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

The Illinois Supreme Court ruled on Thursday that a pardon from the governor, even a pardon declaring innocence, does not automatically clear a criminal record. The person receiving the pardon would still have to petition a trial court to expunge the conviction, which the court has the discretion to do or not do. The major issue the Supreme Court dealt with was whether the legislature gave the courts the authority to expunge a record. The Court held that the lawmakers have certainly done that. As such, the circuit courts have the discretion to clear the record or not, even if the Governor declares someone innocent.The Case arouse out of the petition of Stanley Howard and Dana Holland.  Both Howard and Holland received innocence pardons.  See the full Illinois Supreme Court Opinion.   

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This is the second, in just the last week, where a man professing his innocence had his guilt re-affirmed through DNA testing.  Charles Hunter got his wish after years in prison. However, things did not go according to the plan he had when writing 46 letters to a Lawrence, Kansas newspaper. Hunter's DNA instead confirmed that he in fact did commit a series of rapes in Kansas in 1978.

According to the Lawrence Journal World & News, Douglas County District Attorney Charles Branson announced that DNA testing results failed to exonerate Charles Hunter.

The Innocence Project commented on the Hunter case:

Eric Ferrero, communications director at the Innocence Project, said the results “confirms the prosecution’s theory at the trial.” Ferrero said Hunter’s case with the Innocence Project is now closed.That might seem like a loss for the Innocence Project and the cause of wrongful convictions, but Ferrero said his organization’s goal is not based on which person the DNA evidence incriminates or exonerates.“ DNA evidence can prove innocence or guilt,” said Ferrero, whose agency has documented 233 cases in the United State where DNA evidence has led to exoneration. “Our cause is to get to the truth in these cases.”

 

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Among a slew of bills being proposed in the Texas State Legislature is one that targets prosecutors who withhold exculpatory evidence.  According to Star-Telegram.com: "The bill would lift the statute of limitations on official-oppression cases and raise the penalty from a misdemeanor to a state jail felony if the withheld evidence was favorable to the defendant. Kelvin Bass, legislative aide for West, said the bill would allow for review years after wrongful conviction." 

The problem with the bill, complains Terri Moore, first assistant district attorney for Dallas County, is:  "[the] bill would expose prosecutors to punishment even if police had suppressed evidence and prosecutors didn’t know about it. 'Now I’m committing a felony because I didn’t turn something over to the defense that I didn’t even know existed?' Moore said. 'I got a problem with that.'"

We have not seen the actual the bill, but if the police turn over exculpatory information to prosecutors and the prosecutors withhold that information, the prosecutors should be held accountable.  With the shield of absolute immunity, prosecutorial misconduct is rarely explored in the context of wrongful conviction lawsuits.  When the police present a case to the prosecutors, the ball is in their court, and the police should not be on the hook for the prosecutors conduct.  If the police withhold exculpatory evidence from the prosecutors - then the prosecutors should get a pass. They can't disclose information they have no clue exists.  

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In todays Chicago Sun-Times, Superintendent Jody P. Weis wrote the following letter to the editor: 

Serving and protecting the residents of the City of Chicago is a priority for the Chicago Police Department. To do this effectively, the department must work with the communities that we serve, building mutual support and trust. With this in mind, I would like to address my recent decision to initially defy a court order dealing with the release of police officer names on a so-called "repeater" list.
My decision to initially defy Judge Gettleman's order was not an easy one. As superintendent of the Chicago Police Department, I was deeply concerned about the effect that disclosing this list might have on the well-being, safety and reputations of the vast majority of the men and women of the Chicago Police Department who work hard every day to serve our city.

As the chief law enforcement officer for the Chicago Police Department, I am committed to the rule of law and ensuring quality relations with the judiciary. I thought that it was extremely important, though, for the judge to have a complete understanding of the potentially serious consequences of this information becoming public and the effects that might have on the day-to-day operations of the Chicago Police Department. For the well- being of our officers, and for the citizens that they serve, I wanted to be sure that our arguments were heard by the court.

I also want everyone to recognize that the city actually provided the plaintiff with a redacted list. We felt that this information would allow the plaintiff to conduct the statistical analysis that they claimed was necessary, without individual names.

Identifying officers as "repeaters" based on the mere fact that an officer has received more than five complaints in a six-year period, even though the complaints may have been found to be false or their actions were found to be justified under the law, is not fair. On other occasions, the individual filing the complaint did not follow through and sign the affidavit as required by state law, which would have them state that their complaint is true. In those instances, the complaints are closed. Just last year, 62 percent of all complaints were closed due to the lack of the required affidavit.

Again, my intent was to ensure the safety and security of our officers and the city. I continue to disagree with the judge's ruling, but I have made my concerns known in the strongest way possible. As I said in the statement that I filed with the court, plaintiffs would use this list to wrongfully label thousands of Chicago police officers as repeat offenders. This is particularly unfair given that Chicago has an open complaint system, in which all complaints are registered regardless of merit, and the list would include all complaints, regardless of outcome.

Furthermore, if an officer is asked whether his/her name is on the repeater list in open court, they would be forced to answer "yes," without the ability to explain the circumstances. I believe that this will lead to unnecessary lawsuits against officers improperly labeled, and more importantly, to officers second-guessing their actions when we need them to act without hesitation. That is why, after very careful consideration, I initially refused to turn over this list to the court.

I am still concerned about the protections available to those officers who will be included on this list. I am concerned for their well-being, for their careers and for their futures if they appear in court.

The city will aggressively work to ensure that the protective order governing the production of this list remains in full force and effect.

As superintendent, I am committed to leading a department that will increase the respect and cooperation between our members and the public. We will strive for this in a way that is reasonable, well-intentioned and respectful of everyone.

Jody P. Weis,

superintendent of police,

Chicago 

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Here is an article by Robert Weisskopf, president of the Chicago Police Lieutenants Association:

Here in the United States of America, citizens have the right to be treated as innocent until proven guilty in a court of law. If there is an allegation of wrongdoing made against an individual and it is not sustained, then the there should be no presumption of guilt. I think this is obvious logic.

However, here in Chicago a federal court recently determined that a list of Chicago Police Department officers with five or more charges of excessive force must be released to an attorney. This list is being referred to as a list of officers guilty of excessive force.

Most of the allegations made against the officers on the list have not been sustained. As a matter of fact, very few of these allegations have even been sustained. All of these allegations have been investigated either by the former Office of Professional Standards or the new Independent Police Review Authority.

Here is the way it works: A hard-working police officer makes arrests. Many make 200 or more arrests a year. That is not uncommon. Unfortunately not all arrestees say, "Thank you, Officer. No hard feelings." To try to get a little vengeance against an officer, they file a complaint. I have heard that it is not uncommon for a defense attorney to recommend that a client immediately file an accusation of excessive force against the arresting officer to try to muddy the waters and help the case.

The Independent Police Review Authority is required to investigate any and all complaints of excessive force regardless of how outlandish and outrageous the complaints may be. It does its best to thoroughly investigate these allegations. It is not trying to cover up any wrongdoing. In the end the evidence only supports a sustained finding on a small fraction of these complaints.

Every good, hard-working police officer I have ever met has had allegations made against him or her. That is the life of a cop.

As president of the Chicago Police Lieutenants Association, it is my responsibility to help provide for the common welfare of Chicago Police lieutenants and the support of all measures for the protection and benefit of the public good. I fail to see any public good as the result of this court's action. In spite of this court's failure to support the guardians of their society, officers of the Chicago Police Department will leave the safety of their homes and show up for work today and tomorrow and as long as needed and step out to provide the service our city needs.

Police officers have long been held to a higher standard as well they should.

However, they should have the rights and protections that anyone else enjoys.

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Click here to see the full 60 minutes 

CBS 60 Minutes correspondent Lesley Stahl provided an in-depth analysis on the flaws of eyewitness identification. Stahl tells the compelling story of a rape victim named Jennifer Thompson. She picked Ronald Cotton out of a photo array and Cotton was arrested. After she picked him out of a lineup, Cotton was put on trial and convicted. While in prison, Cotton ran into a man named Bobby Poole and they looked a lot alike. In fact, the prisoners and guards would even mistakenly call each other by the other name. Eventually, Cotton was exonerated by DNA evidence, and it was shown that Poole committed the crime.

The story goes on analyze some issues involved with the identification. First, Stahl reports that it is often the case that the real perpetrator is not in the photo array.

"When you're sittin' in front of a photo lineup, you just assume one of these guys is the suspect. It's my job to find it," Thompson explained.
"Bobby Poole's photograph was not in the photo lineup," Thompson told Stahl. "He was not in the physical lineup."

"When the real perpetrator is not in the set, is none of them, witnesses have a very difficult time being able to recognize that," explained Gary Wells, a professor of psychology at Iowa State University.

Wells goes on to state that eyewitness ID's are very persuasive because the victim has no reason to lie. However he says, that if a person sees someone that did the crime, it would trigger recognition memory.

"Recognition memory is actually quite rapid. So we find in our studies, for example, that if somebody's taking longer than ten, 15 seconds, it's quite likely that they're doing something other than just using reliable recognition memory."

Wells continues and states that the biggest issue is the reinforcement factor after an identification. After the choice, the detective or officer familiar with the case and the victim often say good job or you made the right choice. This makes the victim feel they did it right, and become more positive about their choice.

[Wells] says the solution is to have someone independent administer the lineup, someone who doesn't even know who the suspect is. And certainly not the detective on the case.

Don't be quick to discount eyewitness identification - it has been the most prominent and valuable tool in putting away criminals. While there are cases such as this one, which are heart-wrenching, the police officer was doing his job by the book. Yet, in many cases such as this, the wrongly convicted still goes after the officer and the police department for civil liability. In a case like this, that lawsuit would be inappropriate and frivolous (but it still happens everyday). It is important to note that Cotton did not sue the police department and received 10,000/year for each of the 11 years from the state of North Carolina.

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CBS in Dallas is reporting:  

North Texans and people around the world have become accustomed to seeing inmates, wrongly convicted of a crime in Dallas County, released because of DNA evidence. Now the table has been turned on one man who claimed to be innocent of his crimes. Charles Williams is a rapist and a liar. His DNA proves it. For the past two years, Dallas County men, with decades of prison time served, have been cleared of crimes they didn't commit. The science of DNA proved it. Williams told The Innocence Project he too was wrongly convicted of raping a woman in 1988. "In talking to Charles, I mean he even today will tell you that he did not commit this crime," said public defender Michelle Moore. "But you have to be careful what you ask for here." Williams had the Dallas District Attorney's Office investigate his innocence claim. In the beginning, his case looked like so many of the others. Williams was convicted based on eyewitness testimony and even pled guilty to two other sexual assaults, but maintained his innocence.

Here is the kicker:

District Attorney Craig Watkins wants Williams to spend more time in prison. The convicted rapists' DNA points to Williams as the attacker and only him. "When we believe there's a valid claim of innocence, we have a responsibility to investigate that," explained Watkins. "We did in this case, and unfortunately in this case, the defendant was less than truthful and he will stay in jail as long as we have a say so over it." Williams' victim said the man should have time added to his sentence for wasting taxpayers' money... and that's the plan.

 Watch the DA's comments here

This is not a surprise .  We have seen cases where even when DNA does not match - the person was still involved in the crime.   In one case we saw that just because the man did not rape a little girl (i.e. semen inside the girl was a negative match), did not mean he was not involved in the initial kidnap of the girl.   

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