Miscarriages of Justice Actual Innocence, Forensic Evidence, and the Law Brent E. Turvey Craig M. Cooley Amsterdam • Boston • Heidelberg • London New York • Oxford • Paris • San Diego San Francisco • Singapore • Sydney • Tokyo Academic Press is an Imprint of Elsevier Academic Press is an imprint of Elsevier The Boulevard, Langford Lane, Kidlington, Oxford, OX5 1GB 525 B Street, Suite 1800, San Diego, CA 92101-4495, USA First published 2014 Copyright © 2014 Elsevier Inc. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher. 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To the fullest extent of the law, neither the Publisher nor the authors, contributors, or editors, assume any liabil- ity for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions, or ideas contained in the material herein. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book is available from the Library of Congress ISBN: 978-0-12-411558-3 For information on all Academic Press publications visit our website at store.elsevier.com Printed and bound in the United States 14 15 16 17 10 9 8 7 6 5 4 3 2 1 Preface IDENTIFYING MISCARRIAGES OF JUSTICE “...the U.S. indigent defense systems—which provide representation to those who cannot afford it—are in financial crisis, plagued by crushing caseloads and insufficient resources. And this year’s forced budget reductions, due largely to sequestration, are further undermining this critical work.” Eric Holder (2013) Attorney General United States of America Miscarriages of justice are most commonly told as stories through the eyes of defense attorneys and their clients. This is no mistake. The defendant expe- riences a miscarriage of justice in the most personal, painful, and profound way—as a series of wrecking balls, shattering the foundations of his or her life in successive blows. Very often careers, homes, friends, family, and all other supporting resources are beaten from the defendant until only the most faithful remain. If there is a criminal conviction, things are much worse (see Figure 1). If the conviction occurs in the context of a capital case, the consequences are not just brutal and isolating; they are enhanced by living with the constant threat of the death penalty.1 Defense attorneys witnesses this obliteration with a front row seat. Sometimes they do all they can and it isn’t enough, sometimes they are deprived of suffi- cient resources to mount even the most basic defense, sometimes the deck is stacked against them by the police, the prosecution, and the courts, and some- times they are professionally negligent and even complicit in the miscarriage. Consequently, on one hand, a defense attorney might be competent and expe- rienced enough to know when these things are happening, and on the other hand, he or she might not. 1 For a revealing memoir detailing the experiences of a death row inmate who has since been released from prison, see Life After Death, by Damien Echols (2013). One of the authors (Turvey) served as a defense expert ix in that case during postconviction, discussed in Chapter 5, “Police Interrogations and False Confessions.” x Preface Figure 1 Damien Echols pictured at the time of his arrest in 1993 (left). Upon his release from death row (along with co-defendants Jason Baldwin and Jesse Misskelley), Echols wrote a compelling memoir of his experiences that he titled Life After Death (2013; right). The only one of the so-called West Memphis Three to receive the death penalty, Echols spent much of his time in solitary confinement. One of the authors (Turvey) worked for the West Memphis Three defense during postconviction, testifying about the investigative and forensic shortcomings evident in the prosecution’s case. See Chapter 5 for a discussion of the case. Both the defendant and the defense attorney can become compelled, as a result of their experiences, to tell the story—often through books, films, and inter- views with the media. Ultimately, they are uniquely capable of doing so: they have personally observed and felt the impact of the miscarriage, and they also have access to case material. The miscarriage is, inevitably, their story to tell. However, this also means that the literature currently associated with miscar- riages of justice is dominated by the perspectives of criminal defendants and defense attorneys. Their narratives are intended for the general public or specifi- cally for those operating within the legal community.2 The language is therefore 2 A well-known example is the groundbreaking work Actual Innocence by Scheck, Neufeld, and Dwyer (2000), which details the stories of ten men wrongfully convicted and then exonerated by DNA with the help of the Innocence Project in New York. Preface xi Figure 2 U.S. Attorney General Eric Holder speaking before the American Bar Association in San Francisco (August, 2013). Mr. Holder has played a high-profile role in identifying and addressing miscarriages of justice during his tenure. In 2009, he dismissed the case against former Senator Ted Stevens due to egregious FBI and prosecutorial misconduct (see discussion in Chapter 11). In 2013, he spoke publicly about the underfunding of indigent defense in relation to government budget reductions and how this has harmed the cause of justice. almost invariably a mix of true crime and legalese. Although these voices are necessary and valuable, they represent a very specific set of agenda-driven view- points. To inform a broader array of criminal justice students and professionals, a more professionally inclusive approach to the subject is called for. The purpose of this textbook is to move beyond the law review, casebook, and true crime publications that comprise the miscarriage literature. While informa- tive, they are not designed for teaching students in a classroom setting. This text is written specifically for use at the undergraduate level in journalism, sociology, criminology, and criminal justice programs to introduce college students to the miscarriage phenomenon in a structured fashion. The language is more broadly accessible than can be found in legal texts, and the coverage is multidisciplinary. The reality is that miscarriages of justice are a regular occurrence in the criminal justice system, which is characterized by government agencies that are under- staffed, underfunded, and undertrained across the board. This is especially true of the indigent defense system, in what Eric Holder, Attorney General for the United States (see Figure 2), has referred to as a “shameful state of affairs” (Holder, 2013)—so much so that defendant poverty can conspire to create legal guilt as a foregone conclusion in some regions of the United States—if not also to ensure lengthier prison stays. Criminal justice students and professionals therefore have a need to be made aware of the miscarriage problem as a threshold issue. They need to know what xii Preface a miscarriage of justice looks like, how to recognize its many forms, and what their duty of care might be in terms of prevention. They also need to appreciate that identifying miscarriages, and ensuring legal remedy, is an important func- tion of the system that must be honored by all criminal justice professionals. This text ultimately presents the issue of miscarriages as a systemic and mul- tidisciplinary criminal justice issue. It provides perspectives from within the professional CJ community, and it serves as warning to future professionals about the dangers and consequences of apathy, incompetence, and neglect. Consequently, it can be used by any CJ educator to introduce any group of CJ students to the problem. It is our hope that they will do so faithfully in service of justice. Brent E. Turvey and Craig M. Cooley References Echols, D., 2013. Life After Death. Plume, New York, NY. Holder, E., 2013. “Defendants’ legal rights undermined by budget cuts,” The Washington Post Op- Ed, August 22. http://www.washingtonpost.com/opinions/eric-holder-defendants-legal-rights-un- dermined-by-budget-cuts/2013/08/22/efccbec8-06bc-11e3-9259-e2aafe5a5f84_story.html. Scheck, B., Neufeld, P., Dwyer, J., 2000. Actual Innocence: Five Days to Execution, and Other Dis- patches from the Wrongly Convicted. Doubleday, New York, NY. Foreword WRONGFUL CONVICTIONS: UNDERSTANDING CAUSES AND CONSEQUENCE As of this writing, there have been over 1200 exonerations of the wrongfully convicted in the United States. That number climbs every week. These miscar- riages of justice are undeniable, and serve as proof of the flaws in our criminal justice system that cannot be ignored. However, as this text demonstrates, they can be identified and corrected. My first experience with wrongful convictions came when I began working on state postconviction appeals for people on death row in Florida (when some- one is convicted of capital murder, most states automatically assign the case to an appellate public defender of some kind for a required appellate review). The idea that any of the convicts sitting on death row could actually be innocent never entered my mind—until some attorneys in my office exonerated one of them. From these early experiences working capital appeals, through my time representing men sentenced to death in federal habeas corpus (the last round of criminal appeals), I came to believe that several of my clients could be innocent. This was not the result of wishful thinking on my part, but rather it came as the natural result of thorough review. The more I dug into their cases, the more I saw shoddy police work, shoddy defense work with no investigation, inconsis- tencies in witness statements, dubious work and testimony from prosecution criminalists (forensic scientists), and alleged facts and eventual theories that didn’t quite add up. I kept asking myself how this could happen. More impor- tantly, I wondered whether anything could be done to prevent it. During this time, I also learned that the wrongfully convicted (while actually innocent) come from all walks of life. However, they each share a similar hor- rific experience. They have been swept up into a broken system where a mul- titude of factors combined to result in their incarceration. This is difficult to appreciate from the outside looking in. Ultimately, I came to see that it is not only innocent defendants who suffer when a miscarriage of justice occurs, but also their families and friends, to say nothing of the victims of these crimes xiii xiv Foreword who are left without genuine closure. As a result of my experiences, I came to believe that understanding and exposing the many causes and consequences of wrongful convictions is probably the best way to prevent them from hap- pening in the future. The causes of wrongful convictions are well known within the legal commu- nity. They include things like eyewitness misidentification, false confessions, ineffective assistance of counsel, and faulty forensic science. They are not usu- ally isolated to single cases—they are usually systematic, as the professionals within the system who cause or allow the problem will work on many cases throughout a career. In other words, when there is one, there is going to be more than one. Only by studying the cases and underlying causes can further miscarriages be revealed, along with realistic systemic solutions. What is known is that people make mistakes on a lot of levels. Evidence is not collected which prevents a complete understanding of a crime. Perhaps a witness is not interviewed or investigators dismiss as irrelevant evidence that conflicts with their theory of the case. Defense attorneys fail to conduct their own independent evaluation of the evidence or dismiss pleas from a client claiming innocence. The court system denies requests for additional funds for investigative aids or experts to challenge dubious results from an overworked crime lab. These events com- bine and conspire on cases every day across the United States, creating a heavy barrier to the truth. As a consequence, it can take years to pull back the layers of bias and error that keep an innocent defendant behind bars. Fortunately, diligent criminal justice professionals and new technologies con- tinue to shed light on miscarriages of justice. The answers are not only found by the defense attorneys who challenge these cases at trial and throughout various levels of appeals, but also by law enforcement, crime scene analysts, prosecutors, judges, and investigators. As more people are found innocent based on a wide variety of newly discovered evidence or constitutional viola- tions, it shows the vigilance of the professionals that are involved. It also shows that CJ professionals, their efforts, and the evidence must always be in order to help ensure that the innocent are not convicted—because wrongful convic- tions keep happening. Vigilance against miscarriages of justice is not only the mandate of those work- ing at innocence projects, but also of a growing number of state and federal organizations interested in preventing them before they occur. Such efforts focus on improving the system. Restructuring how eyewitness identification procedures are done by police officers may curb the high frequency of eye- witness misidentifications. Recording both the entire interrogation and con- fession of a suspect will decrease the likelihood of a false confession. Placing broad requirements on disclosure of bench notes, interview reports, witness Foreword xv reports, and similar investigative documents will decrease the occurrence of police and prosecutorial misconduct while also improving the quality of defense provided. These measures and many more discussed within this text can help stem the tide of wrongful convictions and help identify those already suffering such fates. As the director of an innocence project, I work with students every day at dif- ferent levels of education. Many undergrad students are fascinated by how the criminal justice system works but see very little practical discussion of what goes on, aside from what they see on television or in movies. Additionally, very few undergraduate courses involve discussions of the rising tide of wrongful convictions, and how there are numerous opportunities to fix the problem. Such discussions are desperately needed. By reading this text, students will begin to see the complexities of the miscar- riage issue. They will also realize that you don’t need to be a lawyer to help cor- rect the justice system. They will learn that it is often the work of people who aren’t attorneys bringing injustices to light, and helping to fix them as well. This understanding will help guide them as they become criminal justice pro- fessionals themselves, and make the criminal justice system all the better for it. I hope you understand that while mistakes happen, they also can be fixed. Tiffany Murphy, J.D. Director of the Oklahoma Innocence Project About the Authors CRAIG M. COOLEY, J.D. Craig M. Cooley served as a staff attorney with the Innocence Project in New York City for five years, where he represented indigent inmates from across the United States trying to prove their innocence with DNA testing. Mr. Cooley obtained DNA testing for several of his clients that ultimately exonerated ten innocent prisoners. Prior to joining the Innocence Project, Mr. Cooley served as an Assistant Federal Defender in Las Vegas, Nevada, where he represented Nevada death row inmates pursing federal habeas relief. Prior to attending law school, Mr. Cooley received his graduate degree in foren- sic science from the University of New Haven and his undergraduate degree from the University of Pittsburgh. During law school, Mr. Cooley served as an investigator with the Office of the State Appellate Defenders, Death Pen- alty Trial Assistance Division in Chicago, Illinois, where he provided assis- tance on several cases affected by Governor George Ryan’s 2003 pardons and commutations. A graduate of Northwestern School of Law, Mr. Cooley has served as an adjunct professor of law at St. John’s School of Law, Hofstra School of Law, and Car- dozo School of Law. His scholarship includes articles in Stanford Law & Policy Review, Indiana Law Journal, George Mason University Civil Rights Law Journal, New England Law Review, and other law journals and reviews. Mr. Cooley is currently a criminal defense attorney in private practice, with offices in North Carolina and Pennsylvania. He can be reached at [email protected]. BRENT E. TURVEY, PH.D. Brent E. Turvey received a B.S. in psychology, with an emphasis on forensic psychology, and an additional B.S. in history from Portland State University. He went on to receive his M.S. in forensic science from the University of New xvii Haven. He also earned his Ph.D. in criminology from Bond University.