Wrongful Conviction Lawsuit Defense Blog : Wrongful Conviction Defense Lawyer & Attorney : Andrew M. Hale Law Firm

John Terzano, President of Justice Project, a nonpartisan organization, stated that the forensic science system is in dire need of reform "to ensure reliability, and put forensic evidence on sound scientific footing." Terzano was speaking after a report released by the National Academy of Science to Congress. In that report, the NAS detailed the problems and recommendations to improve the use of forensic science in the American criminal justice system.

Terzano states that the report concludes:

...That forensic science is rife with problems, including a lack of thorough research and testing to establish the reliability of many forensic disciplines, under-staffed and under-funded forensic labs, a lack of adequate educational and training programs for forensic scientists, a lack of mandatory certification requirements for analysts and accreditation programs for labs, and effective oversight of analysts and forensic facilities. These systemic problems, among others identified by the NAS, "pose a continuing and serious threat to the quality and credibility of forensic science practice." The report recommends the establishment of a National Institute of Forensic Science to establish and enforce best practices for forensic science professionals and laboratories; and standards for the mandatory accreditation of labs and certification of analysts. NAS recommends this new institute fund additional research in the various forensic science disciplines and research on the possible sources and effects of bias and human error in the practice of forensic science, as well as funding to assist all forensic laboratories in the states to become independent from law enforcement agencies.
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Terzano further states:

"Despite the reputation of forensic science as being a reliable and accurate means of excluding certain suspects and identifying others, often fostered by popular shows such as CSI, forensic science is often deeply flawed and inaccurate--unreliable or false forensic evidence led to the wrongful conviction of over half of the first two hundred people exonerated by DNA evidence in the United States."

The Center has commented on these articles several times in the past. The Center does not dispute the findings, and commends the NAS for their recommendations. There are many reasons for the wrongful convictions that occur in America. Faulty scientific evidence is a major cause. This problem not only puts the wrong person in jail, it could also let the actual criminal out of jail or allow the culprit to remain on the streets. However, the trend of just allowing for broad and expansive lawsuits alleging police corruption does not correct this problem. Like the NAS and Mr. Terzano said, the system needs broad sweeping changes from the top. Hopefully Congress will realize that the change needs to come from the top and reform is needed in this system. WIthout changes, the municipalities feeling the effects of the new-age police witch-hunt will continue to be crippled economically by the effects.

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 The AP is reporting that some Texas police chiefs are supporting a measure that would allow taking DNA from supspects arrested for mid-level demeanors and up (including offenses like indecent exposure or check fraud). They also are supporting a measure that would set legal standards for how eye witness evidence can be collected by police.  The ACLU has gotten involved in the debate, calling the measure and "outrageous invasion of privacy."

Austin Police Chief Art Acevedo is among the law enforcement officials pushing to collect DNA from suspects in Class B misdemeanors. Their plan could mean sampling more than 800,000 people a year, some of whom may never be convicted or even go to trial.

Experts say that while a few states take DNA in misdemeanors involving sex crimes, none has gone as far as the Texas idea. The American Civil Liberties Union worries that police might make arrests just to fish for a DNA match.

"We think this is an outrageous invasion of privacy," said Rebecca Bernhardt, policy director of the American Civil Liberties Union of Texas.

"This is a step in the direction of creating a DNA database of every person in Texas, which is something Texans should be against," she said. "DNA is the most basic and private information a person has."

Austin Police Chief Arthur Acevedo says the samples would help police find criminals and exclude innocent people. The DNA proposal would include destroying records when charges are dropped or someone is acquitted at trial, Acevedo said.

"DNA has proven to be a tool that has gone a long way in proving the innocence of wrongly convicted individuals," Acevedo said, noting the Cole case. "This is an opportunity to eliminate people early on."

While the debate about the constitutionality of taking DNA from all mid-level misdemeanor arrestees will certainly develop in the next few months, it is the Center's position that the second measure is appropriate, if it is not too overreaching. By implementing procedures on lineups and eyewitness identification, the police will at least have some guidance about appropriate measures to take. These types of policies can help to limit misidentification by eye-witneses, which is the # 1 cause of wrongful convictions. However, if the policy is too far overreaching, it would in effect limit the police officer's ability to do his job, possibly putting the public at risk.

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An article in The Huffington Post authored by Ginny Sloan (President and Founder of the Constitution Project) and Jon Gould (Assoc. Professor and Director, Center for Justice, Law & Society at George Mason University) discussed the economic need for reform in the area of wrongful convictions. The article calls for all states to invest now in criminal justice reforms in order to avoid "enormous human and financial costs later."  According to the article:

Wrongful convictions are tragic for all involved, and they are expensive. Taxpayers pay for police investigations and criminal prosecutions that ensnare the wrong person. They pay the costs of incarcerating that person, and they may face substantial damages in wrongful conviction civil suits. All the while, the actual perpetrator is still on the street, able to prey on others.

But the reforms needed to prevent wrongful convictions may not be expensive. These reforms may not only prevent wrongful convictions and the terrible costs to all involved, but they may also prevent the taxpayers from incurring needless costs.

The authors discuss certain changes that could be made to prevent wrongful convictions, which in effect, would lower the economic impact. The authors assert that police need to make several reforms including increasing the accuracy of suspect identification by changing line-up procedures, videotaping interrogations. The authors also suggest that "police officers should be trained to consider a wide net of potential suspects before honing in on the most likely perpet

rator." They also call for prosecutor's to open up case files to defense attorneys and allowing judges to hear post-conviction claims of innocence. Finally, the authors discuss the ever-present public defender issue.

The suggestions made by the authors are on point, even though they underestimate the breadth of the problem. One major economic effect of wrongful convictions is that most states allow double recovery in compensation.  Most of the states that do provide means of compensation for time spent wrongfully incarcerated still allow the released person to sue the municipality and individual police officers.   The Innocence Project maintains a list of the states that provide such compensation.  See for yourself.   

Tort reform is needed in this area.  People feel for the wrongfully incarcerated and want to blame someone.  Almost always its the police.  The focus needs to be on solving the problems - not a constant attack on the police.  Every lawsuit merely fuels the next, which adds to the percise economic problems Ginny Sloan addresses. 

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 A Wisconsin man, convicted in 1984 of the murder of a 63 year old woman, has been freed from prison after 23 years. A judge vacated the sentence after the Wisconsin Innocence Project convinced the judge that the DNA and bite-mark analysis did not match the evidence at the crime scene. However, the Milwaukee County District Attorney has not yet given up.

According to the Manitowoc Herald Times Reporter:

Milwaukee County Assistant District Attorney Norman Gahn didn't oppose his release, although he said Friday he has six months to decide whether to retry him. Gahn wouldn't elaborate. District Attorney  said in a statement that Stinson's conviction was not wrongful, and that he was convicted based on "state-of-the-art scientific evidence available at the time of his trial."

"The question today is whether there is newly discovered evidence in this case to warrant a new trial, and we agree that such evidence exists," Chisholm said. The statement did not describe the nature of the evidence. Stinson was convicted in 1985 in the murder of a 63-year-old Milwaukee woman the previous year. Ione F. Cyshosz was last seen by a friend who dropped her at her home after playing bingo. Her near-naked body was found the next morning, her head bloody and beaten and a number of bite marks on her torso. A police officer arrested Stinson in the area after saying the teeth of the then-21-year-old matched the bite marks.

At the trial, two forensic odontologists testified that Stinson's teeth were a match, even though Stinson was apparently missing a tooth in a place where the bite marks indicated a tooth, Lichstein, said. He said he didn't know why that didn't cast doubt on the case against Stinson at the beginning, but newer technology indicated there was no match."Every piece of evidence in the case points away from him," Byron Lichstein (Attorney for the Wisconsin Innocence Project) said. "He has a very powerful claim of innocence."

Bite mark identification is becoming an increasingly interesting phenomenon in wrongful conviction law. The Innocence Project reports that eight people in five states have had convictions overturned from faulty bite-mark analysis. Still, many odontologists insist that, if applied properly, bite-mark analyisis is reliable scientific evidence.

It is clear how a criminal conviction can be attacked through the means of faulty bite-mark analysis. However, any subsequent lawsuit against police or a municipality for this type of wrongful conviction should be hard to prove. Bite-mark analysis was deemed wholly reliable at the time, and many experts still deem it as reliable. Therefore, it surely should give police and prosecutors probable cause to arrest and prosecute which would bar any civil claim.

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In Ivy v Powers, 2009 WL 230542, January 30, 2009, Judge Kendall rulled that a plaintiff could survive a 12(b)(6) motion to dismiss an Equal Protection Class of One claim, based on his allegations that officers filed false police reports and criminal complaints against him to cover-up for their alleged misconduct.

Judge Kendall explained:

[Defendants, relying on the Supreme Court's recent decision in Engquist v. Oregon Department of Agriculture et al., ---U.S. ----, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), argued that plaintiff's Equal Protection “class of one” claim is barred as a matter of law.] In Engquist, the Supreme Court held that the class-of-one theory of equal protection does not apply in the public employment context. 128 S.Ct. at 2151. In reaching its holding the Court reasoned “that there are some forms of state action which by their nature involve discretionary decision making based on a vast array of subjective individualized assessments” and “[i]n such cases the rule that people should be treated alike, under like circumstances and conditions is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.” Id. at 2154. The Court went on to state that, “[t]his principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.”Id. As an example, the Court stated that an equal protection claim on the ground that a traffic officer gave a speeding ticket to one person and not to others, even if for no discernible reason, would be incompatible with the discretion inherent in the challenged action. Id. Defendants' assert that the Engquist Court's analogy to the enforcement of speeding laws shows that Ivy's Equal Protection claim fails because Ivy's equal protection claim is premised on the decision of the Defendant Officers to arrest Ivy and that decision is discretionary like the decision to give someone a speeding ticket.

Here, however, unlike the Court's analogy in Engquist, Ivy does not base his Equal Protection claim on the Defendant Officers' decision to arrest him. Ivy bases his claim on the Defendant Officers' alleged decision to file false police reports and criminal complaints against him to cover-up for their alleged misconduct. This is different from the discretionary decision to arrest one individual among many (due to logistical reasons) as set forth in the Engquist analogy. “The paradigmatic ‘class of one’ case, more sensibly conceived, is one in which a public official, with no conceivable basis for his action other than spite or improper motive ..., comes down hard on a hapless private citizen.” Lauth, 424 F.3d at 633. Here, Ivy alleges that he was a “hapless” private citizen who was the victim of the Defendant Officers misconduct and that this misconduct was spurred by an improper motive, that is, covering up their alleged violations of Ivy's Fourth Amendment rights. Ivy's claim against the Defendant Officers is not based on their discretionary decision-making duties as police officers, and is therefore unlike the plaintiff's class of one claim in Engquist.

Further, Ivy's factual allegations in support of his Equal Protection Class of One claim are sufficiently plead and provide the Defendants with sufficient notice. Ivy alleges that by falsifying police reports and charging documents against him, the Defendant Officers treated Ivy differently than other persons subject to arrest by the Defendant Officers, that there is no rational basis for the different treatment and that the Defendant Officers acted with discriminatory intent by treating Ivy differently. These facts, if taken as true, at least plausibly suggest that Ivy is entitled to relief. Therefore, Ivy's assertions against the Defendant Officers are sufficient to state a claim for an equal protection class of one violation. See Craft v. Flagg, 2008 WL 1883337 at *3 (N.D.Ill.2008) (Gettleman, J.) (holding plaintiff sufficiently plead equal protection “class of one” claim where he alleged that officers treated him differently then other individuals by planting evidence on him).

 

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