By Dana M. Grimes, Esq.
Published: March 2010 "Trial Bar News"
That's the night the lights went out in Georgia,
That's the night they hung an innocent man.
- Reba McEntire, "The Night The Lights Went Out In Georgia"
When the Expert is Wrong: People v. Kenneth Marsh
In 1983, Kenneth Marsh was convicted of murdering 33-month-old Phillip Buell, who died from a head injury sustained when he fell off a couch. SDPD detectives originally classified the death accidental; however, prosecutors later charged Mr. Marsh with Phillip's murder. At trial, medical experts testified for the government that abuse was the only conceivable way Phillip could have sustained his injuries.
Justin Brooks, who heads the California Innocence Project at California Western School of Law, along with local attorney Tracy Emblem, sought habeas corpus relief for Mr. Marsh in October 2002. The San Diego District Attorney's Office hired an outside medical expert to review the evidence at the defense's request, after the defense team uncovered exonerating evidence. After the review, the D.A.'s office asked the court to grant Mr. Marsh's habeas corpus petition and release him pending a new trial. Less than a month later, the D.A.'s office dismissed the charges. Tracy Emblem indicates that this is a reminder to all trial lawyers to be on the lookout for inaccurate or overreaching medical testimony.
Eyewitness Testimony: People v. Adam Riojas
Adam Riojas was convicted of second-degree murder in Los Angeles in 1991, largely as a result of mistaken eyewitness identification. At trial, Mr. Riojas' attorney argued that he was at home in Oceanside at the time of the murder and an alibi witness testified accordingly, but to no avail. After Mr. Riojas spent over a decade in prison, Adam Ramirez Riojas, Sr. confessed to his family, before passing away, that it was he, not his son, who had been involved in the homicide.
The California Innocence Project took the case. Upon hearing testimony related to Riojas Sr.'s confession, a deputy district attorney stated on the record that he was "seriously concerned that this inmate may have been wrongfully convicted." Riojas was released after Governor Schwarzenegger chose not to block the unanimous decision of the parole board, which granted Riojas parole.
California State Senate Resolution No. 44 established The California Commission on the Fair Administration of Justice. The purpose of the Commission was to review the administration of criminal justice in California, determine the extent to which that process has failed in the past, examine safeguards and improvements, and recommend proposals to ensure that the administration of criminal justice in California is just, fair and accurate. The Commision's full report is available at http://www.ccfaj.org/.
In 2006, the Commission issued its first Report and Recommendations, addressing the problem of mistaken eyewitness identifications. The Commission proposed statewide guidelines for the conduct of lineups and the presentation of photographs to eyewitnesses, including some that one might hope would be self-evident, such as, "photo spreads and lineups should be presented to only one witness at a time."
One problematic area regarding eyewitness identification is level of certainty. While the Commission recommends asking witnesses their level of certainty, which should be "documented or otherwise recorded," psychological research indicates that there is no correlation between level of certainty and accuracy. Since levels of certainty lack reliability, we believe there is therefore a colorable argument that a witness' opinion as to level of certainty is not relevant and is unduly prejudicial under California Evidence Code § 352.
Research proves that the phenomenon of false confession occurs more often than most people assume, even those in the criminal justice system. The California Commission on the Fair Administration of Justice reports that false confessions are the second most frequent cause of wrongful conviction. One well-regarded national study reported that out of a group of 340 cases reviewed in which the defendants had eventually been exonerated, 51 of those defendants had falsely confessed. See Gross, Jacoby, Matheson, Montgomery and Patil, Exonerations in the United States 1989 through 2003, 95 J. of Crim. Law & Criminology 523, 544-545 (2005).
In the 1930s, the Supreme Court banned the use of physical force during interrogations. See, Brown v. Mississippi (1936) 297 U.S. 278, 286 (holding that the use of confessions to convict three African-American defendants who had been whipped and beaten by the police until they confessed to murder was "a clear denial of due process."). Now interrogators focus on deception, role playing tricks and various other mind games that can be as coercive as physical force. According to social psychologist Richard A. Leo, such tricks can cause a person to "temporarily doubt the reliability of his memory, to believe that he probably did, or logically must have, committed the crime in question, and to confess to it despite having no memory or knowledge of…the offense." For this reason, criminal defense attorneys take the position that police officers should videotape the entire interrogation, as opposed to simply turning the camera on when the suspect finally cracks and "confesses."
Police and Prosecutorial Misconduct: The Herman Atkins Case
Herman Atkins was sentenced to 45 years in a Riverside County trial for a rape and robbery he did not commit. In 2002, forensic scientist Edward Blake eliminated Atkins as a source of semen found on the victim's sweater. Atkins filed a civil suit alleging that a Riverside detective fabricated evidence and withheld exonerating evidence in the 1987 rape trial. He was awarded $2 million in civil damages after serving 12 years in prison. [NOTE: DNA evidence plays such a complicated and major role in exonerating innocent defendants that I will not attempt to summarize it herein. For a comprehensive analysis of how DNA evidence has evolved, and an interesting read on a number of local cases, see "Justice and Science" by Hon. George "Woody" Clarke.]
According to Peter Neufield, co-founder of the Innocence Project at the Cardozo School of Law in New York, half of wrongful conviction cases involve police or prosecutorial misconduct. Recently, the U.S. Supreme Court dismissed a case, Pottawattamie County v. McGhee and Harrington, which posed an interesting question: to what extent can prosecutors be held responsible under Section 1983 for violating the constitutional rights of defendants when they send innocent individuals to prison by knowingly procuring false testimony that leads to wrongful convictions? Or, more plainly stated, can prosecutors be sued by the innocent people they frame? Is there an immunity from prosecution when the prosecutors are guilty of misconduct?
In the case at issue, prosecutors were alleged to have framed two innocent men for a murder. The parties briefed Pottawattamie County v. McGhee and Harrington and argued the case before the United States Supreme Court on November 4, 2009, in case number 08-1065, which prompted renewed settlement negotiations. They agreed on a $12 million settlement, rendering moot the question of whether the prosecutors could have been sued for damages.
We are so fortunate that in San Diego, as Justin Brooks points out, our District Attorney's office is among the most cooperative in the state. Many D.A. offices stonewall the defense on innocence projects, but ours does not operate that way. Our district attorney's office supports bringing all available information to light when there are allegations that someone has been wrongfully convicted.
Ineffective Assistance of Counsel
The Sixth Amendment right to counsel guarantees not just assistance, but effective assistance of counsel. See, Strickland v. Washington (1984) 466 U.S. 668, 687; Duncan v. Ornoski (9th Cir. 2008) 528 F.3d 1222, 1233. to prevail on an ineffective assistance claim, a petitioner must demonstrate: (1) counsel's performance fell below "an objective standard of reasonableness" under prevailing professional norms; and (2) the deficient performance actually prejudiced the defense, such that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687-88, 694.
Innocent people are accused of crimes they did not commit and the wrongfully accused become the wrongfully convicted. Sometimes the potentially exonerating biological evidence dries up and sometimes it never existed to begin with. Evidence may be poorly collected or somehow lost. In San Diego, we do not have the same concerns with the fundamental integrity of our justice system that plague some areas of our country, such as parts of the rural south (and Riverside County). No matter how conscientious the police and prosecutors in any given jurisdiction may be, it is inevitable that innocent people will be accused of crimes. And even the best defense may not help when there is lack of evidence to help exonerate the defendant. But it is ultimately the job of the criminal defense community to guard the Sixth amendment right to effective assistance of counsel.
UPDATE-3/29/2010- In 1987, Michael Morton was convicted of murdering his wife. An episode of 60 minutes, aired last week, showed how this was as bad as it gets for wrongful convictions (except when the defendant has been executed before he is exhonorated, Morton spent 25 years in prison).
Barry Scheck's innocense project was able to get the file from the office of the District Attorney in Texas who prosecuted the case, after years of stonewalling by the Texas DA. This file contained exculpatory evidence, including witness descriptions of another suspect, that were never given to Morton's defense lawyers before his trial. The DA who allegedly withheld this critical information from the defense won an award as DA of the year, and is now a judge in Texas.
When a DNA test was recently done on clothing left at the crime scene, it identified the true murderer (who has finally been arrested). He has also been identified, by DNA, as the murderer of another victim after Morton was convicted, and the case on his wife's murder was closed.