Landmark Decision Mandating Major Changes in the Way Courts Handle Identification Procedures was issued today by the New Jersey Supreme Court

August 24th, 2011

Relying on Scientific Research on Memory and Identification, Court Says
Standard Set by U.S. Supreme Court 30 Years Ago Must Be Revised

(Trenton, NJ – August 24, 2011) — Today the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries. The new changes, designed to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory, require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.

To provide courts with these more enhanced jury instructions, the court gave the Criminal Practice Committee and the Committee on Model Criminal Jury Charges 90 days to submit proposed revisions to the current jury instructions on eyewitness identification, specifically directing them to consider the model jury instructions submitted by the Innocence Project.

The court’s decision stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson. Before that could occur, the state appealed, and the New Jersey Supreme Court decided that an extensive inquiry into witness identification procedures currently used by law enforcement was necessary.

The New Jersey Supreme Court appointed a Special Master to review the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison. In addition to the parties to the litigation, the court invited the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to participate in an inquiry by the Special Master who considered over 200 scientific studies and heard from some of the nation’s most respected experts on eyewitness identification before issuing findings to the court in June 2010.

The court remanded the Henderson case back to the trial court for further review in accordance with the decision. The decision will apply to all future cases, but will not be applied retroactively with the exception of the companion case, State v. Chen, in which the court held that suggestive identification procedures that resulted from private actors would also be subject to court scrutiny to ensure the reliability of the identification.

Read the NYT article about the decision here.

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. Additional information about eyewitness misidentification is available here.

Supreme Court to Re-visit the Role of Eyewitness Identification

August 24th, 2011

For the first time since 1977, the Supreme Court will re-visit the issue of eyewitness identification this November in the case of Perry v. New Hampshire. Barion Perry was convicted of theft and while two eyewitnesses placed him in the parking lot where the theft occurred, neither saw him actually commit the act. He admits to being at the scene and holding the stolen property, but claims he found it on the ground. Commentators suspect that the judges will issue a ruling “about which kinds of eyewitness identifications warrant a closer look from judges — just those made after the police used improperly suggestive procedures or all problematic ones?” This ruling will not address the broader conflict between the due process clause of the Constitution, which requires unreliable eyewitness identification evidence to be excluded, and the current instructions given to judges to use a two-step analysis, which allows them to look at other issues and almost always results in the eyewitness evidence being shown to the jury.

There has been extensive research since 1977 about eyewitness identification and the fallibility of human memory. Over 2,000 studies published in professional journals in that time show that memory does not function as a videotape and is fragile and subject to contamination. Furthermore, eyewitness testimony is very powerful in convincing a jury of a suspect’s guilt. Eyewitness identification has played a role in 75% of wrongful conviction cases according to Brandon Garrett who researched the first 250 DNA exonerations in his new book, “Convicting the Innocent.” These studies show that the time is ripe to re-assess the role of eyewitness identification in the courtroom.

Read a NYT article about the issue here.

Read more about eyewitness misidentification and watch a video of double-blind administration of line-ups here.

West Memphis Three Released Last Friday

August 22nd, 2011

The high profile case of the West Memphis Three took a surprising turn last week when Damien Echols, Jason Baldwin and Jessie Misskelley Jr., who were convicted of the murders of three boys in 1993, entered Alford guilty pleas which allowed them to maintain their innocence while conceding that the state had enough evidence to convict them. In a horrific crime, three 8-year-old boys from West Memphis, Arkansas were found dead with their hands bound behind their backs to their feet. The gruesome nature of the crime made police suspect that the murders were part of a satanic ritual. Suspicion soon turned to local teenager Damien Echols, who was a gifted yet troubled 18-year-old at the time.

Echols, Baldwin and Misskelley were convicted in 1994 based on Misskelley’s coerced confession after a 12-hour police interview, during which he implicated Baldwin, Echols and himself. Misskelley, who has an IQ of 72 and is considered borderline retarded, later recanted his statement which contradicted facts police knew to be true, such as the time of the murder. Police determined that Echols was the ringleader, and he was sentenced to death. Baldwin and Misskelley were sentenced to life in prison. After recent DNA testing failed to tie any of the three men to the crime scene, and with the possibility of a new trial on the horizon, defense attorneys and prosecutors worked out the Alford plea deal last week. All three proclaimed their innocence but pled guilty to first- and second-degree murder. The three men then walked free for the first time in 18 years and were greeted by their supporters, including such high profile names as singer Eddie Vedder and members of the Dixie Chicks. While they have no immediate plans, defense attorneys say that all three will continue to try to clear their names once and for all.

Read the NYT article here.

Nine Years After Exoneration, Antoine Day Receives Certificate of Innocence

August 10th, 2011

After spending 10 years in prison for a murder that he did not commit, then waiting 9 more after his exoneration, Life After Innocence exoneree Antoine Day was granted a Certificate of Innocence this week from Judge Paul Biebel. The certificate will help Antoine receive funds to compensate him for the time he spent behind bars for another’s crime and will also help to officially expunge his record. Day was exonerated on appeal after retiring real estate attorney Howard Joseph took his case.

A musician before his arrest, Day continues to play music and served as the drummer in an exoneree band that performed at the annual Innocence Network Conference last April in Cincinnati, Ohio. Currently, Day is the Outreach Coordinator of Prison Reentry at the Howard Area Community Center Employment Resource Center, implementing programs to help the community.After spending 10 years in prison for a murder that he did not commit, then waiting 9 more after his exoneration, Life After Innocence exoneree Antoine Day was granted a Certificate of Innocence this week from Judge Paul Biebel. The certificate will help Antoine receive funds to compensate him for the time he spent behind bars for another’s crime and will also help to officially expunge his record. Day was exonerated on appeal after retiring real estate attorney Howard Joseph took his case.

A musician before his arrest, Day continues to play music and served as the drummer in an exoneree band that performed at the annual Innocence Network Conference last April in Cincinnati, Ohio. Currently, Day is the Outreach Coordinator of Prison Reentry at the Howard Area Community Center Employment Resource Center, implementing programs to help the community.

Justice for Anthony Powell

July 29th, 2011

Yesterday afternoon Jerry Dixon pled guilty to three rapes, including a brutal Roxbury rape for which Anthony Powell was wrongly convicted. Powell was 12 years into his 20-year sentence when he was exonerated with help from the New England Innocence Project. Powell was present during yesterday’s plea hearing at Suffolk Superior Court but declined to talk to reporters. In an earlier statement given to the Boston Globe on July 20, Powell explained, “If you think that an innocent person cannot be convicted of a crime in Massachusetts, you are fooling yourself. It happened to me. There are innocent people in prison in Massachusetts right now.” Dixon was sentenced to10 years and one day for each of the three rape counts, totaling 30 years in prison.

Read the Boston Globe article here.

Massachusetts Senate to Debate DNA Access Bill

July 28th, 2011

This afternoon the Massachusetts State Senate will consider Senate Bill 1987 allowing inmates access to DNA testing. The formal session starts at 1pm. Betty Anne Waters and NEIP Executive Director Gretchen Bennett will be recognized by Senator Cynthia Stone Creem from the floor of the senate for their work in support of DNA testing that could prove innocence. If the bill receives a favorable vote in the Senate, it will then be discussed in the House of Representatives at a later date.

Justice After 20 Years

July 14th, 2011

In 1992, a teenage girl was kidnapped at knifepoint as she waited for a bus. The assailant raped her and then demanded that she come to a nearby skating rink the following night with $100. The next night, a suspect was picked up from the skating rink, positively identified by the young woman, and charged with the crime.

That suspect was Anthony Powell, who was at the wrong place at the wrong time. Mr. Powell was convicted of the rape and kidnapping and spent 12 years in prison. In 2004 DNA testing exonerated Mr. Powell. The DNA was run through a national database and correctly identified the actual assailant, Jerry Dixon. Mr. Dixon will plead guilty to the crime, along with two other rapes, on July 20, 2011.

Currently, Massachusetts is one of only two states that does not have a law mandating postconviction access to DNA testing. A public hearing was held on June 8th at the Massachusetts State House regarding the Postconviction DNA Access Bill, which is currently headed to the Massachusetts House and Senate for debate. Cases like Mr. Powell’s show why such a law is imperative–not only to free the innocent, but to find the guilty.

Powell really puts it in perspective: “If you think that an innocent person cannot be convicted of a crime in Massachusetts, you are fooling yourself. It happened to me. There are innocent people in prison in Massachusetts right now.”

Read the Boston Globe article about Powell’s story.

FRONTLINE Investigates How Emerging Science Threatens the Validity of Convictions Based on Shaken Baby Syndrome

July 6th, 2011

FRONTLINE, ProPublica and NPR recently teamed up to examine cases of child deaths ruled to be murders. In the half hour segment that aired on FRONTLINE, investigators looked into more than two dozen cases where caregivers were initially suspected of murder, only to later have their convictions overturned. One of the main causes leading to these wrongful convictions in suspected child abuse cases is the science behind the conviction. Particularly in cases involving Shaken Baby Syndrome (SBS), emerging science presents alternative explanations for some of the classic symptoms associated with SBS and other forms of abuse. For example, certain blood disorders can lead to the type of bruising that is often considered a result of child abuse. Additionally, in cases involving children, emotions can run very high and there is often a rush to find those responsible, leading to misplaced blame. The episode interviews Ernie Lopez, a Texas man sentenced to 60 years in prison for shaking his neighbor’s daughter to death, but who has always maintained his innocence.

Watch the clip here.

NEIP Hosts Innocence Litigation Training

June 24th, 2011

Last Friday the New England Innocence Project held a successful Innocence Litigation Training at the Goodwin Procter Conference Center. This event was attended by over 130 attorneys as well as law enforcement and crime lab personnel from across New England. Panelists covered the NAS Report, advances in DNA testing, fact and fiction in arson science, eyewitness misidentification and practical steps for post-conviction litigation. NEIP has received an overwhelming amount of positive feedback regarding the training.

NEIP would like to extend its thanks to Massachusetts Association of Criminal Defense Lawyers (MACDL) who co-sponsored the event and generously provided lunch.

Please e-mail intake@newenglandinnocence.org if you were unable to attend and would like a video copy of the training.

NEIP Exoneree James Hebshie Cleared on all Charges

June 24th, 2011

After spending more than three years in federal prison in connection with a 2001 Taunton fire, NEIP exoneree James Hebshie was officially cleared of all charges on Monday. Hebshie was convicted of intentionally starting a fire that destroyed the building where his news store was located. The prosecution alleged that he had set the fire to collect insurance money on the building. Since his release in November of 2010, Hebshie has been awaiting the government’s decision as to whether they would appeal or re-try the case. On Monday the U.S. Attorney General’s office in Boston filed a motion to dismiss the indictment against Hebshie effectively ending the legal case against him.

Read the story of NEIP exoneree Jimmy Hebshie wrongfully convicted of arson based on police use of a sniffer dog.

Public Hearing Held Today on Postconviction DNA Access Bill

June 8th, 2011

A public hearing was held today at the Massachusetts State House regarding the Postconviction DNA Access Bill pending before the Joint Committee on the Judiciary. NEIP Executive Director Gretchen Bennett testified with Betty Anne Waters and NEIP exoneree Dennis Maher. Betty Anne Waters worked for 18 years to exonerate her brother Kenny. Much of her struggle was locating the evidence in Kenny’s case. Once she located the evidence it took her an additional year to obtain DNA testing. This testing lead to Kenny’s exoneration in 2001.

The committee was noticeably moved after NEIP’s testimony regarding the bill. Senator Cynthia Stone Creem commended Ms. Waters and Mr. Maher for their courage and perseverance.

This morning an op-ed by Dennis Maher was printed in the Boston Herald regarding the bill. In March 1984, Mr. Maher was found guilty of the rape and assault of two women in Lowell on consecutive evenings in November 1983. In April 1984, he was convicted of the August 1983 rape of another woman in Ayer. After the second trial, Maher was sentenced to life in prison. Additionally, he spent six years in prison trying to gain access to the evidence that ended up clearing his name.

Boston Bar Association Advocates for Mass. DNA Access Bill

June 3rd, 2011

Kathleen Joyce, the Government Relations Director for the Boston Bar Association (BBA), recently published an op ed calling for Massachusetts to pass a DNA access law. The bills are being sponsored by Senator Cynthia Creem and Representative John Fernandes. A public hearing for the bills is scheduled for June 8th in the Gardner Auditorium.

While Massachusetts is generally at the forefront of reform, it is one of only two states lacking a DNA access law. The other state is Oklahoma. Ms. Joyce writes, “An access to DNA statute is important because it is not uncommon for a person to exhaust all possible appeals without being allowed access to DNA evidence from the case. Sometimes the DNA evidence that was available at the time of the defendant’s trial was never tested or the methods of DNA testing used at the time of the trial were inexact, yielding unreliable results.” She also points out that while innocenct people remain in prison, the guilty go free. If passed, the DNA access law would be a useful tool for law enforcement to solve cold cases.

Ms. Joyce ends the piece with a call to action: “Massachusetts could end up being the only state in the country without post-conviction access to DNA. Wouldn’t that be embarrassing?”

To read the op ed in its entirety, click here.

Mother’s Day Exoneration

May 12th, 2011

A Utah woman was released earlier this week after spending 17 years in prison for a murder she did not commit. Debra Brown left the Utah State Prison in the pouring rain on Monday, May 9, 2011, the day after Mother’s Day. Brown was the first person to be exonerated under a 2008 Utah law allowing judges to consider factual innocence in addition to scientific testing when deciding wrongful conviction cases. Brown was accused of murdering her boss in 1993, but in light of factual innocence demonstrating that she had a strong alibi during the time the crime was committed, her conviction was overturned. Her children were waiting to greet her when she was released from prison and in addition to spending time with them, she intends to go fishing and get baptized in the coming days. The state will pay her $570,000 as restitution for her wrongful conviction.

NEIP Executive Director Speaks About Wrongful Convictions

May 2nd, 2011

NEIP Executive Director Gretchen Bennett was featured on the April 11th segment of the Callie Crossley Show. Gretchen was joined by Betty Anne Waters, who became a lawyer after her brother was wrongly convicted and ultimately secured his exoneration after 18 years in prison, and Brandon Garrett, a law professor at the University of Virginia who specializes in DNA exonerations. The trio spoke about the problem of wrongful convictions and the need for reform. In particular, they discussed the role DNA has played in hundreds of exonerations and Massachusetts’ status as one of only two states without a law granting inmates access to DNA testing that could prove their innocence. Of the New England states, only Massachusetts does not have a DNA Access Law, and all but Massachusetts and Vermont also have laws requiring preservation of DNA evidence.

Listen to the interview here.

Read State DNA Access and Preservation Laws here.

Recent Studies Show the Shortcomings of Police Dogs

April 27th, 2011

Radley Balko’s February 2011 article highlighting studies at the University of California-Davis and University of North Carolina details how misconceptions about dog behavior may lead to false positives in criminal cases. Balko argues that while dogs’ sense of smell remains very powerful, over the course of domestication they have developed other powerful traits, namely the desire to please their owners. For example, if a dog handler has a suspicion that a suitcase contains drugs, the dog may be able to pick up on that bias and signal a false positive in order to please its owner. Balko cites University of North Carolina law professor Richard Meyers’ 2006 statistical analysis that demonstrated that police dogs “were not reliable enough to produce probable cause for a search, let alone serve as the cornerstone of a conviction.” Balko acknowledges the potential for dogs to play a key role in bomb sniffing and survivor detection but cautions against ignoring the dogs’ bias towards pleasing their owners.

Read the story of NEIP exoneree Jimmy Hebshie wrongfully convicted of arson based on police use of a sniffer dog.

Update in Jeffrey MacDonald Case

April 21st, 2011

A federal appeals court ruled yesterday that a lower court was too restrictive in refusing to consider new DNA evidence and witness statements in the case of Jeffrey MacDonald. MacDonald was charged in 1979 with the murders of his pregnant wife and two young daughters but has always maintained his innocence. In trying to prove his innocence, MacDonald has urged the court to consider both DNA evidence and witness statements. The DNA evidence shows that a hair found under one of his daughter’s fingernails does not match him or anyone else in the family. Furthermore, under yesterday’s ruling, statements made by a retired deputy U.S. marshal, who claims he overheard the lead prosecutor threatening a witness, causing her to change her story, will also be admissible.

Read the article here.

Debra Cassens Weiss, “4th Circuit Tells Lower Court to Consider DNA in Appeal of “Fatal Vision” Doc. April 20, 2011. ABA Journal.

NEIP Team Attends Annual Innocence Network Conference

April 20th, 2011

Three NEIP team members and NEIP’s Executive Director recently returned from the 2011 Innocence Network Conference in Cincinnati, Ohio. Also in attendance were two New England exonerees, Lawyer Johnson and Dennis Maher. The conference was hosted by the Ohio Innocence Project. This year’s conference covered a variety of post-conviction topics and examined wrongful convictions on an international scale. The annual conference is a great resource for both Innocence Projects and exonerees. Some of the topics at this year’s conference included judicial perspectives on DNA testing requests and actual innocence claims, false confessions, post-conviction DNA testing, recantation evidence, the Freedom of Information Act, and federal habeas corpus. International exonerees from England, Japan, Canada, Mexico, and Nicaragua spoke about their cases and each shared his exoneration experience in the country where he was wrongfully convicted. The conference concluded with a moving concert performed by the exonerees.

To learn more about past Innocence Network Conferences, click here.

Reforming Forensic Science

April 13th, 2011

In the past few years national attention has increasingly focused on the fallibility of forensic science. Forensic disciplines once touted as scientifically accurate such as bite mark analysis have not been subject to peer review or scientific testing. In addition, bias among law enforcement and crime labs in favor of convictions too often leads to misuse of forensics.

Bias can be caused by medical examiners or crime labs reporting directly to the attorney general or other state law enforcement official and influences the entire process of collecting and analyzing scientific evidence. A 2002 study by Michael Risinger, a law professor at Seton Hall, identified five different parts of scientific analysis susceptible to influence by unintentional bias. They are: how the analyst observes the initial data, how he records the data, how he makes calculations, and how he remembers and reinterprets his notes when preparing for trial. For example, researchers at the University of Southampton in the UK published a study in 2006 that found “the error rate of fingerprint analysts doubled when they were told the details of the case they were analyzing”. Balko makes recommendations for how to improve the system by creating different incentives, namely rewarding analysts for doing accurate work and penalizing them for errors.

Read more here
Balko, Radley. “Getting Forensics Right”. March 14, 2011

Judge Nancy Gertner’s Call to Action for Criminal Defense Attorneys

April 13th, 2011

In a UCLA Law Review article titled “Commentary on the Need for a Research Culture in the Forensic Sciences ” (58 UCLA L. Rev. 789 (2011)), Judge Nancy Gertner discusses the need for attorneys to familiarize themselves with the forensic sciences. In the wake of the National Academy of Sciences Report, which calls for drastic changes in the scientific community regarding forensic science standards, Judge Gertner advocates for change within the legal community as well. She believes that defense counsel’s lack of forensic knowledge could be grounds for a successful ineffective assistance of counsel claim. Judge Gertner cites US v. Pena (586 F.3d 105 (2008)) to illustrate a defense attorney’s failure to follow through with a Daubert hearing after it had been granted by the court. Defense counsel should know how the science works so they can actively challenge it at trial.

She writes, “Counsel have to learn that advocacy in cases involving forensic evidence requires familiarity with the kind of issues the NAS Report raised. And further, courts need to make it clear that such familiarity may be one of the benchmarks in evaluating when assistance of counsel is constitutionally ineffective.”

Although not mentioned in the article, this issue arose last year in Judge Gertner’s own courtroom in the case of James Hebshie. Hebshie was convicted of arson based largely on unvalidated forensic science. His attorneys failed to request a Daubert hearing regarding any of the arson testimony, despite the fact that Judge Gertner repeatedly asked them if they would like to do so. Judge Gertner granted Hebshie a new trial, citing his counsel as being constitutionally deficient for failing to challenge the arson science.

Boston Globe Focuses on Wrongful Convictions and Post Conviction DNA Access in Massachusetts

April 13th, 2011

This week, two Boston Globe articles have shed light on wrongful convictions in Massachusetts, and what can be done to remedy them. In an op-ed, Brandon Garrett, a law professor at the University of Virginia, writes about Massachusetts exoneree Neil Miller. Miller was convicted of rape, largely based on mistaken eyewitness testimony. Garrett points out the problems in the system that cause wrongful convictions time and time again. He recommends that all states adopt DNA preservation and access laws, and advocates for requiring that all police interrogations be videotaped.

Another Globe article this week focused on Massachusetts’ lack of a DNA access or DNA evidence preservation law. A DNA access law would mandate access to post-conviction DNA testing for inmates, with certain restrictions. A DNA preservation law would require that DNA evidence in a case be preserved for a certain amount of time. The article points out that Massachusetts is one of only two states nationwide that does not have a DNA access law (the other is Oklahoma). However, the article incorrectly states that inmates still have access to testing. Unfortunately, this is not the case. An inmate can request testing, but there is no guarantee at this time that his or her request will be granted by the court. Additionally, because Massachusetts has not enacted a DNA evidence preservation law, officials are currently free to destroy DNA evidence related to a defendant’s case, so there may be no evidence left to test. While some inmates ultimately receive testing, others do not. The New England Innocence Project, in conjunction with other Massachusetts organizations, is in the process of trying to get a bill passed that would allow all inmates access to DNA testing and would require that all DNA evidence related to a defendant’s case be preserved.

For Garrett’s op-ed, click here.
To read the complete Globe article about DNA testing, click here.