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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Illinois embraces eyewitness expert testimony


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)


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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