Illinois embraces eyewitness expert testimony

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Today’s landmark decision by the Illinois Supreme Court in People v. Lerma will contribute to greater accuracy and fairness in criminal trials. Previously, expert testimony about eyewitness identification was disfavored in Illinois, based largely on the Court’s previous decision in People v. Enis. Criminal court judges routinely denied defense requests to call eyewitness identification experts even in prosecutions based solely on eyewitness testimony.

In today’s Lerma opinionhowever, the Court reviewed the current social science research on eyewitness error and the leading decisions from other state courts, and concluded:

“[I]n the 25 years since Enis, we not only have seen that eyewitness identifications are not always as reliable as they appear, but we also have learned, from a scientific standpoint, why this is often the case. Accordingly, whereas Enis allowed for but expressed caution toward the developing research concerning eyewitness identifications, today we are able to recognize that such research is well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony.”

Expert testimony is critical because many contributing factors to mistaken identifications are not known to the average person. For instance: (1) an eyewitness’s certainty does not necessarily correlate to accuracy; (2) cross-racial identifications are less accurate than same-race identifications; (3) the presence of a weapon causes a witness to focus on the weapon rather than the person, increasing the likelihood of a mistaken identification; (4) the stress of experiencing a crime makes it difficult to correctly identify the offender. These are but a few examples of principles that may be unfamiliar or counterintuitive to the average juror, but can be explained by an expert based on scientific research.

Truly, the Lerma decision is a game-changer for future Illinois criminal trials. I can attest to this from personal experience, having been devastated when a judge excluded an eyewitness expert from the trial of a client whom I wholeheartedly believed was innocent, but who had been identified in a questionable identification procedure.

Mr. Lerma was ably represented by Linda Olthoff of the Office of the State Appellate Defender. The Innocence Network, of which the Center on Wrongful Convictions is a member, filed an amicus brief written by a wonderful team of attorneys from Quarles & Brady.

It is a good day when the law catches up to science.

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Guest post about Jane Raley by Linus Chan (’02)

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My name is Linus Chan and I teach an immigration clinic at the University of Minnesota. Being a student at a law school clinic can often be a transformative experience. Over my career as a clinical teacher, I have had to often think back and wonder what it is that makes clinics special. What is it about clinics that makes the experience valuable and often transformative? There are many possible answers – from meeting and learning client stories, taking ownership over a real case, to exercising advocacy skills in a meaningful way. But an answer that doesn’t get talked about more – is the close, personal relationships we get to have with our clinic supervisors. In many ways our clinic supervisors are the first true “lawyers” we get to observe and often the lawyers that we end up trying to model ourselves after.

I became a clinical student in the Fall of 2000, and was lucky enough to be one of the first students that Jane Raley and Karen Daniel supervised. I didn’t know much about either one of them, but quickly learned what formidable lawyers they were. What a great duo they made! My time as a clinical student was transformative. Meeting clients, including conducting interviews, or reading over intake letters were all part of a meaningful experience. But my time in the clinic was transformative because of how much I got to know the wonderful advocates for the Center. Larry Marshall was this brilliant and passionate advocate who seemed to be able to persuade anyone of anything. Karen Daniel was intimidating in her intellect and her ability to understand difficult and complex issues. Rob Warden seemed like an uncle of the whole project, able to share insights that no one else had and history and stories that no one else would tell. I learned so much about being a lawyer just from being able to observe and interact with these wonderful advocates. But – when it came to Jane Raley, well it was my time with her that changed me the most.

Working with people that the law has failed can breed cynicism and pessimism. There is so much to be righteously angry about and so often as advocates we tend to be the unfortunate witnesses of pain, tragedy and injustice. And yet when I think back to one of my first templates of a passionate attorney – I think of Jane Raley and her seemingly endless well of energy. This field of work attracts passionate, compassionate and energetic people and Jane was no different. But Jane was different in a way that perhaps I didn’t appreciate as a student more, but do appreciate now. Jane was enthusiastic – about her work, about her clients and about her students. This enthusiasm was such a positive force. It was infectious not just to her students, but to her clients. Her enthusiasm has helped the wrongfully imprisoned to stay hopeful, helped struggling law students and has helped me to remember what a privilege it is do work in service of people. Of course Jane is more than a template or model advocate, and I do miss her. I miss the excitement in her voice, her relentless encouragement and how when she would get excited, her whole body would shake.

Linus Chan is currently a Visiting Associate Clinical Professor of Law at the University of Minnesota Law School, where he teaches a Detainee Rights Clinic in the Center for New Americans. He is a 2002 graduate of Northwestern University School of Law, and a Center on Wrongful Convictions clinic student for two years. This guest post was contributed on the occasion of the Wrongful Convictions Symposium in Honor of Jane Raley on November 12, 2015, which Professor Chan was unable to attend.

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Things aren’t always as they seem (reflections on Joe Gliniewicz, Patrick Kane, and wrongful convictions)

The September funeral for Fox Lake (Illinois) Lt. Joe Gliniewicz was attended by thousands, and his death was cited by some as emblematic of a “war on cops.” Gliniewicz is now being portrayed not as a brave police officer gunned down in the line of duty, but rather as a criminal who stole money from an after-school program and consciously staged his suicide to look like murder so as to cover up his misdeeds.

Many commentators called on the NHL to suspend Chicago hockey star Patrick Kane in August after he was accused of sexual assault in New York. Kane is currently attempting to return to normalcy on the ice now that his accuser has formally declined to prosecute. This development followed a bizarre incident in which the accuser’s mother allegedly made a false claim that a rape-kit bag had been tampered with.

I enjoy following a juicy news story as much as the next person, and I certainly followed these two sagas in real time. Did I, or the news media, or anyone outside the circle of people personally involved, know what the real facts were? Of course not, but that did not stop the reportage of every salacious development, nor did it stop members of the public from expounding and debating as if the facts were undisputed. For that matter, I still cannot say I know the true story regarding either Gliniewicz or Kane; all I know is what I have read and heard in the media.

The Center on Wrongful Convictions freed client list is similarly filled with stories that were front-page news after the incidents occurred. It turned out that those original accounts got the facts all wrong—most significantly the identities of the perpetrators, but often other key details as well.

In the criminal justice system, “finality” is highly valued, and it usually takes a herculean effort to disturb a conviction years later based on a new factual theory. It is worth remembering, however, that the first story may not always be the true story.

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Returning to Prison for the Right Reasons

Hannah Overton, a loving mother of five, languished behind bars for seven years due to a wrongful conviction based on the tragic but non-criminal death of her foster son. The televised images late last year of Hannah leaving jail with her family brought tears to my eyes. I thought to myself that if I were she, I would do little more than nest at home and pamper myself for the foreseeable future.

Just recently, I read that Hannah had returned to prison – but this time, she was there to visit and counsel. Hannah started a prison ministry while she was locked up, and she plans to continue her service to prisoners even after winning her freedom.

Hannah is by no means the first exoneree to give back after leaving prison. One who comes readily to my mind is my former client Dana Holland, who had the distinction of being wrongfully convicted of two separate crimes, for which he was sentenced to 118 years. After a decade of incarceration, Dana was exonerated and left jail on June 6, 2003. Less than six months later, I was shocked and profoundly moved when he told me he planned to return to the same jail to help serve Thanksgiving dinner to the inmates. Like Hannah, Dana led a Bible study and counseled other inmates while on the inside. Like Hannah, he could not simply walk away after his release.

In a similar vein, Sunny Jacobs and Peter Pringle – an improbable married pair of former death row inmates (she of the United States, he of Ireland) – have offered up their beautiful Irish home as a sanctuary for exonerees. Other formerly incarcerated men and women have started foundations, worked with students, volunteered with innocence organizations, and helped ex-prisoners on a one-to-one basis.

The comedian Louis C.K. talks about the importance of being useful: “if you can be useful, it just makes you feel better.” As Hannah, Dana, and many more exonerees have demonstrated, it’s a win-win situation.

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Wrongful Convictions and the Purvi Patel Appeal

What a relief that Center on Wrongful Convictions co-founder Larry Marshall will handle the appeal of Purvi Patel, an Indiana woman unjustly sentenced to 20 years in prison for feticide and neglect of a child. I have been closely following this case, on behalf of the CWC Women’s Project and out of great personal interest, and every aspect is disturbing—from the nature of the charges to the holes in the prosecution’s evidence to the sentence imposed.

The defense contended that Ms. Patel miscarried and that her baby was stillborn; if this is true, obviously there was no crime. As it happens, nearly two-thirds of proven wrongful convictions of women were in “no-crime” cases.

The prosecution’s theory was that Ms. Patel committed feticide by taking illegal abortion drugs, and, incongruously, that she committed neglect by delivering, at home, a live but very premature baby who died a few seconds after birth. The evidence supporting this theory was highly problematic and Larry will certainly bring out its weaknesses during the appeal. Indeed, Ms. Patel could hardly have chosen better in engaging Larry as pro bono appellate counsel. What is chilling about this case, though, is the unveiled threat to women that once they become pregnant, they lose autonomy over their own lives and may be criminally liable if they are deemed to have fallen short in guaranteeing a healthy birth.

Ms. Patel’s sentence is every bit as outrageous as the charges. In what universe does a woman with no criminal background, who was hiding her pregnancy due to fear of her family’s disapproval, deserve twenty years behind bars for neglect because she panicked after her baby came early? Most rapists and batterers get off with much less.

Some folks in criminal justice consider wrongful convictions to be “wrong person” cases, in which all that was wrong with the prosecution was the identity of the defendant. The Purvi Patel case, however, is an equally invidious type of “wrongful conviction” in which most likely there should have been no prosecution at all.

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