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In The Research Corner, Professor Marvin Zalman presents summaries of current academic research on wrongful conviction in a succinct and readable format. We hope that the summaries will provide you with a more sophisticated understanding of innocence issues and stimulate further interest.
- Written by Bill Branham
"Unspeakable injustice" is how Michelle Jacobs of Proving Innocence described in her tweet the decision of the new prosecutor, David Gilbert, to appeal the judge's decision to give Lorinda Swain a new trial. Past county prosecutor, Susan K. Mladenoff, was often criticized for her relentless pursuit to maintain Lorinda Swain's conviction as a total misuse of public funds, a lack of any ability to ever admit the office had made a mistake, and a complete denial of common sense and justice. For a more complete background on the case, click here.
Based on the testimony of Book, Lorinda's live-in-boyfriend at the time of the alledged crime, Judge Sindt ruled that the prosecution failed to pass on to the defense knowledge that Detective Pickett phoned Book and ended the phone call when Book stated he saw no evidence of any criminal behavior by Lorinda. The prosecution is appealing that decision, claiming there is no evidence (despite Book's testimony) that Pickett ever contacted Book and also claiming the defense could have called Book to testify at the time and did not, so Book's testimony is not "new evidence". As usual, the prosecution also stated that the original jury was in the best position to consider the evidence. It is interesting that so much emphasis is given to the original jury's decision, yet little is said about the fact that the original trial judge, Conrad Sindt, believes she deserves a new trial.
There are many problems with this case, but one facet stands out as typical of wrongful convictions and another facet stands out that is a common excuse for prosecutions' failure to acknowledge that a mistake was made. Part of the original prosecution's case was the testimony of a "jail house snitch". It is utterly astounding that prosecutors and courts still give any credence to convicted felons who have everything to gain by testifying on behalf of the prosecution, and even much to lose if they do not cooperate. It is a known fact that some prisoners research cases in order to be able to falsely claim in detail another prisoner's "confession" to them while they shared a cell. The Justice Project published in 2007 Jailhouse Snitch Testimony: A Policy Review, made possible by The Pew Charitable Trust. It documented that of the known wrongful convictions in capital cases between 1973 and 2004, 46% included perjured testimony of jailhouse snitches. The report gives examples where jailhouse snitches were the deciding factor in wrongful convictions, and gave an overview of policy reforms, mainly having to do with informing the jury of the unreliability of such witnesses and if promises were made to the informants in exchange for their testimony. Some believe jailhouse snitches are so intrinsically unreliable that they should be banned all together.
Progress in the area of wrongful convictions is slow, but 2012 was a good year. We don't think we could do much better than to point you to Nancy Petro's blog, 2012: A Banner Year for the Cause of Reducing Wrongful Conviction on The Wrongful Convictions Blog. It is an excellent review of the advances made this year. Among her points were: The establishment of an inquiry whether a prosecutor will face criminal charges for his role in convicting an innocent man, the expansion of innocence projects to other countries, the New Jersey Supreme Court issuing new guidelines regarding eye witness identification, prosecutors beginning to lose reelections because of their handling of wrongful conviction cases, and other insights.
There is no question that the pendulum is beginning to swing back . . . not with great speed . . . but it is beginning to change direction. The advent of DNA exonerations historically is without precedence as a way of testing the veracity of past convictions. Now, every week we hear of a new DNA or non-DNA exoneration. Prisoners who have been incarcerated for decades have been proven innocent. It is worth pointing out that rarely do we hear that it was a matter of the jury just getting it wrong. This is most always some form of prosecutorial misconduct, forced false confessions, intentional misreporting or incompetent forensics, or tunnel vision on the part of prosecutors so that the jury never gets the straight scoop. No one thought our system was perfect, but few thought it was capable of so many wrongful convictions.
However, 2012 has not diminished our system's capacity to wrongfully convict. The general population reads about exonerations, the righting of a wrong. What they do not read about is the unfathomable resistance that still pervades our criminal justice system, holding it back from a true, heart-felt self-examination. Consider these few areas of which there are many more:
- DNA testing. Why, after all we have been through, do wrongfully convicted people still have to wait 5, 10, 15 years just for the right to have their DNA tested with prosecutors fighting them at every turn????? New York Times article Kirstin Blaise Lobato
- Ridiculous explanations for keeping wrongfully convicted persons in jail.
Kirstin Blaise Lobato is an innocent 29 year old woman who was wrongfully convicted of murder in Las Vegas, Nevada in 2002. Despite the fact that no DNA evidence found at the scene tied her to the crime and multiple alibi witnesses were available to testify that she was 170 miles away the day the murder occured in Las Vegas, she has spent the last ten years of her life in prison.
In April of this year, Proving Innocence joined in an amicus curiae for Kirstin. The Nevada Supreme Court has now denied the amicus curiae motion.
In unfortunately typical behavior in wrongful conviction cases like this, Clark County District Attorney Steven Wolfson refuses to allow The Innocence Project to pay for DNA testing of the evidence.
We encourage you to go to Justice 4 Kirsten and read how you can make your voice heard. Over 136,000 signatures have been collected on a petition to ask the DA to allow the testing. There is also a great summary of Kirstin's case put together by Hans Sherrer of Justice Denied. Go to http://justicedenied.org/lobato/lobato.htm
In June of 2008, the National Legal Aid & Defender Association (NLADA) issued a report analyzing Michigan's indigent defense system, A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional Crisis. (Download below, including Summary and Fact Sheet.) The report was a bombshell. Michigan's system does not achieve any of the American Bar Associations Ten Principles of a Public Defense Delivery System. (Michigan added it's own 11th Principle, available for download below.) The Michigan Public Defense Report Card is an excellent visual overview of the principles and our grade on each.
The Michigan Campaign for Justice is to be commended for their encouragement of the process that led to Governor Rick Snyder appointing the Michigan Advisory Commission on Indigent Defense. The Commission was ordered to "analyze existing data that is needed to assist policymakers in making decisions on the appropriate funding and staffing levels to ensure effective public criminal defense services." In other words, this is the beginning of a complete overhaul of Michigan's indigent defense system.
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