Mephisto2

Emphases in the above quotation were added by the poster.

http://www.smh.com.au/articles/2004/...927472742.html


So why do so many states refuse to let convicted prisoners use DNA analysis in their attempts to prove their innocence?

This kind of thing makes me angry, and I'm not even American!


Mr Mephisto

Rekna

It's a shame. The only thing I can think of is doing DNA is expensive and apparently our resources are low. Of course we could always add more money to getting DNA done if it were a priority for people.

smooth

The main reason is that no court, other than the trial court, can try an issue of fact.

One the facts are in and decided upon, the only things appealable are questions of procedural error--and only if 'preserved' (objected to on the record).

New facts of evidence are not allowable into evidence on appeal. Although sometimes we hear about cases being reopened and such, it's entirely discretionary without legal standing.

But I'd point to the reason Rekna did for why it isn't done at the trial level.

I guess I should also point out that, as much as it pains me to admit this, by the time someone comes to trial he or she is pretty much guilty.

You just plucked one person out of 2 million incarcerated individuals.

I'm of the persuasion that 1 person is too many even if it means X amount (haven't determined it yet, maybe to be hashed out in philo board) of guilty go free.

__________________
"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

Mephisto2

If that's true, thank you for enlightening me.

You cannot be serious! Innocent until proven guilty is one of the lauded standards for which the US stands, isn't it?

I'm astounded at that statement.

I didn't pluck one person. There have been plenty of examples of this happening. The issue at here is not this one person, but the fact that many states do not allow someone to refer to DNA analysis after their conviction. I could also point out that, in many cases, DNA evidence was simply not available at the time of their conviction, but I should assume this is obvious.

Mr Mephisto

smooth

Yes, I agree that innocent until proven guilty is a belief in our judicial system--it's also a farce.

I cringe when I hear the DA speak like that to any students in any classes I TA (btw, I'm a crim, law & society ph.d. student), but the reality is that by the time someone stands before a jury the lock is pretty much in. If you happen to have an innocent person in the docket, there really isn't much to be done at that point.

I would hold that the stronger argument is that people walk around with different notions of culpability and/or what the crime really is rather than whether or not a particular person did a particular behavior.

My project is to ensure that the context of a given behavior is presented to the jury so they can make a better informed decision as to whether it should be punishable by the pre-determined amount of prison time--not whether the person actually did or did not, for example, shoot someone. Almost all times the person before the court did do a deviant behavior. The other times might be a case like the one you just referred to: but there haven't been plenty of cases in the sense you made it out to be. Plenty for people like you and me, but less than 20 nonetheless. Our criminal justice is not like yours up there. We churn through millions of people per year. I was giving you a figure for how many people are behind bars at this one moment in time. That's just a snapshot of the millions of people churining through the system and doesn't reflect the people on various types of supervison--both pre- and post-prison. Our system is massive and I don't think people even fathom how we churn through our population.

You did just pluck a single instance out of approximately 2 million people currently incarcerated. You have no possible way to know how many more are currently behind bars who should not be. The possibility that it could just be this one is a fact, although more being present is also a possible fact. Neither you nor I nor anyone else studying this phenomenon knows the extent and we need to be very careful how rearrange or dismantle various machinations of the criminal justice system. I already told you I believed that just 1 was 1 too many even at the expense of releasing others believed to be guilty--I don't know what more you'd want me to say on that subject other than to say that your posted story resonates very deeply with me--especially the part about not even getting a bus ticket after someone kicking your ass out of the pen after the court finally overturns the conviction; but that's so far into another thread that I may never bring it up again on this board.

But I'm not going to sit here and think in my mind that 2,000 people (that's .001 percent of 2,000,000--the most improbable cut-off point for statistical analysis) are currently incarcerated for lack of DNA evidence that could exonerate them. That 2 mil figure is general population. DNA evidence doesn't do much for the drug user (why our prisons are bursting, btw), so my numbers are artificially inflated but heuristically useful in the sense that we really are talking about an infantismile population (guilty for want of DNA that could prove otherwise).


What I will do is offer an alternative--open appeals to allow evidence that wasn't available during the time of conviction or that was not introduced due to ineffective public counsel.

Of course, we are trammeling on some very deep-felt social issues. Not the least is that we are now suggesting increased expenditure on convicted criminals in a social climate where regular citizens are going through hard times and our long-term economy is shifting in perilous ways.

You tell me how to remedy this kind of issue in our current social climate and I'll listen.

__________________
"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

OpieCunningham

smooth - that's very interesting, thanks.

Question - what if we throw death row into the mix? how are the numbers you presented changed? is dna evidence easier to present or bring to appeal?

smooth

I believe approx 3500 inmates currently sit on deathrow.

As far as I know, their appeals are held to the same standards as regular appeals--but I think many states have various other types of review processes to review petitions in order to reduce the load on the courts.

What we have in the "appellate court" system is a very stringent processes whereby clerks and such scan the documents before they hit the desks. In the states I have looked at (the west), cases are usually AWOP'ed (affirmed without opinion). That seems to be like a rubber stamp. No matter anyway, the court can not review a question of fact--the fact finder is either the judge (a bench trial) or a jury (trial by peers).

Once a piece of evidence is reviewed by the fact finder, it can never be reviewed again as a question of fact. In my current view, this is one of the most fallable pieces of our system--but I may not know enough to appreciate why this is best. It could be as simple as cost and time.

Most appeals are frivolous. That's not to say that they don't have an issue to any regular joe. But when we hear about these types of appeals we think the petitioner is just bogging down the system. That occurs. But even an issue that we might consider viable would not be if it wasn't objected to during trial and preserved for the record.

For example, if an officer searches a house, that search is subject to scrutiny as to whether it was legal. If the defense never raises the question, that search can never be questioned in any other appeal court. If the judge won't hear an objection to the search, an attorney can preserve the error on record ("I object"). The appeal court will then look at the record in the "light most favorable to the prosection" (remember, the case has been 'proven' so the appelant is on the lower end of the stick now) and decides whether: a) the judge erred in judgement as to whether the search objection should have been heard and b) whether the error materially adversely affected the case (although, nothing in the record, since the objection wasn't heard, would allow an appeal judge to make such a distinction). There is no other way to put this than to say this is an intentionally fucking incredible bar to overcome.

The appeal of the appeal then goes to the State Supremes. They look to see whether the lower court erred in it's judgement (not the trial court, that's been decided --> they review whether the appeal process was adhered to proceduraly). After they seal the case, and only after the appelant has "exhausted all state remedies" can the convicted appeal to the Feds--and only if a federal rule has been broken. Usually effectiveness of council or illegal incarceration. We are now in the process about 2-3 years at this point.

The feds started new timelines to ease the pressure on the court load. At the time I was most interested in seeing an appeal go through , the timeline was 2 years of inactivity. As long as an action was pending, the clock stops. In between filings, it runs. Not very many people make the cut, and their appeal stops at the state supreme. The vast majority just get the hell out of prison by then, actually, and their case is rendered moot by the court.

For the few that make the cut, the entire process is repeated at the fed level--except for one big difference. Their is no Supreme Court for federal cases except if one is granted certiori. Appeal is not automatic--the Judges decide on a case-by-case basis which one they will review. We might be around the 10 year mark by now, btw. Most convicted are at or near release.

One procedure puts an interesting twist in this whole mix. It's called post-conviction relief. It was initially designed to ease the pressure off the courts (realize the trend here?). It's a lateral court procedure that is equavalent to a trial court. It's in here that new evidence can be introduced. It's also a twister in that the entire process of appeals start over--a very difficult deal if one wants to get their case out of the local boys and into the federal lap.

So here's the processs again:

Trial --> Appeal (no evidentiary reivew--strictly whether the court procedures were adhered to) --> Supreme Court Appeal (no evidentiary review--strictly whether the appellate procedures were adhered to) --> Post-conviction relief (evidentiary hearing; but no jury, claimant is currently in custody and no right to dress in plains clothes or gather evidence) --> Appeal the post-conviction (no evidentiary review) --> Supreme Court review of the appellate review of the post-conviction process (no evidentiary review) -->

If still in custody, and if someone still has some of that 2 year clock left to tick --> Habeas Corpus --> Federal Appeal --> Petition for certiori



Now, how this differs in capital punishment is that their appeals are pumped through quicker because their life is literally on the line. I think some courts have set up special appeal channels to deal with the crush, but I don't really know. I'd have to ask some buddies who specifically study death row convictions.

I can say this though: in no instance is DNA evidence easy to bring into the mix. After the initial trial, the petitioner loses all claim to innocence. He or she has been declard guilty and no amount of legal wrangling will undo that. Any and all considerations or analysis is done at the pure mercy of the court. AFAIK, there is no right to appeal except as laid down by states--and I'm not sure of any states that explicitly set down a right to appeal without looking it up.

As a society, we don't care about the welfare of our prisoners, largely based on the myth that they are coddled and have more 'rights' than the victims. We care even less about convicted murderers.

A judge who deals with such people day in and day out is going to care even less. In the face of public outcry to reduce expenses of the criminal justice system, their job is to get the body out of the court ASAP without a lenghty, expensive procedure--no matter at what point in that process I outlined. They also aren't likely to think the person could be there on accident. They, like the public, look at that long line of bureaucracy as a method that legitimizes the process. After all, wouldn't someone have caught a mistake in all of that?

All of these factors come into play when we ask ourselves why a lower judge wouldn't let new evidence into consideration when a convicted murderer is requesting a review.

I guess the larger question is: who cares?

I mean, who really cares about those 3500 people? How do we find the few innocent people in there without unraveling our judicial processes and opening a flood of appeals based on requests to hear new evidence? We can't even adequately handle the flow of appeals now--let alone if people could raise new issues every few years.

Oh shit, I forgot to mention a possibly critical stat: just over 90% of cases never go to trial--they are settled by plea. There is no appeal to plea. I mean, people appeal it because that's what they do. But no action is ever given to people who plea out. And if they did somehow win, they'd have to face the original charges that were dropped during the plea process.

I can't stress this enough: Our courts are working at over capacity and they don't even have trials for less than 10% of the cases that come before them.


I realize that didn't really answer your question directly. But hopefully you can dig some insight into the context of how these issues are played out from that mess I wrote.

__________________
"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

hokieian

Just out of curiosity, what does someone with your credentials do for a living (after obtaining the Ph.D., of course). I am assuming that it is not a law degree.

Why not just go to law school? It seems that you could do the same thing with a J.D. as a Ph.D. and make more monwy doing it.

(BTW, I am wishing I had gone to med school instead of grad school now that I am over 5 years into a Microbiology Ph.D. - just one more thing that I know now that I wish I had known then . . .)

smooth

I guess the short answer is that I'm not in it for the money. I actually have deep personal reasonons for correcting an institutionalized procedure that tears apart the social fabric of our communities--most people plunk crime in this category (including many of my peers), but I refer to the criminal justice system, the way we incarcerate fellow human beings, and what we heap on their shoulders upon release while hoping they won't re-offend.


I'm lucky in the respect that I'm at an upper-tier research univsersity. So the profs expect that we will work for a place like RAND or some such think tank or other top tier research insitution. Of course, the money isn't toooo bad.

I think that some of use hold dual doctorates (a path I am considering). But, truth be told, some of my "qualifications" preclude me from practicing law in some states , but they do make me very valuable in the field I chose.

But as a fellow grad student in the sciences, I suspect that you have or had an urge just to study things and add to the human knowledge pool. I guess don't tell me if that initial fire has been extinguished

__________________
"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

irateplatypus

i don't know how much of smooth's appraisal of the "guilty until proven innocent" subject i'd agree with, but...

this truly is an awful thing to hear of. being held in prison innocent of charges for 22 years is... i'm not sure there are many things worse that can happen to a person in our society. the state of florida should be ashamed. it should pony up enough money to make sure this man is comfortable for the rest of his life.

no bus fare? ridiculous.

__________________
If you will not fight when your victory will be sure and not too costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves.

~ Winston Churchill

hokieian

I wouldn't say that that initial fire has been extinguished, I just am not sure if it is enough anymore. After almost 5-1/2 years of grad school (with another 8-10 months to go) I am getting pretty burned out on research. I still love science and all the things that science can accomplish, but the actual day-to-day tediousness of it is getting pretty old.

I am considering going to law school myself in order to practice intellectual property law for a biotech company, but that probably will not be in the near future as the wife really wants to start having kids and we can't really afford another 3 years of school (either monetarily or psychologically). One day though , I think that is what I would really like to do.

smooth

Not to derail or anything, but I've written a shitload and maybe people will just want to digest instead of me adding more for now

Good luck in your endeavors. All those reasons resonate with me, as well. Also, though, don't compare your field with criminal defense . At least, no money in the people I'd be desiring to defend!

__________________
"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

Mephisto2

Once again, I'm astounded at that statement.

There have been many many cases of police departments, individual detectives or officers and even officers of the court fabricating evidence, hiding facts, avoiding due disclosure... effectively "framing" people.

This is certainly not the norm, but it has happened.

Yet here you are stating that a fundamental tenet upon which the entire US justice system is based, and indeed one shared by all democratic western civilizations, is a farce.

You specifically state that once someone is in court that they are, effectively at least in your eyes, guilty.

Wrong wrong wrong.

Statisical probability does not, and should not, take the place of moral objectivism and the need to prove an accused's guilt.


This is wrong. For starters, I can refer to you to the work of Barry Scheck and Peter Neufeld. They alone have proved the innocence of 37 people, due to the use of DNA evidence. Twenty of these case histories are detailed in the book Actual Innocence: Five Days to Execution, and Other Dispatches From the Wrongly Convicted, written by Peter, Barry, and Pulitzer Prize-winning New York Times reporter Jim Dwyer.

You can read move about their activities at http://www.innocenceproject.org/

Now, no one should be silly enough to think that Barry Scheck and Peter Neufeld have discovered each and every wrongly convicted person in the United States. Therefore, by implication, there must be more.

Even at 37, we have already proved statement of "less than 20" to be wrong by a factor of 85%, based upon the work on only two advocates alone.


Let me go on.

Quoting directly from the ACLU, "As of February 2004, 113 inmates had been found innocent and released from death row. More than half of these have been released in the last 10 years."

Futhermore, "A study by Columbia University professor James Liebman examined thousands of capital sentences that had been reviewed by courts in 34 states from 1973 to 1995. “An astonishing 82 percent of death row inmates did not deserve to receive the death penalty,” he said in his conclusion. “One in twenty death row inmates is later found not guilty.”

I also respectfully refer you to an analysis of the average number of executions per exoneration, at this URL: http://www.aclu.org/Files/OpenFile.cfm?id=14879

So we now see that your statement that Wilton Dedge's release was an aberration, or "just one person" is wholly, absolutely, and verifiably incorrect.

I don't know what you mean by "up there", but I don't disagree with you that the American justice system is overloaded.

Does that justify willfully ignoring the capacity to prove people's innocence? In my opinion, the answer is a resounding "No."

I respectfully refer you to the references above. As has been proven, at least 113 prisoners have been released from Death Row (since 1973) alone.

This does not take into consideration the number of prisoners who are serving jail time.

We could argue about making a statistical estimate, based upon the number of exonerations vis a vis the number of prisoners, to come at a number of presumably innocent prisoners, but I fear that would degenerate into "lies, damned lies and statistics".

Rest assured, however, that if 113 Death Row prisoners have been proven innocent, then a far greater number of the estimated 2,000,000 (your figure) prisoners are also innocent.

What's my point? Simply that those incarcerated and sentenced to death should not be forbidden the right to use DNA evidence. That's all.

It is not a possible fact.

It IS a fact.

You are of course correct. Neither you or I know the full extent. Yet there are those who are acting as advocates and civil libertarians who have studied the issue. What you and I should be careful about is not simply discounting that.


I don't really understand the point of that statement. I'm not suggesting that a large proportion of those incarcerated are innocent; simply a small proportion. And that they should be allowed to use DNA evidence to help prove their innocence.

If you wish to refuse to consider that, then by all means continue to do so. And I shall continue in my opinion that it is wrong.

An excellent proposal, and I suppose, one closest to what I would recommend myself (in an ideal world).

Well, there are no quick and dirty answers.

I would agree with your proposal above. But we're not going to change the world now, are we?


Mr Mephisto

Mephisto2

I should imagine that if you found yourself, or one of your friends or loved ones, in that situation then you would care. A great deal.

It is commendable that there are prisoner advocates, many of them working pro bono.

There have been many cases, not just in the US but also a great deal in the United Kingdom, where people have been found to have been deliberately framed. This is not the topic at hand here.

The issue is that if someone can prove their innocence by the use of DNA, then why should this not be permitted?

It really is quite simple in my eyes.

But then again, I'm not a US legal PhD. Things can sometimes look very black and white when one is not intimately familiar with the system.


Mr Mephisto

smooth

[deleted short biography]

I'm not talking about my eyes--I tried to be pretty clear about where my eyes were focused without giving up too much of my personal history.

I was referring to the eyes of the jury when a defendant stands before them.

My "up there" comment was in reference to me thinking you were from Canada. But maybe you are from Australia--I don't remember, but I didn't think you were from the states.

If anything, you won't find a stronger ally on this subject on this board than me. I hope we don't get hung on stat this and stat that, instead focusing on the larger problems facing the US judicial process--I'm not opposed to your position. Me, and a group of ex-con criminologists, form a growing movement of insiders turned pro and advocacy.

I was wrong on the 20 figure. 37 seems to be the known number. Neither is enough for the US public to do anything about--that was my intended point on that. I specifically stated that this wasn't my area of study. People close to me are deathrow advocates and they have my upmost respect. So do the fellow human beings sitting on the row.I am more concerned with conditions of confinement and community reintegration.


Oh yeah, and please pm me when you read this because I'm going to edit it shortly thereafter since it has too much indentifiable info for my tastes combined with my other posts.


2nd edit: thanks Mr. Mephisto for the PM. Totally respect your posts in this thread and elsewhere. Hopefully I didn't become too antagonistic. Any feelings you got from my posts in that regard are due to my own skeletons and nothing you said. Laters, bro.

__________________
"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

Mephisto2

That's fair enough and I accept I may have been arguing with shadows.

It appears I interpreted your opinion on the facts (ie, the "current situation as to the workings of the justice system") as a defence or justification of the system. I now see that you were simply expressing an opinion on how things "are", and not necessarily how things "should be."

As such, I apologise for that mininterpretation. I did find it an interesting discussion, even though it was built upon a house of cards!

Mr Mephisto