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Faulty evidence in child autopsies can lead to wrongful convictions: Part 1

2012-02-05T16:04:52Z

Previous posts have discussed how flaws in the death investigation system in the U.S. can lead to wrongful convictions. A recent post discussed how a man who was freed for a possible wrongful conviction of sexually abusing and killing a child under his care will face a new trial. This post as well as the next will explain some of the back story of this case and related issues.

Some of the cases that can be most difficult to determine a correct cause of death are those that involve children. There are not enough medical examiners and coroners in the U.S. who are certified as forensic pathologists and who also understand how disease and death looks in the bodies of children.

]]> Errors in a death investigation have heavily factored in various murder trials and have led to the wrongful conviction or wrongful accusation of at least two dozen caregivers or parents in the U.S. and Canada, according to an investigation by ProPublica and NPR. Some of these wrongfully convicted people spent years in prison before they had their convictions vacated.

The case of the Texas man who will face a new trial involves a six-month-old baby who died in his care. The man was around seven years into his 60-year sentence when his conviction was voided by his state's appeals court, but he will now face a new trial.

The next post will continue to discuss this issue.

Source: ProPublica, "The Hardest Cases: When Children Die, Justice Can Be Elusive," A.C. Thompson and Chisun Lee of ProPublica and Joe Shapiro and Sandra Bartlett of NPR, June 27, 2011

Rookie linebacker Aldon Smith arrested for DUI

2012-02-03T22:21:53Z

Aldon Smith, a linebacker for the 49ers, was arrested for DUI last weekend. The linebacker was booked into jail and held on $1,000 bond. The 22-year-old has since been released but will face a DUI charge in Florida, where he was arrested. If he is convicted of driving under the influence of alcohol, he may also be punished by his NFL team, but only then. The 49ers released a statement saying that they take the DUI matter seriously, but that they will let the legal matter run its course.

Smith was drafted by the 49ers in 2011 as the seventh draft pick. He had an excellent rookie season with the highest number of sacks among all rookies in the NFL. His 14 sacks were also a record for the 49ers for rookie linebacker sacks.

]]> If this is Smith's first-time arrest for DUI and he is convicted of the charge, it is possible that he will not have to serve any jail time. If convicted, he could face possible license revocation or suspension, have to pay fines and court fees, and have to attend alcohol and substance abuse classes, and have to serve community service hours. He would also probably serve some time on probation.

Source: USA Today, "49ers' Aldon Smith faces DUI charge in Florida," Jan 30, 2012

Man who was freed by appeals court will face new criminal trial

2012-01-31T03:45:34Z

The previous two posts discussed how an investigation by the news organization ProPublica has found that flaws in the death investigation system in the U.S. can lead to people being wrongly accused of serious crimes like child abuse, sexual assault and murder. ProPublica has found that there is a lack of people qualified to determine the cause of a child's death in the death investigation system, so a coroner may misinterpret clues during an autopsy and falsely accuse someone of murder.

As discussed in the previous posts, a man recently freed by an appeals court in Texas will face a new trial in the sexual assault of a six-month-old baby. The man was accused of sexually assaulting the child and causing injuries that led to her death. Other medical evidence suggests that the child may have died of a blood disorder.

]]> The man was the child's babysitter. He said that she kept getting sicker and sicker and eventually sought medical help. He said that she had symptoms for days but the mother, who was a doctor, was unconcerned.

The man's conviction was voided by the appeals court because they said that his attorney at the original trial did not do enough to challenge the medical evidence offered by the prosecution. They left it up to the local prosecutor to decide whether to re-try the man. The local prosecutor decided to have a new trial. Now, better medical evidence will be shown in the man's defense, but he will go back to prison if convicted again.

Source: ProPublica, "Ernie Lopez to Face Charges Again," A.C. Thompson, Jan. 27, 2012

Evidence in child abuse convictions can be misinterpreted: Part 2

2012-01-29T17:05:44Z

As discussed in the previous post, an ongoing investigation by ProPublica into the death investigation system in America has found that the system has serious gaps in quality and consistency of death investigations due to chronic underfunding, a lack of quality forensic doctors and a lack of government oversight.

These gaps can lead to misinterpretation of evidence in cases of unexpected death, which can lead to wrongful convictions for sexual assault, abuse, and homicide. This can especially be the case when it comes to unexpected deaths of children.

The symptoms of "shaken baby syndrome" were widely accepted for years, but now many doctors are wondering how many people may be wrongfully behind bars after a false conviction for child abuse based on shaken baby syndrome evidence.

]]> According to ProPublica, at least 23 people were accused wrongly of child abuse and murder based on medical evidence that was questionable. One grandmother who was convicted of killing her grandson by causing brain damage through shaking him is hoping that she will be granted clemency in the case. She was sentenced to 15 years in prison.

Her appeals made it to the U.S. Supreme Court, but they declined to overturn her conviction because a jury had convicted her. Many medical experts and her defense attorneys have pointed out that what were once considered telltale signs of shaken baby syndrome have become more controversial these days and wouldn't have been presented to the jury in the same way today.

Source: ProPublica, "Texas Court Voids Conviction in Child Death Case," A.C. Thompson, Jan. 25, 2012

Evidence in child abuse convictions can be misinterpreted: Part 1

2012-01-28T17:38:12Z

An important investigative report done by the news organization, ProPublica, found the death investigation system in the U.S. lacking in many ways. The death investigation system lacks oversight, uniformity, funding and enough doctors qualified to determine the cause of unexpected death.

This can be even more apparent when it comes to children's unexpected deaths, particularly because kids' bodies react differently to disease than adults and clues of deaths can be subtler since children and babies are more fragile. In the end, these problems can lead to a misinterpretation of the evidence in a death investigation and can lead to wrongful convictions for child abuse, sexual assault and homicide.

]]> A Texas man recently had his conviction for the sexual assault, child abuse and murder of a six-month old he was babysitting voided by the Texas Court of Criminal Appeals. The man was serving a 60-year prison sentence for the sexual assault and fatal child abuse of the baby in 2003.

The main evidence used against him at trial was questioned later by experts more experienced and knowledgeable in child sexual assault and child blood disorders than the person who performed the autopsy on the baby.

The next post will further discuss this issue.

Source: ProPublica, "Texas Court Voids Conviction in Child Death Case," A.C. Thompson, Jan. 25, 2012

Supreme Court overturns drug crime conviction

2012-01-27T18:38:48Z

The U.S. Supreme Court ruled on Monday that a man's conviction for a drug crime had to be overturned because the police violated the Fourth Amendment when they gathered key evidence against him. The Fourth Amendment prohibits unreasonable search and seizure and the justices said that the police had not correctly followed the instructions of a search warrant when they attached a GPS surveillance device to the drug crime suspect's car.

The justices left for another day the issue of GPS surveillance in general and where the line might be drawn between reasonable surveillance and unreasonable and unconstitutional "Big Brother" surveillance. Electronic surveillance is becoming more commonplace as nearly everything people do can leave an electronic trail. From e-mails, to credit card use, to GPS in phones and cars, it is not hard to track someone down or to see where they went or where they are going.

]]> How much the police can use this information in building criminal cases against people was not decided by the justices. The justices based their decision to overturn the man's conviction on the fact that the police had put the tracking device on the car in the wrong state after too many days had passed. If the police had followed the warrant it is unknown if the case still would have been appealed that far and whether the same result would have occurred.

The justices put off deciding those questions for the next case.

Source: The Washington Post, "Supreme Court: Warrants needed in GPS tracking," Robert Barnes, Jan. 23, 2012

Does mass incarceration take away civil rights won by African Americans during Civil Rights Movement?

2012-01-18T02:39:26Z

A recent provocative show on the National Public Radio show, Fresh Air, involved an interview with a legal scholar who has recently written a book that examines racism in the criminal justice system in the U.S. The legal scholar is an African American woman and used to work as a criminal defense attorney for the American Civil Liberties Union. She also used to work with people who were recently released from prison in order to help them get reintegrated into society.

Through her work and research she came to believe that the Jim Crow laws that used to keep African Americans from full, equal participation in society are still alive in the way that massive numbers of African Americans, particularly young African American men, are imprisoned. The scholar pointed out in the interview that more African American people are currently in jail, prison or under probation or parole than were slaves in 1850.

]]> In addition, she points out that more than half of African American men in major cities in the U.S. are under some kind of correctional control or have been convicted of felonies, which means they are stripped of many civil rights, such as voting, serving on juries and from being free from employment discrimination.

The scholar points out that this system may ultimately take away many of the rights that African Americans gained during the Civil Rights Movement. She believes that this may have been contributed to by the war on drugs that started in the 80s and resulted in many African American people being sent to prison for minor drug crimes. The recent retroactive passage of the Fair Sentencing Act (as discussed in the previous two blog posts) may be a step in the right direction toward improving this issue.

Source: NPR Books, "Legal Scholar: Jim Crow Still Exists in America," Fresh Air, Jan. 16, 2012

Crack cocaine sentences being retroactively reduced: Part 2

2012-01-13T15:05:49Z

As discussed in the previous post, the Fair Sentencing Act (FSA) of 2010 recently went into effect retroactively in order to reduce the unjust disparity between mandatory minimum sentences for those convicted of drug crimes involving crack cocaine versus powder cocaine. People who are currently serving overly long sentences for crack cocaine convictions can apply to have their sentences reduced.

As mentioned in the previous post, the Fair Sentencing Act will reduce the disparity between prison sentences for crack cocaine versus powder cocaine to 18 to 1. Previously, people who were convicted of drug crimes involving crack cocaine received sentences 100 times longer than those convicted of comparable drug crimes involving powder cocaine.

The move to apply the FSA retroactively is considered by many interested in criminal defense and civil rights as one of the most exciting developments in criminal justice in 2011, including the American Civil Liberties Union (ACLU).

]]> The ACLU recently had a blog post containing all the positive criminal justice developments of note from 2011 and highlighted the enactment of the FSA. According to the ACLU, more than 12,000 people will be eligible to apply to have their prison sentences reduced under the new law.

One of the reasons that mandatory minimums were so unfair is that the majority of people convicted of drug crimes involving crack cocaine are African-American and the majority of people convicted of drug crimes involving power cocaine are white.

Of the 12,000 people who can apply to have their sentences reduced, 85 percent are African-American. The new law is a step toward fairness, but many people remain cut off from their families in jail that should no longer be there.

Source: ACLU Blog of Rights, "The Criminal Justice Year in Review - 2011," Rachel Myers, Dec. 22, 2011

Crack cocaine sentences being retroactively reduced: Part 1

2012-01-12T17:33:05Z

Thousands of prisoners with crack cocaine convictions have a reason to celebrate. The Fair Sentencing Act, passed into law by Congress in summer 2010, has recently gone into effect retroactively. This means that the average sentence for those convicted of possessing or distributing crack cocaine will be reduced by three years.

About 1,800 prisoners have already been released as a result of the new law and 12,000 prisoners are currently in a position to request a shorter sentence. But before any sentence is reduced, a judge must determine that the release of the prisoners will not pose a danger to the community.

]]> The sentence reductions have come about because the previous sentences were not considered to be fair. To illustrate, under the old system, someone convicted of possessing five grams of crack cocaine would receive a five-year prison sentence.

On the other hand, an individual would need to be convicted of possessing 500 grams of powder cocaine in order to get the same 5-year sentence. That's a 100 to 1 ratio based on the weight of powder cocaine to the weight of crack cocaine for the same minimum sentence.

The huge difference between crack and powder cocaine minimum sentences was seen by some to be unfairly slanted against African-Americans who represent a large portion of the crack cocaine convictions. The new ratio will be 18 to 1.

According to CNN, Michael Nachmanoff, a federal public defender, suggests that the "right answer is 1 to 1, and people in the law enforcement community and the criminal justice system recognize that ... but that just means that there's still more work to do."

The next post will continue to discuss this issue.

Sources: CNN, "New rules slashing crack cocaine sentences go into effect," Carol Cratty, Nov. 1, 2011

Presidential pardons more often granted to white people than minorities: Part 2

2012-01-07T15:05:05Z

As discussed in the previous post, a recent investigative report by ProPublica and The Washington Post found that there is significant racial disparity in the presidential pardons process. According to ProPublica, white applicants are four times more likely to be granted a pardon than minority applicants.

The federal prison population is 38 percent African American inmates. But of the 500 applications for presidential pardon that ProPublica examined no African American applicants were successful. On the other hand, 12 percent of white applicants and 10 percent of Hispanic applicants were successful. Overall, ProPublica believes between 2 and 4 percent of African American applications are successful.

]]> Another case that ProPublica looked closely at was that of two women from the same town in Arkansas. One woman was white and was pardoned after serving prison time for defrauding the government by filing false tax returns in order to receive more than $25,000 in tax refunds in 1981. Her husband served more time in prison and paid a $5,000 fine. He said in the trial that he had talked her into the crime.

This woman had a similar application for a presidential pardon as an African American woman who had settled for a plea agreement wherein she pleaded guilty to one count of under-reporting her income in 1989 and paid a $3,000 fine. She believed she was innocent at the time, but paid the fine because it was cheaper than going to trial. Later, she wanted to become a nurse, but her felony conviction was keeping her from that dream. Her pardon was denied without explanation.

It is likely she was rejected because she didn't feel remorse for crimes she did not commit. One problem is that the people reviewing applications are prosecutors so they are biased toward the original prosecution. The woman may have been better off fighting the charges in 1989 if only she knew her chances to wipe the felony conviction from her record would be so low.

Source: ProPublica, "Presidential Pardons Heavily Favor Whites," Dafna Linzer and Jennifer LaFleur, Dec. 3, 2011

Presidential pardons more often granted to white people than minorities: Part 1

2012-01-05T19:29:41Z

ProPublica, along with The Washington Post, recently did an investigative report into the presidential pardons system in the U.S. What the journalists found is that white applicants are almost four times more likely than minorities to receive a pardon from the president.

A pardon forgives a federal crime. A pardon is not like an expungement, and the conviction will still stay on a person's record, but they will no longer suffer the loss of certain rights and privileges that go along with a felony conviction, such as not being able to vote or apply to certain jobs or for certain professional licenses.

]]> The ProPublica report found that race was the strongest indicator of whether or not someone would get a pardon. In many instances there would be two people with similar crimes and applications, but only the white person was granted a pardon whereas the black applicant was rejected.

In one case, an African American man from South Carolina applied for a presidential pardon but was refused. He had been sentenced to probation for possession of 1.1 grams of crack. He was a first-time drug offender and a Vietnam veteran, but he was turned down for a pardon. On the other hand, a white man received a pardon who lived in the same area and was a four-time convicted drug offender who served time in prison for selling 1,050 grams of meth.

The next post will further discuss this issue.

Source: ProPublica, "Presidential Pardons Heavily Favor Whites," Dafna Linzer and Jennifer LaFleur, Dec. 3, 2011

Is Judicial Impartiality Compromised by Facebook?

2011-12-29T12:03:00Z

Should judges be on Facebook? That is a question in the murder case of Murfreesboro Tennessee State University (MTSU) basketball star Tina Stewart. However, it applies everywhere, including South Carolina.

]]> Judge Don Ash has not recused himself from presiding over the murder trial of Shanterrica Madden, who is charged with first degree murder and evidence tampering. Moreover, the judge scolded the defense attorney in the case for mentioning that the judge might be prejudiced because of his connection, through Facebook, to several members of the MTSU athletic department as well as to members of the Rutherford County District Attorney's staff.

The judge has since deleted some of his Facebook friends in response to motions filed by defense attorney Joe Brandon, Jr. He said that he uses Facebook as a way to get to know the people in the community who elected him and that he represents.

So why shouldn't judges use social media? The answer, according to several state ethics boards, is that judges should approach each case with as little information as possible and make a determination based only on the facts presented in court. Knowing the defense or prosecution lawyers through Facebook or Twitter means that a judge has prior information about the participants in a case - information that could influence his or her decision.

Source: The Tennesean, "MTSU murder trial judge accused of bias won't step down from case", by Mark Bell, Dec. 21, 2011.

A Growing Focus on Prescription Drug Fraud

2011-12-28T00:03:00Z

The Wilmington, North Carolina, police and others are turning their focus to prescription drug fraud. An undercover investigator purchased the pain medication Percocet from a Wilmington doctor who has now been charged with drug trafficking. This case reflects a shift in priorities from trying to catch international drug traffickers to looking closer to home - at the local medical community.

]]> Part of the drive to stem the tide of prescription drugs flood the streets is the numbers: according to the Centers for Disease Control, prescription drugs kill more people each year than cocaine and heroin combined.

Law enforcement agencies are struggling to get up to speed with illegal prescription medications. These drugs are not actually illegal - they are just tightly regulated. Law enforcement needs to understand the medical terminology that doctors and nurses who trade in prescription drugs use to hide their activities. This and other differences have left police struggling to catch up.

Although there are differences between the trade in so-called street drugs and prescription medications, there are also some similarities. Detectives build networks of informants, just as they do when seeking to interrupt the flow of cocaine or heroin. And many of these informants are doctors who see patients who are doctor shopping in search of easy access to desired medications.

Source: StarNewsonline, "Drug war's focus turns to pharmaceuticals", by Brian Freskos, Dec, 19, 2011.

Holiday Message About Drunk Driving

2011-12-22T12:03:00Z

South Carolina has unveiled its program of stepped-up drunk driving enforcement, just in time for the holidays. Sober or Slammer, as the program is called, is designed to reduce the number of crashes and fatalities caused by drivers who get in the car after one too many. The traditional reasons to not drive after drinking are your safety and that of others as well as the legal consequences of a DUI arrest and conviction, This year, however, law enforcement asks drivers in the state to consider another reason before driving under the influence - money.

]]> If you are arrested for DUI - even if you are never convicted, you can face financial consequences such as:

Higher insurance premiums: The cost of insurance usually doubles.
Fines: Currently the fine is a minimum of $1000 and can rise to $2000.
Court-ordered education programs: Fees for the required Alcohol and Drug Safety Program start at $500 and can go up to $2500.
Bail: A bondsman charges at least $150.
Towing: Having your car towed after an arrest is usually around $150.
Reinstatement: For a first offense, the Department of Motor Vehicles charges $100. For subsequent DUIs, the reinstatement fee is higher.

Law enforcement wants you to remember that there is a significant cost to a DUI arrest, even if no one is hurt. And if someone is hurt or killed, your life will change forever.

Source: Times and Democrat, "Drunk driving has high cost in your dollars", Dec. 17, 2011.

Supreme Court May Review Father's Conviction

2011-12-20T15:03:00Z

The case of a man convicted for sexually assaulting and killing his 12-year-old daughter in a 2004 attack may be reviewed by the South Carolina Supreme Court. Billy Wayne Cope's conviction raises so many legal issues that a South Carolina professor has observed that the case will be taught in law schools for many years to come.

]]> Cope was convicted despite the DNA evidence that pointed at another man, a previously convicted sex offender with no known connection to Cope. The conviction was based on a confession, later recanted, made after he was falsely told that he had failed a polygraph test. After learning that the DNA test revealed that Cope had not committed the rape and murder of his daughter, police developed a new theory, alleging that Cope had conspired with James Earl Sanders, the recently released convict, and admitted Sanders to the house.

The case has drawn the attention of a variety of legal experts, and it will be the subject of a two-day conference at the University of South Carolina on the ethical issues in wrongful conviction cases.

Source: Charlotte Observer, "S.C. Murder Case Offers Lesson in Ethics", by John Monk, Dec. 16, 2011.