Practice and Use of Forensic Science, outlines several steps states should take , including creation of an independent oversight commission to more closely supervise the work of forensic science laboratories. This commission would set statewide quality standards for all labs and would provide more rigorous, ongoing oversight of forensic testing to ensure that labs operate in a way that is consistent with the highest scientific standards. The commission would also adopt standards and regulations regarding the training and certification of all lab employees and safeguards against inadvertent bias in forensic analysis. These safeguards will help to ensure the objectivity and reliability of forensic testing and analysis.

Forensic science can be a powerful tool for seeking truth and justice. However, until our forensic oversight goes beyond accreditation, forensic evidence will continue to be mishandled, and jurors will be prevented from hearing reliable evidence. Good science leads to good justice, something in which we all have a vested interest.

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.

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.