“If these flaws do not make us conscious that we are sending people off to murder them, shame on us. Shame on us that we don’t want to make our system better,” Graves told The Times, “What are the safeguards that are now being put in place to stop this from happening? We’ve got a justice system going awry. I’m just hoping that he receives a fair trial.”
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Innocent Man on Death Row Wants To Die At Home: http://youtu.be/DfSkw9X0PFo via @YouTube
Max Soffar is innocent, but he’s been on death row for 34 years. Now he’s dying of liver cancer. He should spend his last days with family, not behind bars.
Jed Rakoff writes in the NY Review of Books:
The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.
To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.
The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.
While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.
It was not always so. Until roughly the end of the Civil War, plea bargains were exceedingly rare. A criminal defendant would either go to trial or confess and plead guilty. If the defendant was convicted, the judge would have wide discretion to impose sentence; and that decision, made with little input from the parties, was subject only to the most modest appellate review.
After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials.
The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime.
Thus, plea bargains came to account, in the years immediately following World War II, for the resolution of over 80 percent of all criminal cases. But even then, perhaps, there were enough cases still going to trial, and enough power remaining with defense counsel and with judges, to “keep the system honest.” By this I mean that a genuinely innocent defendant could still choose to go to trial without fearing that she might thereby subject herself to an extremely long prison term effectively dictated by the prosecutor.
All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. While the 1950s were a period of relatively low crime rates in the US, rates began to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drug-related, was occurring at a frequency not seen for many decades. As a result, state and federal legislatures hugely increased the penalties for criminal violations. In New York, for example, the so-called “Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin, cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were frequently made mandatory and, in those thirty-seven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place.
At the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them.
In addition to mandatory minimums, Congress in 1984 introduced—with bipartisan support—a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors.
One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since.
The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.
The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.
Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.
In this typical situation, the prosecutor has all the advantages. . .
As Lord Acton observed, “Power corrupts. Absolutely power corrupts absolutely.” US prosecutors have way too much power and we have repeatedly seen how they have become corrupted—and, even worse, they never suffer sanctions for such things as hiding evidence from the defense, sending innocent people to prison (including to death row). For a prosecutor to get so much as a rebuke is rare, and for them actually have to pay a price for their crimes—for that is what they are—is so rare one can say that it essentially does not happen, even in the most egregious cases. …
Originally posted on colouredjustice.wordpress.com:
A Far Cry From ‘CSI’
by A.C. Thompson
ProPublica, Jan. 8, 2012, 12:01 p.m.
Shirley Ree Smith has spent the past 14 years in prison or virtual house arrest while the nation’s two most influential courts have engaged in legal bickering over whether her conviction in the 1996 death of her seven-week-old grandson was grounded in facts, not speculation. (Michael Robinson Chavez, Copyright, 2011, Los Angeles Times. Reprinted with permission.)
This story was co-published with the Los Angeles Times . ´California Gov. Jerry Brown is considering granting clemency to Shirley Ree Smith, a grandmother convicted in 1997 of shaking to death her 7-week-old grandson, Etzel Glass. Sentenced to 15 years to life in prison, Smith insists she’s innocent.
Andrew Cohen retweeted
David McCallum (pic) & Willie Stuckey falsely confessed to murder @ 16. Exonerated yesterday: http://bit.ly/1rzYIFO
On October 20, 1985, 20-year-old Nathan Blenner was forced into his car and abducted in Queens, New York. The following day, Blenner’s body was found in Aberdeen Park in Brooklyn with a single gunshot wound in the head. His car was found on October 22 when a security guard reported that a group of youths set it ablaze on Fulton Street in Brooklyn.
Police canvassed Blenner’s neighborhood and found a woman who said that about an hour before the crime, she was washing her car on the street about a block from Blenner’s residence. She told police that two black men walked by and one said she had a nice car. She replied that if her car were stolen, she would “know where to look.” The woman said the men were in their 20s and one had braided hair. One was 5 feet 10 inches tall and the other was 5 feet 6 inches tall.
The woman went through several police books of mugshots of robbery arrestees, but she did not identify anyone. …
6 Prison Stories Reveal How Flawed Our Justice System Really is
After 14 years on Florida’s death row, Frank Lee Smith died of cancer in January 2000, before he was exonerated of rape and murder. The DNA results not only cleared Smith of the crime, but also identified the true perpetrator, Eddie Lee Mosley.
According to the Innocence Project, 311 people in U.S. history, 18 of whom were sentenced to the death penalty, have been freed after DNA evidence proved them innocent. The average DNA exoneree has served 13.6 years behind bars.
At the center of the national death penalty debate today is the controversial case of Cameron Todd Willingham, put to death for the arson-murder of his three little girls. But was he guilty?
Watch the Full Program
October 19, 2010
Did Texas execute an innocent man?
Several controversial death penalty cases are currently under examination in Texas and in other states, but it’s the 2004 execution of Cameron Todd Willingham — convicted for the arson deaths of his three young children — that’s now at the center of the national debate.
In Death by Fire, FRONTLINE gains unique access to those closest to the Willingham case — meticulously examining the evidence used to convict Willingham, offering an in-depth portrait of those most impacted by the case, and exploring the explosive implications of the execution of a possibly innocent man.
“The state of Texas executed a man for a crime that they couldn’t prove was really a crime,” nationally renowned fire scientist John Lentini tells FRONTLINE.
The re-examination of the case turns on a critical finding that came only weeks before Willingham’s scheduled execution: The investigators who determined that Willingham had set the fire that killed his three daughters had relied on an outdated understanding of arson evidence. “Todd Willingham’s case falls into that category where there is not one iota of evidence that the fire was arson,” forensic scientist Gerald Hurst tells FRONTLINE of the results of his review of the evidence. “Fundamentally, this was a classic accidental fire.”
Death by Fire tells the story a writer named Elizabeth Gilbert who first began to question Willingham’s conviction and to draw attention to the possible miscarriage of justice after corresponding with Willingham as part of a prison pen pal program. As Gilbert dug into Willingham’s case, she found problems with the alleged jailhouse confession and the evidence that Willingham was a sociopath or Satanist. In fact, the satanic images prosecutors had introduced at trial were posters for the rock bands Iron Maiden and Led Zeppelin. “They never established a motive,” Gilbert tells FRONTLINE. “So then their motive shifted to Todd just being an evil person.”
JUST GOT A COMMENT:
(a) “Family’s Effort to Clear Name Frames Debate on Executions”, John Schwartz, New York Times, October 14, 2010,
(b) The Innocence Project Invents False Confessions