Lineup reform on the horizon in Illinois?

Having worked on numerous wrongful conviction cases caused by misidentifications, I am quite interested in lineup reform efforts, especially in Illinois. Mistaken eyewitness identifications are at or near the top of the list of causes of wrongful convictions. Yet many identification “mistakes” are avoidable.

It doesn’t take a rocket scientist—or even a social scientist—to figure out that if the police officer running a lineup doesn’t know who the suspect is, the officer can’t make improper suggestions to the witness (either accidentally or on purpose) about who to identify. Nonetheless, “blind administration” of lineups is still the exception rather than the rule.

That could soon change, at least in Illinois.

House Bill 802, sponsored by two former prosecutors (State Representative Scott Drury and State Senator Kwame Raoul), sailed through the General Assembly and is awaiting Governor Quinn’s signature. If the Governor does nothing, the bill will become law on August 25, 2014. House Bill 802 contains several provisions designed to increase the accuracy of identifications. One key requirement is that lineups be run by “independent administrators” when possible, and when not possible, that police use a method whereby the officer running the lineup cannot see which photographs or individuals the witness is viewing until after the lineup is over. This will help prevent suggestiveness from creeping into the procedure.

Another critical feature of the legislation is that physical and photo lineups are to be videotaped—again, where practical. Thus, we can expect to see a dramatic reduction of “he said-she said” disputes (usually between officers and defendants) over what actually happened during the lineup. Did the officer tap her finger on the photo of the suspect, or didn’t she? If the procedure is videotaped, the answer will no longer be in doubt. This should benefit law enforcement by reducing the number of claims of misconduct against police officers—just like videotaping police interrogations has lowered the number of claims of coerced confessions.

Assuming Illinois House Bill 802 becomes law, I am hoping that it is the first in a series of improvements to identification procedures that will make crime investigation more accurate and fair to all. An added bonus is that it will allow my colleague Josh Tepfer to check off #4 of his 2014 Criminal Justice Resolutions.

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Exonerees and mean friends

One of my favorite radio shows, “This American Life,” re-broadcast an episode called “The Allure of the Mean Friend.” It included the story of a man whose father sent him a bill for $2 million, which purportedly represented the cost of his childhood.

This put me in mind of a singular event that happened many years ago to a Center on Wrongful Convictions client: After he received state compensation for his wrongful incarceration, family members presented him with a bill for expenses they had incurred while he was in prison, such as collect telephone calls and commissary money they had provided to him.

Thankfully, this was an aberration—though of course relatives and friends of the wrongfully convicted do suffer extreme financial and emotional loss. More often, it is the government that is the “mean friend.” For instance, it is not a singular event for a state to demand payment from an exoneree for failing to support his or her children while in prison. Think about it: The government yanks an innocent person away from parental duties and pleasures, then sends a bill for public funds expended on the children while the parent was behind bars. Can you imagine?

Last year, the state of Washington enacted a new compensation law that addresses “mean friends.” Besides offering $50,000 for each year of wrongful imprisonment (generally accepted as the minimum acceptable sum), the statute reimburses for child support debt as well as court costs associated with the wrongful conviction. The new law also prohibits the state from deducting prison costs, such as food and clothing, from the financial award—thereby preventing the ultimate “mean friend” grab.

While the Washington statute is by no means perfect, these provisions should be standard in state compensation laws. Nothing can repay an innocent person for decades wasted in prison, but at least we can refrain from piling on debt that would not exist in the first place except for the wrongful conviction.

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A long road of litigation

On Jun 16, 2013 (Father’s Day), I posted the following to my facebook account:

Kids and wife had to leave town (miss them terribly) so I had a different type of Father’s Day. Spent it at the office drafting a motion for my client, father of two girls who love him dearly but who only know him through prison walls. Taken 20 years ago, coerced to confess, and in prison ever since. Thinking of you today my friend and praying we get u home for a Father’s Day soon.

Within three months, my team and I did file the motion. The motion wasn’t asking the court to let my client out of prison, or even for a new trial. The motion actually was a request to allow my client to re-open a case – in essence, it was a motion asking the court to allow us to ask the Court for a new trial. A variety of procedural legal hurdles required us to take that step. I was well aware that even if we won this first motion, we would have a long road ahead of us to actually win the case and exonerate our client.

Today is July 28, 2014. We are nearing a year since we filed our request to the Court to allow us to ask for a new trial. We still don’t have an answer. My client has already spent another Father’s Day in prison and, realistically, even if we do win the case, he is probably going to spend the next and probably even the next in prison before that ever happens.

And nothing about this situation is unusual. I’m not criticizing how anyone within this individual case has handled the situation. The motion we filed was extensive – it took us a lot of time to investigate the facts, research the law, and prepare the written pleadings. I’m sure it took a lot of time for the prosecutor, and now the Judge, to review what we filed. So, I’m really not at all surprised as to where we stand 13+ months after I wrote that facebook post. From my experience, almost all cases within an extremely overburdened criminal justice system take a lot of time.  

That said, I think there is a tendency for delays to be exacerbated in the post conviction context. Judges, prosecutors, and defense attorneys that I respect have all expressed to me (off-the-record) that post-conviction litigation is the bane of their existence. All of us like checking things off our to-do list – when something that you long ago checked off yours resurfaces, it is annoying. There is a strong inclination to push it to the backburner. I know stories of strong, and ultimately successful post-conviction innocence claims taking a decade, if not more, merely to litigate in the lower court.

I think the players in our criminal justice system have to fight through this inclination and begin to prioritize these post-conviction innocence cases, or at least put them on par with their current, pre-conviction docket. The conviction of innocent men and women is a national crisis. 1,404 identified cases since 1989 according to the National Registry of Exonerations. And in 2012, the last time the Registry examined issued a report on the specific question and when there were only 873 exonerations identified, all but 7% were in murder, rape, or other violent crime cases. Think about that for a second – even assuming only 90% of the 1,404 cases now-identified were for serious crimes, that means 1,263 have been convicted wrongfully of the most serious offenses and likely given long prison sentences. That is a scary figure to me.

When legitimate claims of wrongful conviction are presented to courts, we need to try and get them resolved. In the case I reference above, we put forth substantial evidence proving the State’s key witness lied, newly known medical documents demonstrating that our client may have been physically incapable of committing the crime, and a detailed, powerful, under oath confession from the individual we believe is the true perpetrator. Isn’t it in everyone’s interest to figure out rather quickly whether our evidence is credible and viable?

I’m hopeful that the tide may be turning. I’m heartened by the continued proliferation of wrongful conviction projects, including prosecutor-initiated conviction integrity units. I’m especially heartened to read stories like this: Dallas prosecutor Craig Watkins reviewing and re-investigating old convictions without even a particularized request and his calls for other prosecutor offices to do the same.

Let’s hope the power brokers in the criminal justice system listen to this call to action from Prosecutor Watkins. Speaking from experience, beyond their importance, the cases are very interesting (legally and factually), and when contested, they are fun to litigate. Time to put them on the frontburner!

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Royal Albert china, wrongful convictions, and Mother’s Day

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The mothers you meet doing innocence work.

I was on a team that represented Julie, a young divorced mother imprisoned for murdering her 10-year-old son Joel. At her retrial we proved that someone else committed the monstrous act; Julie was not only acquitted but was found factually innocent.

Julie is one of two children of Jim and Jane, a pastor and his wife. Joel was their only grandson, and during Joel’s short life, his mother and grandparents showered him with love. Joel’s murder devastated all of them, and they were not prepared for the ensuing unfounded accusations against Julie.

Jane and Jim rose to the occasion, as devoted parents tend to do. They tried to protect Julie from the police; they testified at her trial; they unwaveringly supported her throughout the legal proceedings and her incarceration. Jane amassed a file of case-related documents that any detective or investigator would envy.

During the years I represented Julie, Jane was a constant presence in my life as well. She urged the Center on Wrongful Convictions to take Julie’s case. After we did, she constantly provided information and encouragement. She sent inspirational notes. She and her friends offered up much-needed hospitality when we were working on site, far from our Chicago home base. She hugged us frequently.

But Jane was also the fierce mama bear. She kept close tabs on the legal team and made sure we were properly representing her daughter. She called us out when we were not responsive. She fund-raised and galvanized public support for her daughter’s cause. No mother’s love could have been stronger than Jane’s constant efforts to prove Julie’s innocence.

After Julie’s acquittal, I was incredibly touched when Jane sent me a Royal Albert Old Country Roses English tea set, knowing how much I love my tea. I have few possessions as beautiful as this, or as dear to me. Over the years, on the anniversary of the acquittal, Jane and Jim have often sent additions to my set, over my protestations that it’s all too much.

I love this family – not because of the gifts, but because of their goodness and their love and loyalty to one another. I ache for their tragedy, which I can never truly comprehend. What I do know, though, is that I am incredibly fortunate to have met them through my work and to now have a lifelong connection to them.

On Mother’s Day, Julie will mourn the son who was taken from her. Jane and Julie will celebrate their special bond. And I will make tea for myself and serve it in Royal Albert china.

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What a Wrongful Conviction Lawyer Thinks About After a Kindergarten Dance

About a month ago I went to my first Daddy-Daughter Dance. My daughter is six and in kindergarten. For where I am in my life, this dance was considered a big night out. My daughter is still at a point where dancing and hanging out with her Dad is fun and maybe even cool. I am very cognizant that my days are numbered. But we danced, ate pizza, and sang along with the music. (By the way, is it just me, or is the current state of pop music actually kind of awesome? Probably just me.) Anyway, I had a fantastic time.

Let me tell you a little bit about my daughter. She is truly the kindest, most thoughtful person I know. She genuinely cares about other people, and their feelings. Even when she gets mad at her brother, you can see she immediately regrets and feels awful about any name she calls him (even though he couldn’t care less). She also is a rule follower. I think the rule following and the kindness go together. She doesn’t want to rock the boat because she doesn’t want to upset anyone.

Back to the dance. While my daughter is well-liked by everyone in her class, she is part of a group of four girls that are close friends. Her teacher calls them the Core Four. The Core Four were all at the dance with their Dads, and they spent all of their time together. And as I watched the Core Four, I could see clear signs of the group dynamic at play. The Core Four has a clear leader that is not my daughter. Almost exclusively, it was the leader who would make decisions on where they would dance, or when they would go eat pizza, or have their photos taken. The other three followed her lead.

Now, sometimes the leader would have a more controversial idea. It might have been crawling to the floor as part of a dance move, or asking one of the Dads some sort of silly question. And I’d watch my daughter when something like this would happen. She’d kind of give me a quick glance and a half-smile, like she was checking to see if I fundamentally disapproved, while almost simultaneously following suit. But the quick glance really was just a millisecond, and her clear instinct was to just follow her leader.                                                                                              

I keep thinking about this dynamic as questions of juvenile crime and punishment continue to be grappled with both in the criminal justice world and in the public consciousness. In the March edition of the great criminal defense periodical The Champion, an issue which is entirely devoted to juvenile justice (you must be a member to see more than a summary of the articles, and, full disclosure, I have an article in the issue), my friend Maureen Pacheco writes: “These are historic times in the development of law pertaining to juveniles. . . . Advocates are pushing the courts and legislatures to recognize that young people are capable of change and society should never give up on them.” As part of its Retro Report series, The New York Times put together a tremendous 10-minute documentary revisiting “The ‘Superpredator’ Scare,” an early 1990s mythology that forecasted a wave of immoral, ruthless juveniles committing heinous crimes, a prediction that led to many of our current get-tough-on-crime policies and sentencing many young people to a lifetime of imprisonment. Another friend, John Maki, recently and compellingly argued that It’s Time to Abolish Automatic Transfer of juveniles to adult court.

So, what does a kindergarten dance and my daughter dancing on the floor with her friends or asking a silly question have to do with juvenile justice? Maybe nothing, but maybe something. As I witnessed with my own eyes these kindergarten group dynamics and some very, very innocuous peer pressure, the juvenile justice reform movement resonated with me in a way it never had. If my six-year-old daughter could be so easily talked into dancing on the floor when she was uncertain if Daddy would think it was okay, is it that ridiculous to think she could be talked into something slightly worse, something a little riskier, or something maybe even criminal when she is 11? Or 13? Or 15? Don’t the peer pressures get even worse? Aren’t the self-doubt and lack of confidence at an all-time high in adolescence and early teens? Could even my sweet daughter, who hates to rock the boat, find herself in such a situation?

While I’ve always believed in the progressive juvenile justice reforms many of my colleagues at the Children and Family Justice Center fight for on a daily basis, I feel like I’m beginning to understand it in a new way. So when I first read, for example, about the felony arrest of a 13-year-old boy for throwing a snowball at a police officer, I thought it was incredibly stupid. But when I read a follow-up report about the case after the Daddy-Daughter Dance, the true and utter ridiculousness of the charges became that much more clear to me. How many young people wouldn’t respond to fifteen peers daring them to throw a snowball at a car, even a police car? A few years from now, it very well could be my daughter on the receiving end of that dare. I imagine even someone with her genuine kindness – who doesn’t want to hurt anyone – could easily be so persuaded.

And thinking about these issues with a more traditional wrongful conviction lens, I have the same thoughts. While I have studied and written repeatedly about how suggestible youth are and how susceptible they are to false confession during police questioning (see, for example, my article in The Champion), I am starting to get more clarity about how truly easy it would be for a police officer to persuade a young person to sign on with a false narrative. I have one case where my teenage client (teenager1) is serving life in prison because teenager2 was persuaded by police to tell a story: Eight months after teenager2 initially admitted his own involvement in throwing rocks at a car that subsequently led to teenager3 discharging a gun, teenager2 told a supplemental story that this time included teenager1 (my client) encouraging the group to go for it and throw those rocks. During this supplemental story, my client wasn’t even there – the encouragement was an hour earlier.

It has really hit me of late how absolutely simple it would be to persuade teenager2 to tell that false story – how could he ever think that doing so would land my client in prison for life? And even if I’m wrong – and I don’t think I am – and my client (teenager1) did really tell that group to throw those rocks, the true absurdity that this singular act by an adolescent boy is even criminal, let alone could land him in prison for life, has struck me in a new way since that fateful Daddy-Daughter Dance.

                                        

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