An examination of the causes of wrongful convictions

Interesting examination of the causes of wrongful convictions here. H/T Don Rehkopf.

Many innocent defendants plead guilty in part due to fear of what they call 'the trial penalty' -- that the punishment will be greater after trial.

A new article here from Above the Law on how the trial penalty coerces guilty pleas from the innocent.

Prosecutorial misconduct in death penalty cases exposed by one of their own

Here is a new, remarkable article in The Intercept on capital prosecutors behaving badly, including hiding or destroying evidence in capital cases, then lying about it in death penalty cases, as revealed by a former capital prosecutor who claims to have first hand knowledge of this misconduct.

The Exoneration of Persons Convicted of Misdemeanors That Were Never Committed

There are a number of ways a person convicted of a crime can be exonerated. It can be proved that the person was not the perpetrator, for example by DNA testing of biological evidence left by the perpetrator of the crime excluding the defendant. There can be proof of an iron clad alibi – such as proof that the defendant was incarcerated or in another country when the crime was committed. It can be be proved that someone else committed the crime, for example by video evidence of the commission of the crime.

One way a person can be exonerated is by proof that the crime was never committed. For example, persons have been convicted of murder only for the supposed decedent to subsequently be proved to still be alive. And, unless one believes in witchcraft, one can safely assume that the 20 persons executed for witchcraft in Salem were convicted and killed by the state for crimes that were never committed.

Most attention to exonerations in the current innocent movement has been focused on persons proved innocent of serious felonies  -- homicides, sex crimes, and assaults – by DNA evidence. But, as described in an important and provocative law review article, THE INNOCENCE MOVEMENT AND MISDEMEANORS, 98 B.U. L. Rev. 779 (June 2018) by Jenny Roberts , the Co-Director of the Criminal Justice Clinic and Associate Dean for Scholarship, American University Washington College of Law, lab tests and video evidence have demonstrated that large numbers of persons have been convicted of misdemeanors, such as drug possession, often by guilty plea, for crimes which were never committed.

For example, lab tests have demonstrated that there were no illicit drugs. Videos have established that the charged crimes were not committed (such as by showing police planting evidence). As the article discusses, given the huge number of person who are arrested and convicted of misdemeanors, and the impact of such convictions, it might be helpful to direct far more resources to both identifying  such cases and dealing with the the police and prosecutorial practices which have enabled them.

I taught a wrongful conviction cause for a decade and, apart from a discussion of the Ramparts scandal at Los Angeles Police Department , did not even discuss the issue of exoneration of people convicted of misdemeanors. I strongly believe that this is article is worth reading as it raises numerous important questions regarding the meaning and significance of such exonerations and how we should respond to them to prevent future convictions of innocent persons.

Pro se litigant obtains a reversal on appeal

In the "even a blind squirrel finds a nut" category, in the July 6th packet of Appellate Division, Fourth Department decisions, perennial litigant and pretty good jailhouse lawyer Isiah Williams won a reversal of his conviction, pro se.  Mr. Williams was previously acquitted of the possession of two forged checks and convicted of possession of another. After the Fourth Department reversed that conviction, at the retrial the Ontario County Court allowed the prosecutor to introduce evidence of defendant's possession of the checks he had been acquitted of possessing. Unsurprisingly, the Fourth Department found that this was wrong, and reversed defendant's conviction. Good lawyerin' Mr. Williams. Read the decision here.

Monroe County Public Defender's Office 50 year anniversary celebration

Greetings to all alumni/dinosaurs of the Monroe County Public Defender's Office. On September 14, 2018 from 5:30 p.m. - ??? there will be a celebration of 50 years of service for the Monroe County Public Defender's Office at Tournedos at the Inn on Broadway 26 Broadway, Rochester, NY 14607. There will be a cash bar, grazing tables, music, "Get out of Jail" t-shirts and stuff, and lots of present and past PDs. As we firm things up we will pass along more information here as it becomes available; be sure to check back. Please help us reach out to out-of-towners. Don't assume we have reached everyone locally or otherwise. Finally, we will likely ask for deposits as soon as we have a price point to help with expenses (again check back for info on how much and whom). This should be a terrific celebration of you, the office, the mission of the office, its future and the present staff. Please come help us celebrate, have fun, tell war stories and share a few.

In a recent DWI prosecution, ETKS associate Paul Meabon moved to preclude the introduction of the results of a sample taken by a registered nurse at the direction of a Rochester Police officer pursuant to Vehicle and Traffic Law § 1194(4)(a)(1)(I), which provides, in relevant part that “[a]t a police officer’s request … a physician, a registered professional nurse, a registered physician assistant, a certified nurse practitioner, or an advanced emergency medical technician as certified by the department of health” may withdraw blood to determine the blood’s alcoholic or drug content.

Mr. Meabon argued that because the discovery provided revealed that the sample had not been properly collected or stored, any test results relating to that sample would unreliable and therefore irrelevant.

In New York, a blood draw must be “safe, reliable” and “impose no more physical discomfort than is reasonably necessary” (Matter of Abe A., 56 NY2d 288, 297-98 [1982]). Reliable methods fall within “accepted medical standards” including, for example, the application of an “aqueous solution of a nonvolatile antiseptic” on the area of skin where blood is drawn (see id., referencing Schmerber v California, 384 US 757, 771-772 [1966]; 10 NYCRR 59.2[d]). A blood sample collected outside statutory guidelines must be suppressed (see People v Olmstead, 233 AD2d 837 [4th Dept 1996]; People v Ebner, 195 AD2d 1006, 1007 [4th Dept 1993]).

Along with the method of its collection, a blood sample’s reliability depends on the sample’s storage. In Mr. Meabon’s case, the nurse stored each blood sample in a NIK Public Safety, Inc. vacutainer tube containing chemicals to safeguard the sample’s integrity.

One chemical contained in the tube, 20 milligrams of potassium oxalate, is a powdered anticoagulant that hinders blood’s production of thrombin, an enzyme that stimulates clotting (Peter Gerstenzang & Eric H. Sills, Handling the DWI Case in New York § 38:10 [2015-2016 ed.]; see 10 NYCRR § 59.2[c][4][ii] [“blood shall be deposited in a clean container containing a solid anticoagulant”]). Clotting in a blood sample concentrates alcohol in the sample’s liquid, the portion tested to determine blood alcohol content, causing an erroneously high result (see People v Boyst, 177 AD2d 962 [4th Dept 1991] [blood sample without anticoagulant admissible given laboratory’s use of clotting conversion factor]).

A second chemical, sodium fluoride, is a preservative staving off fermentation as a sample decays (Handling the DWI Case in New York, supra at § 38.11). A blood sample without a preservative ferments during storage (even while refrigerated) and, in some cases, raises a sample’s alcohol content 0.25% or higher (id.).

Some careful attention to a critical variance between the instructions for the blood draw kit and the procedures followed presented an issue.

Because clotting and fermentation undermine a blood sample’s test results, the blood draw kit used instructs the nurse to “slowly invert the tubes at least five times immediately after blood collection” (see id. at § 38:8). Likewise, the kit instructs the officer supervising the blood draw, to “INVERT [the tube] slowly and completely at least 20 times” to “ensure proper mixing with the anticoagulant powder” (see id.)

In Mr. Meabon’s case, however, neither the nurse nor officer inverted the tubes as directed before sealing the tubes in the kit’s mailer box. As a consequence, the anticoagulant and blood were not properly mixed and the blood could have clotted before testing. From the test results provided, it was unclear whether the testing laboratory factored clotting into the test results (see Boyst, supra). Furthermore, the test results provided failed to indicate how the laboratory stored the tubes, whether the tubes contained sodium fluoride, or whether any preservative worked to stave off fermentation during the blood sample’s pre-testing decay.

Some issues to consider in your next blood draw DWI case.