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

The New York Times is reporting that:

Scientists in Israel have demonstrated that it is possible to fabricate DNA evidence, undermining the credibility of what has been considered the gold standard of proof in criminal cases. The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.

“You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.” Dr. Frumkin is a founder of Nucleix, a company based in Tel Aviv that has developed a test to distinguish real DNA samples from fake ones that it hopes to sell to forensics laboratories.

The planting of fabricated DNA evidence at a crime scene is only one implication of the findings. A potential invasion of personal privacy is another. Using some of the same techniques, it may be possible to scavenge anyone’s DNA from a discarded drinking cup or cigarette butt and turn it into a saliva sample that could be submitted to a genetic testing company that measures ancestry or the risk of getting various diseases. Celebrities might have to fear “genetic paparazzi,” said Gail H. Javitt of the Genetics and Public Policy Center at Johns Hopkins University.

The scientists fabricated DNA samples two ways. One required a real, if tiny, DNA sample, perhaps from a strand of hair or drinking cup. They amplified the tiny sample into a large quantity of DNA using a standard technique called whole genome amplification.

Of course, a drinking cup or piece of hair might itself be left at a crime scene to frame someone, but blood or saliva may be more believable. The authors of the paper took blood from a woman and centrifuged it to remove the white cells, which contain DNA. To the remaining red cells they added DNA that had been amplified from a man’s hair. Since red cells do not contain DNA, all of the genetic material in the blood sample was from the man. The authors sent it to a leading American forensics laboratory, which analyzed it as if it were a normal sample of a man’s blood.

The other technique relied on DNA profiles, stored in law enforcement databases as a series of numbers and letters corresponding to variations at 13 spots in a person’s genome. From a pooled sample of many people’s DNA, the scientists cloned tiny DNA snippets representing the common variants at each spot, creating a library of such snippets. To prepare a DNA sample matching any profile, they just mixed the proper snippets together. They said that a library of 425 different DNA snippets would be enough to cover every conceivable profile.

Nucleix’s test to tell if a sample has been fabricated relies on the fact that amplified DNA — which would be used in either deception — is not methylated, meaning it lacks certain molecules that are attached to the DNA at specific points, usually to inactivate genes
 

What effect does this have on the over 200 people who have been "exonerated"?  Has the DNA been fabricated in any of those cases?

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According to The 1st U.S. Circuit Court of Appeals In Limone v. US $1 Million Per Year "approach[es] the outermost boundary of what might be thought conscionable" and is "at the outer edge of the universe of permissible awards." 

The Court explained:

That leaves the naked claim of excessiveness (a claim that encompasses the government's charge that $1,000,000 per year is simply too rich).  This question is not free from doubt. The district court's awards are considerably more munificent than the amounts that this court would have awarded in the first instance. In our view, the awards approach the outermost boundary of what might be thought conscionable. Cf. Baba-Ali v. State, 878 N.Y.S.2d 555, 568 n.7 (N.Y. Ct. Cl. 2009) (chronicling awards of lesser amounts).

Still and all, the awards are by no means unprecedented, and the "shock-the-conscience" test cannot be administered in a vacuum. What is shocking under one set of facts may be acceptable (even if only marginally so) under different circumstances. See United States v. Santana, 6 F.3d 1, 6 (1st Cir. 1993).

We are frank to say that, here, the awards for wrongful incarceration are high enough to be troubling. But when we take into account the severe emotional trauma inflicted upon the scapegoats, we cannot say with any firm conviction that those awards are grossly disproportionate to the injuries sustained. After all, some cases involving analogous factual scenarios have resulted in comparable damage awards. See, e.g., Thompson v. Connick, 553 F.3d 836, 865-66 (5th Cir. 2008) (upholding jury award of $14,000,000 for 18 years of wrongful incarceration), vacated on other grounds by ___ F.3d ___, ___ (5th Cir. 2009) (en banc) [No. 07-30443, slip op. at 1]; Newsome v. McCabe, 319 F.3d 301, 302-03 (7th Cir. 2003) (involving award of $15,000,000 for 15 years of wrongful incarceration); White v. McKinley, No. 05-203, 2009 WL 813001, at *22 (W.D. Mo. Mar. 26, 2009) (upholding jury award of $14,000,000 in compensatory damages for 5 ½ years of wrongful incarceration); Sarsfield v. City of Marlborough, No. 03-10319, 2006 WL 2850359, at *1 (D. Mass. Oct. 4, 2006) (reflecting judicial award of more than $13,000,000 for 9 ½ years of wrongful incarceration). Consequently, we conclude that the district court's awards must stand.

In concluding that the awards in this case fall short of shocking the conscience, we think it important to make clear that the $1,000,000 annuity selected by the district court as the baseline for its calculation should not be understood as a carob seed for measuring the harm caused by wrongful incarceration generally. Applying a literal reading of the statement in Limone IV that "wrongfully imprisoned plaintiffs were entitled to compensation of at least $1 million per year of imprisonment," 497 F. Supp. 2d at 243 (emphasis supplied), one district court recently has treated the $1,000,000 per year baseline as a floor for damages arising out of wrongful incarceration. See Smith v. City of Oakland, 538 F. Supp. 2d 1217, 1242-43 (N.D. Cal. 2008) (citing Limone IV). We regard that characterization as unfortunate. As we have emphasized, the district court's awards are at the outer edge of the universe of permissible awards and survive scrutiny, though barely, only because of the deferential nature of the standard of review and the unique circumstances of the case.

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The Associated Press is reporting"

A federal appeals court on Thursday upheld a $102 million judgment against the government for withholding evidence that could have cleared four men who spent decades in prison — including two who died there — for a murder they didn't commit.

Joseph Salvati, Peter Limone and the families of Henry Tameleo and Louis Greco sued the federal government for malicious prosecution after U.S. District Judge Nancy Gertner ruled in July 2007 that Boston FBI agents withheld evidence they knew could prove the men weren't involved in the 1965 killing of Edward "Teddy" Deegan, a small-time hoodlum who was shot in an alley. "While we reject its finding that the government is liable for malicious prosecution, we uphold the court's alternate finding that the government is liable for intentional infliction of emotional distress," the 1st U.S. Circuit Court of Appeals said on Thursday. "We conclude that the awards, though high, are not so grossly disproportionate to the harm sustained as to either shock our collective conscience or raise the specter of a miscarriage of justice."

A U.S. Department of Justice spokesman said the agency would only comment after studying the ruling. Attorneys for some of the men, however, were not restrained in their reaction. "It's a good day for civil rights, and I hope that the FBI will be able to put this sordid chapter in their history behind them and redeem themselves to be an institution that they once were," said Juliane Balliro, one of the lawyers representing Limone, Tameleo and their families. Balliro said the quick ruling has left the two men and their families ecstatic. Attorneys for Salvati and Greco did not immediately return telephone calls seeking comment. The district court judge said FBI agents were trying to protect informants when they encouraged a witness to lie, then withheld evidence they knew could prove Limone and the three other men weren't involved in the Deegan killing.

She said Boston FBI agents knew mob hitman Joseph "The Animal" Barboza lied when he named Limone, Salvati, Tameleo and Greco as the killers. She said the FBI considered the four "collateral damage" in its war against the Mafia, the bureau's top priority in the 1960s. Tameleo and Greco died behind bars, while Salvati and Limone spent three decades in prison before they were exonerated in 2001.

A state judge found two Boston FBI agents had allowed Barboza to frame the men because Barboza and his friend Vincent "Jimmy" Flemmi, one of Deegan's killers, were FBI informants who provided evidence in the agency's highly publicized war against La Cosa Nostra. "This case exemplifies a situation in which the end did not justify the government's use of very unattractive means," the appeals court said Thursday. "In its zeal to accomplish a worthwhile objective (stamping out organized crime), the FBI stooped too low."

The appeals court said the district court used a permissible methodology in computing damages. The district court judge had awarded $26 million of the $101.7 million judgment to Limone, who served 33 years in prison. Greco's estate gets $28 million, Salvati gets $29 million and Tameleo's estate gets $13 million; the men's wives, ex-wives and children get the rest of the money. Limone and Salvati were exonerated after FBI memos dating back to the Deegan case surfaced.
 

Just to note.....

That comes out to $1M a year per person they were incarcerated.  Is that reasonable? .... more to follow on this...

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Chicago Breaking News Center is reporting:

A man was shot dead in the Loop and a Chicago police officer was wounded but saved by his bulletproof vest this afternoon, sources say. A man in his 50s was transported from 190 N. State Street and was pronounced dead at 1:09 p.m. at Northwestern Memorial Hospital, according to a spokesman from the Cook County medical examiner's office.

The wounded cop was also taken to Northwestern but did not appear to be seriously injured, according to fire officials. The shooting occurred just before 1 p.m. outside the WLS-Ch. 7 studios near State and Randolph Streets when several officers witnessed a purse-snatching, according to an officer on the scene.

The suspect put a knife to a woman's neck and officers began chasing him, the officer said. A cop was wounded and then fired several times at the man, the officer at the scene said. Witnesses said they heard as many as four or five shots. Bobby Polk said he turned to see a man holding "a butcher knife" to a woman's throat. As many as five police officers were pursuing him. "The policeman shouted 'Stop, stop,' but he didn't and that's when [the officer] shot him," said Polk, 20.

The man was burly, had a white beard and looked disheveled, he said. Chicago Police News Affairs officer Laura Kubiak said calls of a shooting on the busy Loop street came in at 12:49 p.m.

The officer should be commended - The officer stopped this guy before he continued to be a threat to more citizens on the street.   Great work CPD!!!!!

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CLTV's, Garrard McClendon is very critical of the state's compensation scheme of the wrongfully imprisoned.  Along with attorney Matt Belcher, McClendon finds it "unreal" that the State of Illinois caps out their compensation at $190,000 for Reeves and Kitchen.  

Why is he so quick to conclude they are innocent? Why credit Kitchen's torture allegations?

As previously posted on July 9, 2009, Kitchen's allegation of being beaten are nothing new and were addressed by the Illinois Supreme Court . According to the Court:

At the motion to suppress statements, the State presented the testimony of four Chicago police officers, each of whom testified that defendant was not beaten and that his confession was voluntary. Assistant State's Attorney Mark Lukanich also testified that he did not see any of the police officers physically strike, threaten, or assault defendant. Most importantly, a videotape was presented at the suppression hearing which showed defendant's exit from the police station to the police wagon. In the videotape, defendant was walking normally and not limping in any manner, nor did he show any visible signs of injury.

Louis Gregory Simmons, a paramedic at the receiving station for the Cook County Department of Corrections Cermak Hospital, testified that on August 27, 1988, he examined petitioner as part of the intake screening process. Mr. Simmons did not observe any injuries to petitioner's body."

Hmm... perhaps there is more to the story....

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The  Los Angeles Times is reporting:

A Virginia man who spent 22 years in prison for two rapes he did not commit will get more than $632,000 in restitution, following a unanimous decision Wednesday by state lawmakers.

Arthur Whitfield, 54, of Norfolk was convicted in 1982 and sentenced to 63 years in prison. A 2004 DNA test proved his innocence and he was freed. Whitfield needed paperwork stating his innocence in order to receive state restitution, but the Virginia Supreme Court could not issue such a finding — called a "writ of actual innocence" — because the law at that time allowed that only for those who were incarcerated. Whitfield's only hope was a pardon from Gov. Timothy M. Kaine, but because one of the rape victims opposed the pardon it took until April for Kaine to grant it.

"When we have a victim who continues to assert that the individual is guilty, we obviously had to take some time and make sure we had that right," Kaine said Wednesday. Whitfield recently was diagnosed with liver cancer and did not attend Wednesday's special legislative session because he was getting chemotherapy, said his lawyer, Michael Fasanaro Jr.

Whitfield has been working in a produce factory but struggles financially, Fasanaro said. "I'm delighted that we've finally gotten some commitment from the state to pay him some money," Fasanaro said. Whitfield will receive $632,867, according to a formula outlined in state law that compensates the wrongfully convicted based on 90 percent of the state per capital income for up to 20 years.

He will get a lump sum of $126,573 within a month, then the remaining $506,294 will be placed into an annuity that he will receive beginning next year. Whitfield also will receive $10,000 in community college assistance. He would lose any unpaid amount if he is convicted of a felony. Instead of the usual 25-year annuity prescribed by state law for such cases, legislators set it up so that Whitfield would consult with the attorney general's office and other state agencies to determine the best way for him to receive the money. Fasanaro said Whitfield had hoped to get all the money at once so he could buy a house. He currently lives in an apartment, and his father drives him to work. "He's afraid that he's still going to have to work, and he's not going to be able to much longer" because of his health, Fasanaro said. Legislators said they wanted Whitfield to get the money quickly to help pay for medical and other expenses.

Sen. Kenneth Stolle, R-Virginia Beach, pushed for restitution after learning this summer that Whitfield had not been compensated for his time behind bars. "I was extremely amazed at the fact that this guy holds no grudges against the community or the victims," Stolle said. "He probably regrets what happened, but he is completely happy with being out of prison and is not asking for anything."

See also the article in the PioltOnline

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The Daily Herald is reporting this morning that Three McHenry County Officers have been vindicated by a jury of any misconduct in the Gary Gauger case.

For a dozen years McHenry County Undersheriff Gene Lowery and two former colleagues have lived with allegations they framed an innocent man for the murder of his parents and helped send him to death row for a crime he did not commit. Those claims may have been silenced Thursday night when a jury cleared him and retired detectives Beverly Hendle and Christopher Pandre of malicious prosecution and conspiracy claims brought in a lawsuit by pardoned death row inmate Gary Gauger.

Jurors deliberated nearly five hours before returning the verdicts, which found that even though Gauger was innocent, the detectives had probable cause to arrest him for his parents' 1993 slayings.

Gauger was suing the detectives, and the McHenry County sheriff's department, for $20 million, alleging they falsely reported that he confessed to the murders - acts that ultimately landed him behind bars for 31/2 years, including nine months on death row, before he was exonerated.

On Thursday, it was the detectives claiming vindication.

"Nobody feels good when the criminal justice system fails," Lowery said after the verdict. "Though I feel we've been exonerated, I don't think there's anything to celebrate. "Maybe some of our honor is back," he said. "We were accused of wrongdoing, and we were just doing our jobs."

Gauger, an organic vegetable grower who lives near Richmond, declined to comment on the jury's decision, but his lawyers said they will appeal. "It's a very disappointing verdict," Gauger attorney Matthew Crowl said. "We felt that the evidence was strong, but we understand it's a high burden to meet in a malicious prosecution case." That burden required Gauger to show that not only did the detectives arrest the wrong man but that they did so with an "improper motive" other than bringing the proper person to justice. The jurors declined to comment on their decision as they left the McHenry County courthouse Thursday night. Gauger was living with his parents, Ruth and Morris Gauger, in April 1993 when they were found dead, their throats slashed, on the family farm off Route 173. During 18 hours of questioning, police said, Gauger confessed to the killings. He later was convicted of first-degree murder based largely on that confession and sentenced to death.

About three years later, however, a federal investigation linked two members of the Outlaws motorcycle gang to the murders. Gauger ultimately was released from prison and the charges against him were dismissed. In 2002, he received a full pardon. Gauger testified last week that contrary to the detectives' claims, he never admitted to the murders. Instead, he told jurors, he offered a hypothetical explanation of how he might have done it after detectives falsely told him they had evidence proving he was the killer and suggested he did it during a blackout. He said he repeatedly told investigators he had no memory of harming his parents.

The detectives denied those claims, testifying this week that Gauger never offered a hypothetical explanation and they never lied to him about evidence. During closing arguments, the detectives' attorney, James Sotos, told jurors that it was Gauger's own actions and statements that made him a suspect. "I don't think the police officers misdirected this investigation," he said. "Mr. Gauger misdirected this investigation. There is not a police officer in the world who would not have held an honest and strong suspicion."

More to follow.....

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We decided to launch our very own YouTube channel. 

Visit DontBlameTheCops YouTube Channel to see the latest media coverage on the Jerry Miller decision.  

Here is the ABC Channel 7 News coverage: 

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Barry Scheck and Jerry Miller speak at the Gel 2009 conference about Miller's wrongful conviction case.  Barry Scheck of Neufeld, Scheck & Brustin, represent Jerry Miller in his lawsuit.  

This speaking engagement came just days before United States District Court Judge Suzzane Conlon ruled in favor of the police officers in the lawsuit.  As previously report, Judge Conlon found that the officers had probable cause to arrest Miller.  The court further found that the lineup - where Miller was identified - was fair. 

Although Miller was exonerated on DNA evidence, the police did their jobs and did not commit any misconduct.  

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Andrew Hale & Associates has released the following press release which has been picked up by the Chicago Tribune , ABC7 News Chicago , WBBM780 , and the Newswire

Chicago, IL - August 17, 2009 -- A federal district court judge has ruled in favor of three retired Chicago police officers who were sued by Jerry Miller in a federal civil rights lawsuit. Miller was convicted in 1982 of raping a woman at a parking garage in the Gold Coast section of Chicago.

Miller was identified by two employees who worked at the parking garage and stopped a man - later identified as Miller - as he was attempting to drive his rape victim's car out of the parking garage, with the victim locked in the trunk.

After spending 26 years in prison, Miller was released after DNA testing from the crime scene proved that Miller was not the rapist. Shortly thereafter, Miller filed a civil lawsuit, alleging that several now retired Chicago police officers had framed him for the crime by conducting a suggestive lineup and failing to disclose material exculpatory evidence.

Judge Suzanne B. Conlon rejected all of Miller's claims against the officers and granted their motion for summary judgment in its entirety finding as a matter of law that the officers did not engage in any misconduct.

The retired police officers were represented by attorneys Andrew Hale, Avi Kamionski, Ebone Liggins, and Christina Liu from the law firm of Andrew M. Hale & Associates, LLC.

About Andrew M. Hale & Associates

Andrew M. Hale & Associates specializes in the defense of civil rights lawsuits brought against municipalities and police officers. The firm's principal attorneys are Andrew M. Hale and Avi T. Kamionski. The firm maintains a blog dedicated to the defense of police officers in wrongful conviction cases: www.wrongfulconvictionlawsuitdefense.com or www.dontblamethecops.com.

For more information contact: Andrew M. Hale, 312-341-9646, ahale@ahalelaw.com, www.ahalelaw.com

*Source Andrew M. Hale & Associates - Federal Court Case no. 08 C 773

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 As recently reported, the district court granted summary judgment in favor of three retired Chicago police officers who were sued by plaintiff Jerry Miller in a civil rights lawsuit in the Northern District of Illinois. One of Miller's claims was that the police officers conducted an unduly suggestive lineup. The court rejected that argument, stating: "A lineup does not require five persons with identical measurements and countenances. United States v. Funches, 84 F.3d 249, 253 (7th Cir. 1996). It is undisputed that Miller and the other participants in the lineup were males, black, between 5'6" and 6', between 150 and 170 pounds, and between 23 and 31 years old. Miller was the same height as a filler, one inch taller than a filler, and four to five inches shorter than two fillers. He weighed the same as two fillers, was five pounds lighter than a filler, and was 20 pounds lighter than a filler. The parity level establishes the lineup was not unduly suggestive."  (For more information on this case, see the prior blog post).

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 Three retired Chicago police officers who were sued for allegedly framing plaintiff Jerry Miller received a total victory when District Court Judge Suzanne B. Conlon granted their motion for summary judgment in its entirely. Miller was convicted in 1982 of a brutal rape in the Gold Coast area of Chicago. He was convicted based on the testimony of two eyewitnesses who identified Miller as the man who attempted to drive his rape victim's car out a parking garage where they worked at the time. The parking lot attendants foiled the rapist's escape by preventing him from driving the car out of the parking garage. Miller spent 26 years in prison before being released in 2006 based on new DNA testing which showed that Miller was not the rapist. That DNA testing lead to the real culprit, Robert Weeks, who was already incarcerated for other sexual assaults. Miller subsequently brought a civil lawsuit against several retired Chicago police officers alleging that they framed him for the rape by conducting a suggestive lineup and photo array and by failing to disclose material evidence. In a 26-page opinion, Judge Conlon rejected all of Miller's claims and held that the Officers were entitled to summary judgment. Judge Conlon stated "The police officers are entitled to summary judgment on Count I for [Section] 1983 denial of a fair trial because Miller presents no genuine issue of material fact that the lineup and photo array were unduly suggestive or tainted his trial. He presents no genuine issue of material fact that evidence about the photo array was suppressed or material. And he presents no evidence of a conspiracy. The police officers are entitled to summary judgment on Miller's substantive due process claim because it is not legally viable, and Miller presents no genuine issue of material fact that the police officers fabricated evidence. Summary judgment is granted to the police officers on Count V for malicious prosecution because the undisputed facts demonstrate probable cause to arrest and prosecute Miller. Summary judgment is granted to the police officers on Count VI for IIED because Miller presents no genuine issue of material fact that the police officers fabricated evidence." The court's ruling confirmed what the defense attorneys had been stating all along - that this was an unfortunate case of eyewitness misidentification - not police misconduct. The police officers were represented by Andrew Hale, Avi Kamionski, Ebone Liggins, and Christina Liu from the firm of Andrew M. Hale & Associates, LLC. Plaintiff Jerry Miller was represented by John Stainthorp from the Peoples  Law Office and Nick Brustin, Peter Neufeld, and Barry Scheck from the Innocence Project.

Here is the opinion

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