Just Wrong: The Aftermath of Wrongful Convictions

The strength of our criminal justice system depends on its ability to convict the guilty and clear the innocent. But we know that innocent people are sometimes wrongfully convicted and the guilty remain free to victimize others. The consequences of a wrongful conviction are far-reaching for the wrongfully convicted and the survivors and victims of the original crimes.

The documentary Just Wrong: The Aftermath of Wrongful Convictions, From Crime Victims to Exonerees, chronicles the experiences of six individuals — three exonerees who spent decades in prison for crimes they did not commit and three crime victims or survivors whose lives were impacted by a wrongful conviction.

Watch Just Wrong to see how their lives were interrupted and the challenges they face; then read below to learn about the story behind the video.

Role of Systemic Error and Tunnel Vision in Erroneous Convictions (3 of 3)  In this interview Jon Gould, Ph.D., discusses the role of systemic error and tunnel vision in erroneous convictions. Dr. Gould is the Director of the Washington Institute for Public and International Affairs Research, American University. (Opinions or points of view expressed represent the speaker and do not necessarily represent the official position or policies of the U.S. Department of Justice. Any product or manufacturer discussed is presented for informational purposes only and do not constitute product approval or enforcement by the U.S. Department of Justice.)

Ten Significant Factors in Erroneous Convictions (2 of 3)  In this interview Jon Gould, Ph.D., discusses ten statistically significant factors related to wrongful convictions.

Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice (1 of 3)  In this interview Jon Gould, Ph.D., discusses the bottom line findings from the study “Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice.” Dr. Gould is the Director of the Washington Institute for Public and International Affairs Research, American University. (Opinions or points of view expressed represent the speaker and do not necessarily represent the official position or policies of the U.S. Department of Justice. Any product or manufacturer discussed is presented for informational purposes only and do not constitute product approval or enforcement by the U.S. Department of Justice.)

Video: Examining Police Officer Crime  Dr. Philip Stinson, Bowling Green State University, discusses the findings of his research on crimes committed by police officers.

 

 

Miscarriage of Justice

How effective is the system for investigating miscarriages of justice in England and Wales?
Critics say the Criminal Cases Review Commission, the body charged with examining potential wrongful convictions, lacks teeth and needs to be thoroughly reformed.

Are they right?

Allan Urry examines cases in which prisoners, campaigners and lawyers say the CCRC doesn’t do enough for those who continue to protest their innocence.

Should the Commission be making more use of the latest DNA techniques to re-examine verdicts which relied on circumstantial evidence?

And why did the CCRC twice refuse to pursue the case of a man who spent 17 years in prison for a serious sex crime he didn’t commit?

Producer: Rob Cave.

 

No defence: miscarriages of justice, lawyers and poor representation

By Jon Robins

‘It seems to be very difficult for the Court of Appeal and the CCRC to accept that some lawyers themselves who conduct trials are responsible for wrongful convictions; to put it simply they are not up to the job.’
Maslen Merchant from Wrongly Accused: who is responsible for investigating miscarriages of justice?

It is true, to an extent, that the Court of Appeal is reluctant to accept that a convicted person’s legal representatives were inept, writes Tom Wainwright. It has been said on many occasions that such assertions are to be approached with ‘healthy scepticism’. What is of more concern, what the court seem to have more difficulty accepting, is just how much of an effect poor representation has on the trial process.

• Tom is a criminal barrister at Garden Court
• This is essay is from a new collection of essays (No defence: miscarriages of justice and lawyers) as part of the Justice Gap series and following on from Wrongly Accused: who is responsible for investigating miscarriages of justice? (to be published in association with Solicitors Journal and Wilmington). You can download that collection HERE.
• Contributors for No Defence include Eric Allison; Dr Ros Burnett; Prof Ed Cape; Dr Dennis Eady; Francis Fitzgibbon QC; Mark George QC; Andrew Green; Campbell Malone; Michael Mansfield QC; Mark Newby; Daniel Newman; Paul May; Dr Angus Nurse; Correna Platt; Julie Price; Dr Hannah Quirk; David Rose; Adam Sampson; Satish Sekar; and Tom Wainwright. Thanks to all.
• The pic is called ‘A Figment of your Imagination in Time’ (HMP Edinburgh, pencil on paper) and is from the Koestler Exhibition for Scotland, November 2012

Most of the time the Appeal Court will try to avoid dealing with the question of incompetence altogether. In Day [2003] EWCA Crim 1060 the court proclaimed that incompetent representation ‘cannot in itself form a ground of appeal or a reason why a conviction should be found unsafe’.

Instead of examining the standard of preparation or advocacy in detail, the court will usually look at the evidence which was or was not put before the jury as a result. For example, where the advocate did not object to prejudicial evidence being adduced by the prosecution, the court will focus on whether or not that evidence should have been introduced. If it shouldn’t have been, there has been an error in the trial process and it does not matter whether it was objected to at the time.

It is not that ineptitude is difficult to accept in such cases. It is self-evident. Instead of dealing with it, it is treated as irrelevant and ignored.

Second-guessing
Of course, the Court of Appeal then has to decide if the conviction is ‘safe’ despite the error – i.e. would the jury still have convicted? This is, and could only ever be, an imperfect review.

No-one will ever know whether, if trial had proceeded as it should have, an acquittal would have followed. The accused is left in the position of having the jury’s verdict second-guessed, having been deprived of the opportunity to marshal a full and fearless defence in front of a panel of his peers.

Where this arises as a result of neglect by those entrusted to look after his interests, the affront to justice is as great as those miscarriages caused by the prosecution’s failure to properly investigate, disclose and fairly present their case.

Not all failings fit neatly into evidential boxes and it is not correct to say that incompetent representation cannot in itself form a ground of appeal. The Privy Council in Bethel v The State, 10th December 1999, (Unreported) acknowledged that it ‘is conceivable that counsel’s misconduct may have become so extreme as to result in a denial of due process to his client. In such a case the question of the impact of counsel’s conduct is no longer of any relevance, for whenever a person is convicted without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence.’

Not up the job
This often overlooked guidance would seem to provide some hope where the complaint is truly about the poor quality of representation, which cannot be directly linked to an evidential decision. It would appear to cover those lawyers who, as Maslen Merchant says, are ‘simply not up to the job’. It allows the Court of Appeal to examine those issues which are regularly raised by those seeking to appeal – lawyers failing to advise their clients properly, lawyers making half-hearted submissions or missing obvious points for cross-examination or closing speeches. Yet the cases where convictions have been quashed on this basis are few and far between.

In part, this may be because the Court of Appeal and the Bar Council’s guidance on advising on appeal in cases involving allegations of incompetence, could discourage some representatives from bringing such appeals. Those advising are told that such complaints must be viewed with that same ‘healthy scepticism’ and reminded that – as in all cases – grounds of appeal should not be submitted unless they have a ‘real prospect of success’. Yet the Court of Appeal has also stated that if ‘lawyers have failed in their duty to their client then other solicitors and members of the Bar must ruthlessly expose that failure and the courts must not hesitate to take the necessary action’. Similarly, the Bar Council guidance goes on to state that ‘[when] such allegations are properly made… counsel newly instructed must promote and protect fearlessly by all proper and lawful means his lay client’s best interests without regard to others, including fellow members of the legal profession.’ Those advising on appeal should therefore be willing to examine allegations of incompetence and challenge it where it is established.

Drawing the line
The real difficulty is in trying to objectively identify incompetence and determine the point at which it has resulted in a denial of due process. We cannot require every advocate to perform to the standard of a top QC. Almost every conviction would be quashed. Where below that we draw the line is a question the courts have struggled with. Advocacy is an art and not a science. Different witnesses call for different cross-examination techniques. Different evidential scenarios call for different trial tactics. Different audiences call for different persuasive techniques. There is rarely a right answer to problems raised in trials but rather a range of answers, within which an advocate has to make finely balanced judgments, often in the heat of the moment. Some of the best results can come from Counsel following their gut instincts and too prescriptive a test could result in risk-averse ‘defensive advocacy’.

The test for when incompetence has led to a denial of due process seems to be along the lines of ‘we know it when we see it’. Hypothetical examples were given in Bethel and included where the advocate’s judgment was ‘impaired by senility, drugs or mental disease or where no instructions have been taken’.

Further examples can be found in Boodram v The State [2002] 1 Cr App R 103 where the advocate somehow did not realise until the trial was nearly concluded that he was actually engaged in a retrial and in Bernard v The State [2007] UKPC 34 where an advocate who had only been practising for three months was appointed on the first day of a murder trial.

Although these examples show some willingness to examine the effect of poor advocacy on the trial process, they are unlikely to set the bar as high as most people would expect. Furthermore, they are all Privy Council cases. The Court of Appeal, conversely, upheld convictions in R v Bolivar [2003] EWCA Crim 1167 where leading counsel was conducting two trials at the same time, whilst on bail for a serious offence and having just been adjudicated bankrupt. Due process is not mentioned in the judgment.

Unfortunately, it is likely that in the future the Court of Appeal will need to get over its reluctance to grapple with the question of ineptitude. When every Government action appears designed to undermine the need for proper investigation, preparation and presentation of defendants’ cases, it is more important than ever that the Court of Appeal increase their scrutiny to guard against the risk of miscarriages of justice occurring.

In the meantime, the public should be aware of the importance of satisfying themselves of their lawyers’ ability before trial and not simply assuming that the Court of Appeal will save them if their representation is not up to scratch.

Counsel should continue to fight to ensure that they have the time and facilities to properly prepare their cases and put forward the strongest defence possible. Where failings have taken place, there is scope to challenge the safety of convictions, as set out here, and those advising on appeal must do so fearlessly.

Acknowledging that there are those who are not up to the task acknowledges just how important and essential it is that that task is carried out competently. Suggesting that inadequate representation makes no difference to the outcome undermines the system as a whole.

This article was originally published by Jon Robins on his website http://www.thejusticegap.com

• Author: Jon Robins

Jon is editor of the Justice Gap. He is a criminology lecturer at Brighton University and a freelance journalist. Books include Justice in a Time of Austerity (Bristol University Press, 2021), Guilty Until Proven Innocent (Biteback, 2018), The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is twice winner of the Bar Council’s journalism award and has won Halsbury Legal’s journalism award

All the President’s Muses: Obama and Prosecutorial Misconduct | New York Observer

Chronic bungling by DOJ officials who have the President’s ear.

By Sidney Powell • 06/13/14

As Ninth Circuit Chief Judge Alex Kozinski has written, prosecutorial misconduct has become “an epidemic.” And evidence has come to light that our president, the nation’s chief law enforcement official, seeks his counsel from the worst.

If ever a picture was worth a thousand words, it is a recently released White House photo of President Obama and his muses—if one only knew the truth behind those muses whispering in the President’s ear as they strategized in the aftermath of the Benghazi tragedy. To understand the (politely-put) “lack of transparency” from the White House, the enormous politicization of the Department of Justice, the release of Taliban leaders from Guantanamo, refusal to cooperate with congressional investigations, the IRS’s harassment of political opponents, and the cover-up of Benghazi, read on.

President Obama’s right-hand woman Kathryn Ruemmler, conveniently seated to his right, was his longest serving White House Counsel and remains one of his closest and most trusted advisors. When Mr. Obama selected Ms. Ruemmler to advise him on the most important legal matters, including the selection of federal judges, responses—actually oppositions—to congressional investigations, assertions of executive privilege and expansive executive orders, Mr. Obama said she “was an outstanding lawyer with impeccable judgment.” The press reported that Jamie Gorelick said Ms. Ruemmler knew “the traditions and values of the administration.”

Upon her recent departure, the President said he “deeply valued her smarts, her wit, her impeccable judgment — but most importantly her uncanny ability to see around the corners that nobody else in the room anticipates.” More aptly put, she had an uncanny and nefarious ability to circumvent the rule of law by cutting those aforementioned corners.

Ms. Ruemmler returned as a Partner to the prominent international law firm Latham & Watkins, where she has sheltered intermittently between stints in the Department and the White House.

If you were feeling some sense of relief that Ms. Ruemmler is no longer in the White House, let that be fleeting. Obama also said that he “will continue to seek her counsel, and most of all, I am proud to call her a close friend.”

Disturbingly, evidence has surfaced that the President Obama’s close friend and senior advisor violated her oath “to protect and defend the Constitution of the United States,” the rules of legal ethics, not to mention the law. As a senior member of the Enron Task Force, Ms. Ruemmler prosecuted four Merrill Lynch executives and sent them to prison on an indictment that was “fatally flawed.” The conduct the prosecutors alleged was not criminal. At the same time, she deliberately hid exculpatory evidence—that is, evidence she was constitutionally compelled to hand over to the defense. Indeed, the prosecutors not only acknowledge the evidence as exculpatory, they yellow-highlighted it as such—then buried it.

Not only did Ms. Ruemmler hide the evidence she had identified as crucial to the defense, but she signed the false and misleading “disclosure letter” to defense counsel. Ms. Ruemmler then elicited hearsay testimony from witnesses that was directly contradicted by the first-hand evidence she and her Task Force hid. She capitalized on and compounded the injustice, repeatedly telling the court and jury “facts” that were directly refuted by the evidence she hid.

The Fifth Circuit Court of Appeals ultimately reversed 12 out of 14 counts of conviction against the executives, acquitting one entirely. All the defendants were released, after having spent up to a year in prison on a sham indictment, while Ms. Ruemmler and her cronies continued both to hide the evidence that defeated the government’s case and to demand that the Merrill executives be prosecuted a second time on the same indictment.

Mr. Obama’s second muse, directly to his left in the photo, is Lisa Monaco—probably just a coincidence that she’s a close, longtime friend of Ms. Ruemmler—who also served on the elite Enron Task Force. Ms. Monaco was implicated in the prosecutorial misconduct that infected the Enron Broadband case prosecution. Houston Judge Vanessa Gilmore was irate with the prosecutors. They elicited false testimony from a government witness, threatened witnesses for the defense with indictment if they testified, and used evidence already ruled inadmissible. The Broadband jury wised up. It hung on some counts and acquitted the defendants on others. Of course, the prosecutors demanded a second trial. Drunk on unlimited taxpayer resources, they continued fighting to keep the evidence hidden and protect the ascension of the cabal.

Obama chose Ms. Monaco to be his Counter-Terrorism advisor. Was that because of Ms. Monaco’s experience with the “terror of a prosecutor” Leslie Caldwell, also from the Enron Task Force, who now heads the Criminal Division of the Department of Justice? Ms. Caldwell spearheaded the destruction of Arthur Andersen LLP and its 85,000 jobs only to be reversed 9-0 by the Supreme Court because of the flawed indictment and the absence of criminal intent.

Or was Ms. Monaco chosen because of her illustrious rise in the Department of Justice following her Task Force stint? And there was also her close connection with the FBI, where she had served as Director Mueller’s chief of staff, apparently while Enron Task Force Director Andrew Weissmann (who helped Caldwell destroy Andersen) also served as special counsel to Mr. Mueller. Mr. Weissmann later became General Counsel for the FBI in 2011 while Ms. Monaco was heading the Department’s national security division.

It leaves one to wonder why the former Enron Task Force cabal dominates the president’s inner circle? All of their trials were tainted with Supreme Court and appellate reversals, outrageous abuses of government power, a plethora of prosecutorial misconduct, and even guilty pleas had to be withdrawn because of their over-reaching.

All the President’s muses could learn something from All the President’s Men: “Nothing’s riding on this except, uh, the first amendment to the Constitution, freedom of the press, and maybe the future of the country.”

The picture is rounded out, shall we say, by the presence of yet another Obama muse: Susan Rice. She was not on the Enron Task Force, but is, as George F. Will politely described it in the Washington Post, “accident-prone.” Individually or combined, their disregard for truth, for individual rights and liberties, their willingness to hide evidence and intimidate witnesses, and their contempt of Congress and for the Rule of Law, is staggering. Bowe Bergdahl, the Taliban leader-release, and the Benghazi cover-up are but a mere sampling of the corruption. Perhaps the President would “rather laugh with the sinners than cry with saints,” perhaps his muses are much more fun, but where does that leave the rest of us?

Attorney General Robert H. Jackson once said, “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . .While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” A prosecutor has almost unilateral, unchecked ability to destroy the lives of those he charges. It is beyond troubling that our top law enforcement officer chooses the company of those who repeatedly failed their duty.

Sidney Powell worked in the Department of Justice for 10 years and was lead counsel in more than 500 federal appeals. She is the author of Licensed to Lie: Exposing Corruption in the Department of Justice.

All the President’s Muses: Obama and Prosecutorial Misconduct | New York Observer.