My last-minute criminal justice gift list

The best way to get what you want is to ask for it. Here is my short criminal justice wish list (I don’t want to be greedy), just in time for the December holidays but also valid through 2017:

Exoneree compensation: This is addressed to Illinois Governor Bruce Rauner, House Speaker Michael Madigan, and Senate President John Cullerton. We have a compensation law in Illinois, but for the last year and a half, you all have been unable to agree on a budget—meaning wrongful incarceration awards have not been paid. Stop your bickering long enough to compensate the wrongly convicted! (For more on the human costs, see this Chicago Tribune article.)

Conviction Integrity Unit: This one is for newly elected Cook County State’s Attorney Kim Foxx. You have pledged to upgrade your office’s conviction integrity unit. I believe you; I think this wish will be granted. To make your job easier, here is the Quattrone Center’s paper on best practices for conviction review units. The essential recommendations are at the very beginning. Use it is a blueprint.

Jury instruction on eyewitness testimony: Illinois Pattern Jury Instruction (Criminal) 3.15, which outlines how jurors should consider identification testimony, is badly outdated. For heaven’s sake, it is based on a 40-year-old opinion predating our current understanding of factors affecting eyewitness reliability. The Committee on Jury Instructions in Criminal Cases should take a lesson from New Jersey or another enlightened state and give jurors better tools to evaluate eyewitness testimony.

Open file discovery: Individual State’s Attorneys, you can adopt this as your office’s policy. Illinois Supreme Court Rules Committee, you should incorporate this into the discovery rules. What exactly does open file discovery mean? Only that prosecutors turn over their entire investigative file to the defense, except sensitive information withheld with court approval. Better prepared defense attorneys mean fewer wrongful convictions. If Texas can adopt open file discovery, so can everyone else.

Address racial bias: This last one is for everyone, including me. Conscious, implicit, systemic . . . however we categorize it, racial bias is the most pressing challenge facing our criminal justice system. There is no easy fix, but we cannot begin to solve the problem unless we are willing to name it and admit it exists—and too many actors in the system still refuse to concede the role racism plays in determining who is prosecuted, convicted, and over-sentenced. To put it another way, in the immortal words of SNL’s Kenan Thompson: “Take it one step at a time. Identify the problem. FIX IT!”

Let’s meet up again, same time, next year, and see how much of my wish list was fulfilled. Happy holidays!

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My Podcast Interviews about Eyewitness Identification Experts and Causes of Wrongful Convictions

I love a good podcast. I started with This American Life and took off from there. Podcasts allow me to multitask in a way television and the internet do not; I can listen hands-free while walking my dog, driving, or cooking dinner. I was thus tickled and honored to be interviewed earlier this year for two wonderful podcast series.

The first was Undisclosed, which began by following Adnan Syed’s case and branched out into other innocence-related topics. Here is my wide-ranging conversation with one of the hosts, Colin Miller, about common causes of wrongful convictions:

The second was, a lively resource created by defense attorney Samuel Partida, Jr. He and I talked about expert testimony on eyewitness identification in light of a recent key Illinois Supreme Court decision:

Criminal Nuggets: Podcast on Eyewitness Identification Litigation

If you listen to the above and are hungry for more, check out these additional podcasts relating to criminal law and wrongful convictions:

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Shame: Illinois Stopgap Budget is Unacceptable to Exonerees

Yet again, Illinois Governor Rauner and lawmakers in Springfield have proven themselves unable to perform the most basic function of running a state: passing a budget. Illinois has not had a real budget for over a year, and with the passage on June 30 of a “stopgap” (read: bare bones) appropriation bill, our elected officials have given themselves permission to continue this train wreck for another six months.

How have exonerees fared during the budget standoff? They have received zilch. Illinois is one of 30 states (plus the federal government and D.C.) with a compensation statute on the books. It is not overly generous – it caps awards at around $200,000 regardless of length of incarceration – but exonerees who are declared innocent rightfully anticipate and depend upon these funds. Functionally, however, Illinois currently has NO compensation law, because for over a year, the “stopgap” appropriation bills have not included funds for exonerees who have already been certified innocent and have received monetary awards from the Illinois Court of Claims.

Who are these people? They include my client Christopher Coleman, who spent 19 years in prison for a home invasion he did not commit. They include Daniel Andersen, who served more than 27 years in prison and then had to register as a sex offender before his exoneration of a murder he did not commit. Coleman and other exonerees are profiled in this Chicago Tribune article from last fall, describing the harm exonerees were suffering due to the budget impasse. Amazingly, nothing has changed since then other than that the list is longer and they are another year in debt.

Regardless of whether their wrongful convictions resulted from malice or negligence, these individuals were gravely harmed by the government and deserve redress. Had they been lottery winners, they would have received their winnings by now, as lottery payoffs have been funded even during the budget crisis. It is simply unacceptable that Illinois is still refusing to honor its obligations to persons who spent decades in prison for crimes they did not commit.

Governor Rauner, Illinois legislators – where is your conscience?

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Mother’s Day – what do you say?

rose-31411_960_720What do you say on Mother’s Day to a woman whose child has died, either by accident or at the hand of another?

What do you say on Mother’s Day to a woman wrongfully convicted of her own child’s murder?

What do you say on Mother’s Day to a woman behind bars who can’t be with her children?

What do you say on Mother’s Day to a woman incarcerated for years despite her innocence, who can no longer bear children after she is freed?

What do you say on Mother’s Day to a woman whose innocent son or daughter is languishing in prison?

I confess I don’t know what to say. My own life has been incredibly fortunate. Of the many wonderful things I have been lucky enough to experience, being a mother surely tops the list. I simply cannot imagine having that opportunity stolen from me.

All I can think of to say is, “Happy Mother’s Day.” To all the mothers separated from their children for reasons beyond their control, I still say to you, “Happy Mother’s Day.” My heart goes out to you and your children (living, no longer living, or never born), and may you find peace.

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Must a prosecutor disclose new evidence of innocence after conviction? Illinois ethics rules say yes.

I am embarrassed to say that until yesterday, when I read a Chicago Tribune story about a possible wrongful conviction in DeKalb County, I was unaware that the Illinois Rules of Professional Conduct now include the following new special duties of a prosecutor (Rule 3.8):

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further reasonable investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

In effect, the so-called “Brady rule,” requiring prosecutors to disclose exculpatory evidence to the defense before trial, now also applies after conviction under Illinois ethics rules. This is an extremely welcome development for those like myself who practice post-conviction innocence work, and for everyone concerned about criminal justice.

DeKalb County State’s Attorney Richard H. Schmack apparently takes Rule 3.8 very seriously. In an extraordinary 34-page filing in the case of Jack D. McCullough, convicted in 2012 of a 1957 murder of a young girl in Sycamore, Illinois (yes, you read those dates correctly – 55 years after the fact), Schmack describes in painstaking detail his six-month review of the case and the evidence that led him to conclude that McCollough was wrongfully convicted. Schmack points to a highly suggestive photo identification procedure conducted 53 years after the incident and maintains there were false statements in an affidavit for a search and arrest warrant as well as false testimony at McCullough’s trial. Further, and eerily reminiscent of the wrongful conviction of my former client Alan Beaman, Schmack agrees with the FBI’s 1957 conclusion that it was physically impossible for McCullough to have abducted the victim between 6:45 and 7:00 p.m. in Sycamore, based on a phone call McCullough made at 6:57 p.m. the same evening in Rockford, at least 34 miles from the scene.

Schmack states in the preamble to his factual report:

Rules 3.8(g) and 3.8(h) have only been in effect in Illinois for three months, so there is little precedent for a report such as this. The purpose and spirit of these new rules is obvious. They address with clarity the tragedy of wrongful convictions and provide a clear guide for prosecutors in evaluating a claim of actual innocence. I have concluded that a prosecutor is bound to consider personal knowledge and experience in life as well as the discovery in a case. The prosecutor is not a court, and is not bound by any prior determination of fact, if he or she knows that determination to be incorrect, wherever that knowledge originates. In short, the prosecutor can never leave his or her common sense out of the equation. The progress of a case from charging, through pre-trial, trial, appellate and post-judgment phases never lessens a prosecutor’s primary obligation to seek justice, rather than conviction.

Wow.  I couldn’t have said it better myself. Let’s hope that other Illinois prosecutors take note and are equally scrupulous about complying with their duties under Rule 3.8 – and that other states follow Illinois’s lead in imposing a continuing duty on prosecutors to ensure that the wrongfully convicted do not remain behind bars when new evidence of innocence emerges after trial.

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