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

 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.

 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The AP is reporting:

A man who spent 23 years in prison for a rape he didn't commit sued St. Louis County and the officers who arrested him, saying investigators ignored inconsistencies in the victim's description. Johnny Briscoe, now 54, was freed in 2006 after DNA evidence exonerated him. He filed suit earlier this month in U.S. District Court in St. Louis. The suit claims his constitutional rights were violated and seeks unspecified damages.

The crime occurred in October 1982, in the suburb of Maryland Heights. A man burglarized a woman's apartment and raped her when she awoke. He talked to her a while and gave his name as John Briscoe. The woman later picked Briscoe's picture out of a lineup.

But the lawsuit pointed to several inconsistencies. The victim described the attacker as dark-skinned, about 5-foot-8, with normal teeth and a mustache. Briscoe is a light-skinned black man and 6-2, and had a gold-capped front tooth and a goatee.Even so, Briscoe was convicted by an all-white jury. He said his defense attorney never met with him. When the case was reopened, DNA on a cigarette butt at the rape scene was found to belong to Larry Smith, an acquaintance of Briscoe's who is serving a life term for another sexual assault.

Under state law, Briscoe was eligible for up to $36,500 in compensation for each year he was wrongly incarcerated, or more than $800,000, but he would have had to agree not to sue. Newman said the compensation falls short and Briscoe is confident he can win in court.

As highlighted previously by the Center, police officers and City are generally an easy target for lawsuits.  Under the civil rights laws, anyone can file suit against them.  Here, it appears, Mr. Bricoe's defense lawyer played a big role in landing him in jail for all these years.  If his claim is true, that his defense lawyer never met with him, that would be gross malpractice.  Chances are his defense lawyer does not have the deep pockets the City has.  His defense lawyer will likely skirt any liability.

An interesting point is also raised by the fact that the DNA that exonerated Mr. Briscoe is linked to a friend of his, Larry Smith.  The Center has seen other case in which the DNA, although failing to link to the individual in custody, still does not exonerate the person.  For example, many crimes are committed by multiple individuals or individuals participate in the crime at various points.  Here, we know, Mr. Briscoe most probably was not smoking a cigarette.

As to the compensation Mr. Briscoe rejected, similar financial compensation offers exist in many states.  It St. Louis, it appears, if Briscoe rejects the offer, he will need to role the dice in a lawsuit.  Here is a breakdown of compensation options per state.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Jerry Miller has filed a federal court civil rights lawsuit against the City of Chicago and several retired Chicago Police Officers. Miller was arrested in 1981 and charged with raping a woman at a parking garage at 506 N. Rush Street in Chicago. Two parking lot attendants identified Miller from a police lineup as the person attempting to drive the rape victim's car out of the parking structure while the victim was locked in the trunk. Miller was convicted at his criminal trial and spent 26 years in prison. In July 2006 the Cook County State's Attorney's Office agreed to post-conviction DNA testing that showed that Miller was not the contributor of a DNA profile found on the victim's clothing. Miller has now filed suit against the City of Chicago and several now-retired Chicago Police Officers. Miller alleges, among other things, that the Officers told the two parking lot attendants to pick Miller out of a police lineup. The factual basis for this allegation is unknown at this time and the two parking lot attendants are deceased. The case has been assigned to District Court Judge Suzanne Conlon. Miller is represented by John Stainthorp at the Peoples Law Office. The Police Officer Defendants are represented by Andrew M. Hale and Avi Kamionski from Andrew M. Hale & Associates.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The City of Chicago and ten former Chicago police officers have filed their response to Michael Evans' Seventh Circuit appeal. In August 2006, a federal court jury found in favor of the City of Chicago and the police officer defendants, rejecting Evans' claim that he had been framed for the rape and murder of Lisa Cabassa back in 1976. Evans spent 27 years in prison before being released in 2003 when DNA found on a rectal swab did not match Evans. An eyewitness, Judith Januszewski, testified that she saw Evans and his friend Paul Terry abducting Lisa Cabassa on the evening she disappeared. In their appellate brief, the defendants argued that the district court did not abuse its discretion in allowing testimony by police officers who fully complied with discovery. The defendants also argued that Evans' failure to ask the district court for additional time to conduct discovery waived any claim of prejudice. For example, the defendants' brief states "Tellingly, the primary relief Evans seeks is a remand to 'provide Plaintiff a reasonable opportunity to take fact and expert discovery. Evans never sought this relief from the district court, although the officers suggested it. Evans wanted to go to trial as quickly as possible. Evans apparently now regrets this strategy, but his gamesmanship should not be rewarded with relief he never sought below. Indeed, because Evans never asked the district court for more time for discovery, this argument is waived." (Defendants' brief at p. 38). Defendants are represented on appeal by Benna Ruth  Solomon (Deputy Corporation Counsel), Myriam Zreczny Kasper (Chief Assistant Corporation Counsel), and Jane Elinor Notz (Assistant Corporation Counsel). Evans is represented on appeal by Jon Loevy, of Loevy & Loevy, who was also Evans' lead trial counsel. At trial, the defendants were represented by Andrew Hale, Eileen Rosen and John Rock from Rock Fusco, LLC.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Jerry Miller, who was released from prison in March 2006, after being incarcerated for 26 years, recently had his conviction expunged due to DNA testing that showed he did not rape a 44 year old woman back in 1981 on the roof of a parking garage at 506 N. Rush Street in Chicago. Miller became a suspect when police officers thought he looked like a sketch of the attacker. Miller was brought in for a lineup and identified by two parking lot attendants. At trial, the victim testified that Miller looked like her attacker. Miller denied any role in the crime. After a trial, the jury found Miller guilty of rape, robbery, aggravated kidnapping and aggravated battery. Judge Thomas Maloney sentenced him to 45 years in prison. Miller's case was reviewed by the Innocence Project in New York, which triggered the DNA testing of the victim's slip. After Miller was excluded by DNA tests, the unknown DNA profile was submitted to the FBI's convicted offender database and a match was found. Miller was represented by assistant public defender William Wolf and Barry Scheck and Peter Neufeld from the Innocence Project.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Yesterday, DNA expert Kenneth Pfoser testified that DNA found on a partially eaten chicken dinner matched that of Juan Luna, who is on trial for murder in the Brown's chicken case. Pfoser works at the Northeastern Illinois Crime Lab. Also yesterday, John Onstwedder, a fingerprint expert, testified that Juan Luna's palm print matched a partial print found on a napkin recovered at the crime scene. Judge Vincent Gaughan is presiding over the trial.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Illinois State Police crime lab scientist Cecilia Doyle testified recently in the Brown's chicken murder case. Doyle testified that a DNA profile found on chicken bones came from at least one man. Doyle testified that she tested five swabs and got a mixture of DNA profiles and there was more than one contributor from the sample. Doyle also testified that the five swabs were eventually lost. The trial against Juan Luna is continuing in Cook County Circuit Court.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

After deliberating for 4 days, a jury of six men and six women found Steven Avery guilty of the Halloween murder of free lance photographer Teresa Halbach. The jury soundly rejected the defense's claim that the police planted evidence (Avery's blood) to frame him for the crime. Avery has been in the spotlight since 2003, when he was released from prison based on DNA testing after serving 18 years for a 1985 sexual assault. Avery becomes the first person in the United States exonerated by DNA evidence to be subsequently charged - and now convicted - of murder. Avery will be sentenced later this week and is expected to face life in prison.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Sherry Culhane, a forensic scientist in the DNA section of the Wisconsin State Crime Lab testified and defended her results that show Steven Avery as the origin of blood and DNA found in Teresa Halbach's sport utility  vehicle in 2005. Avery's attorneys argued that since Culhane's own DNA was found in a negative control sample (that is supposed to be devoid of any DNA), the tests should have been deemed inconclusive and new testing should have taken place. That can't be done, however, because the entire DNA sample was consumed during the initial testing.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Tuesday, October 17, 2006, a jury awarded Waukegan resident Alejandro Dominguez $9 million in damages in his civil rights lawsuit. Dominguez had sued the city of Waukegan and former Waukegan Police Lieutenant Paul Hendley.  Dominguez, now 33 years old, was convicted of rape in 1990 when he was 16 years old. He spent four years in prison. Dominguez later conducted DNA testing which showed that his DNA did not match DNA from the crime scene. In 2002, Illinois Governor Rod Blagojevich granted Dominguez an innocence pardon. Dominguez claimed that Hendley caused the rape victim to falsely identify Dominguez. Toward the end of the two-week trial, the court granted Waukegan's motion for a directed finding and the case proceeded solely against Hendley. The case was tried in the Northern District of Illinois before the Honorable Milton I. Shadur. Dominguez was represented by Jon Loevy from Loevy & Loevy. The defendants were represented by Waukegan attorney Mike Noonan.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link