Let’s Advocate Against Wrongful Convictions!

The US Justice Department knows that potentially innocent people can be victims of wrongful convictions based on flawed forensic work. But what happens to the prosecutors who allow this horrible practice to continue? Nothing.

A few years ago, we learned through some investigative reporting that federal prosecutors they failed to notify defendants, or their attorneys, about cases they knew were faulty or weak. This is horrible!

While these defendants were not all convicted of the death penalty, and were not put to death based on a flawed case, this conduct is inexcusable. Why is it that no one is held accountable?

A Flawed Criminal Justice System

The system is flawed and shameful. We need to become better advocates, pay close attention to every case at risk of wrongful convictions at both the federal and state level (where they are rampant!), and then share the information with the public. Knowledge is power.

Timing is everything. We should bring the issue to the forefront during this current presidential race, and keep it on center stage until it gets the attention it deserves. Let’s look closely at the death penalty, too, and ask if we should really consider the death penalty in a climate with so many risks of false conviction. Is this a punishment we should even impose on a convicted felon?

Beyond being cruel and unusual punishment, there is always a chance that an innocent defendant could be executed. That cannot be reversed, and it should never happen. And yet it does.

Too Little, Too Late

Two years ago, the FBI released a scathing report, one that shed new light on one of the FBI lab’ worst scandals: The inspector general said the Justice Department did not properly review all of the cases by FBI examiners whose work was known to be flawed. Even when the FBI knew their work had been shoddy and the wrong person convicted – in death penalty cases as well – they didn’t bother sending timely notifications to the prosecutors in those cases, and never notified defendants’ attorneys at all.

And, sometimes when the FBI did notify the prosecutors, they never told the defendants’ lawyers. As a result, innocent people were put to death because of wrongful convictions.

It took five years to identify 60 death-row defendants whose cases had been criticized. Because of this, state authorities failed to stay sentences, and three men were put to death.

This is horrible. As the most civilized nation in the world, we should not put to death men and women who might not have committed a crime, or who might have been convicted based on questionable evidence.

The Media Is Our Advocate

We need to stay on top of the shoddy practices and let the public know when we discover it.

Thank you to the Washington Post for reporting in 2012 that Justice officials had knowledge of flawed evidence and testimony that might have contributed convictions of innocent people. The Post focused on one Texas case, and three men in Washington, D.C., who were represented by the Public Defender Service and have been exonerated. Problems at the FBI lab first surfaced in the early 1990s, when a scientist-turned-whistleblower named Fred Whitehurst reported that sloppy work by examiners was producing unreliable forensic testimony. Justice officials then launched a task force (that was active from 1996 to 2004) to ensure that potentially exculpatory evidence involving criticized agents was turned over to defendants. That did not happen.

The Post found that such notification rarely happened and that not all flawed cases were properly reviewed. Justice Department officials responded to the report, saying they had been diligent in trying to protect defendants’ rights in undertaking a review of unprecedented size and complexity. In one case mentioned, police investigated a death near Howard University, but no crime was suspected. However, the Department agreed that certain aspects of the Task Force review could have been more efficient or effective. The 26 surviving death-row inmates whose cases were included in the review were later notified that their convictions had been re-examined.

After the Post report, the inspector general recommended the notifications and retesting of evidence in 24 death-row cases in which the defendant was deceased. What’s more, the inspector general’s office said the department should notify all 2,900 defendants whose cases were reviewed by the task force, starting with 402 defendants whose cases were so problematic that the task force obtained a fresh scientific review. Their names were made public.

We need to stay on top of these matters. We need to make sure they are brought to the public. Meanwhile, I wonder why the prosecutors responsible for shoddy practices that could have resulted in the death of innocent people are not held responsible. They are they not charged with causing the deaths, and long incarcerations, of innocent men and women. So who is responsible when innocent men and women die because of shoddy work by federal prosecutors?

It is unlikely any of those involved with this vile and unforgivable conduct will ever be prosecuted because they are part of a system that is flawed. But we need to keep fighting for justice. The best way is to beware of the practice, and the possibility of false convictions. Do your research. Report them. They are still rampant in state prosecutions.

Burdick Law has a history of fair representation for those charged with some of the most heinous crimes. If you are in need of a criminal defense attorney who knows the law inside and out, and will give you your best representation, contact Burdick Law today for your consultation at 248-325-5000.

Federal Criminal Law – The Federal Code

There are literally thousands of federal criminal laws on the books today, and learning them all would take more than a few law school courses.  But we at Burdick Law want everyone who is interested in understanding how the federal system works, or who is facing charges in that system, to have a solid understanding of what the laws are, what they mean, and what kind of penalties attach to them if you are convicted.

The Federal Criminal Code is divided into “Titles” or general sections.  The most expansive set of criminal offenses is contained in what is called Title 18 United States Code.  There the Code describes “general” criminal offenses, such as conspiracy; aiding and abetting; mail fraud; wire fraud; embezzelment; racketeering; money laundering; healthcare fraud; perjury (lying in court) and false statements (lying to to any federal officer or agent); racketeering (“RICO”); terrorism; obstruction of justice.

The second most commonly used sections is Title 21, which describes prohibited conduct related to drugs and narcotics violations.

Another important section is Title 31, which addresses all manner of financial institution violations, such as international money laundering and illegal structuring of financial transactions to avoid reporting requirements.

One important general matter relating to federal criminal law: in most state courts, there are generally what is called preliminary examinations (also called probable cause hearings) in advance of any referral of a felony charge to a trial court.  The “neutral examining magistrate” must find probable cause to believe a crime was committed and that the defendant committed that crime.

In federal court there is, instead, grand jury presentation, review and consideration of the allegations made by an Assistant United States Attorney against individuals.  The theory of a grand jury is that these citizens listening (in secret) to the government’s allegations stand in the place of that independent state magistrate, and make that probable cause call.

More about all of these matters to follow soon – so please follow Burdick Law, P.C.

Criminal Law – FBI Hair & Ballistics “Experts” – Death Penalty

Want to know why the death penalty should NEVER be allowed in criminal law? Here’s a perfectly terrifying reason: Yet another death row inmate was just added to the growing innocence list compiled by the Death Penalty Information Center (DPIC), after he was cleared in the murder of an elderly woman and her daughter – but he’s still sentenced to die for the murders of two college students. Think Progress.Org has published this expose of FBI pseudo-science claims in criminal law trials that have out too many people in prison who don’t belong there, and many on death row, some of whom have already been executed for crimes they Did Not Commit.

The FBI admitted flawed hair compairson testimony was used to convict Willie Manning. In 1994, FBI “science” experts testified that the defendant’s hair matched hair found at the crime scene. A ballistics expert from the FBI, who also testified against Mr. Manning, argued that a tree in Manning’s mom’s yard was used as target practice, and that bullets found inside were fired from the same weapon used to kill the victims (even though the firearm was never found). The testimony was based on a microscopic comparison of tool marks on the bullets. Additionally, witness Earl Jones, who was serving jail time, said Manning confessed to killing the two students and co-conspiring with a second person.

Two years later, Manning was convicted in the murders of 90-year-old Alberta Jordan and Emmoline Jimmerson, who were killed in 1993. He subsequently received two more death penalty sentences, but was absolved of all charges in February 2015, after a key witness recanted his testimony and the police failed to turn over additional evidence.  Just hours before Willie Manning’s scheduled death on May 7, the execution was stayed by the Missippi Supreme Court. While an official reason for the stay was never provided, Manning’s defense attorneys are confident that FBI failures were responsible. Days before his execution for killing the college students, the FBI sent three letters to the district attorney’s office, admitting that the experts who testified against Manning presented flawed evidence.

Federal authorities are now conducting DNA tests of the physical evidence collected at the scene, but the FBI’s findings of flawed evidence in Manning’s case barely scratches the surface of a larger problem. Just last month, the FBI acknowledged its use of flawed forensic evidence to convict people over several decades – and that many of of the cases resulted in death sentences for the defendants. Specifically, comparisons of hair belonging to the defendant and hair found at respective crime scenes were scientifically erroneous. In 2012, the Bureau launched an investigation into the use of flawed hair analysis, the FBI found that hair matches were used in 2,500 cases. As of mid-April, the FBI reviewed 342 of those cases, and found that FBI forensic experts presented flawed evidence 257 trials. Robert Dunham, the executive director of DPIC, says the FBI has discovered 33 capital cases in which hair analysis was used.

Read the whole article here:
http://thinkprogress.org/justice/2015/05/06/3655660/one-inmate-four-death-penalty-sentences-exonerated-twice/

Wrongful Convictions Not Fixed – Innocent Defendants Executed

In 1997, an FBI Lab Tech, Fred Whitehurst, blew the whistle on shoddy work practices. As a consequence, the Justice Department promised extensive review and alteration of the processes that led to misconduct, and wrongful convictions of defendants in numerous cases. Even when the FBI knew their work had been shoddy and the wrong person convicted – in death penalty cases as well – they didn’t bother sending timely notifications to the prosecutors in those cases, and never notified defendants’ attorneys at all. And, sometimes when they did notify the prosecutors, they ignored it, and never told the defendants’ lawyers – even resulting in innocent men being put to death.

What is wrong with those prosecutors, and why are they not charged with causing the deaths, and long incarcerations, of innocent men and women?

Spencer S. Hsu wrote in the Washington Post July 16, 2014, that the Justice Department and FBI delayed notifying prosecutors in scores of death-row convictions that their cases might have relied on flawed FBI forensic work, the department’s Office of Inspector General reported Wednesday. In a scathing report that shed new light on one of the FBI lab’s worst modern scandals, the inspector general said the Justice Department didn’t properly review all of the cases by FBI examiner s whose work was known to be flawed.

The report said the FBI took more than five years to identify more than 60 death-row defendants whose cases had been handled by 13 lab examiners whose work had been criticized in a 1997 inspector-general investigation. As a result, state authorities could not consider whether to stay sentences, and three men were put to death. One Franconia man is found guilty in slaying of roommate to stay sentences, and three men were put to death. One of those defendants, who was executed in Texas in 1997, would not have been eligible for the death penalty without the FBI’s flawed work, the report said. “Failures of this nature undermine the integrity of the United States’ system of justice and the public’s

confidence in our system,” the 146-page report stated. The failure to admit errors at the time “also injured the reputation of the FBI and the Department.”

The report was requested by Rep. Frank R. Wolf (R-Va.) after The Washington Post reported in 2012 that Justice officials knew for years that flawed evidence and testimony might have led to the convictions of innocent people. The Post focused on the Texas case and three men in Washington, D.C., who were represented by the Public Defender Service and have been exonerated. Problems at the FBI lab first surfaced in the early 1990s, when scientist-turned-whistleblower Fred Whitehurst reported that sloppy work by examiners was producing unreliable forensic testimony. Justice officials launched a task force that was active from 1996 to 2004 to ensure that potentially exculpatory evidence involving criticized agents was turned over to defendants.

But The Post found that such notification rarely happened and that not all flawed cases were properly reviewed. Justice Department officials, responding to Wednesday’s report, said that they had been diligent in trying to protect defendants’ rights in undertaking a review of unprecedented size and complexity. Police investigate death near Howard University, but no crime is suspected. However, “with the benefit of hindsight, the Department agrees that certain aspects of the Task Force review could have been more efficient or effective,” Brette L. Steele, senior adviser on forensic science, wrote in a department memo included in the report. As of October, the 26 surviving death-row inmates whose cases were included in the review had all been notified that their convictions had been re-examined, Steele said.

The inspector general had recommended the notifications and retesting of evidence in 24 death-row cases in which the defendant was deceased. The inspector general’s office said the department should notify all 2,900 defendants whose cases were reviewed by the task force, starting with 402 defendants whose cases were so problematic that the task force obtained a fresh scientific review. Their names were made public Wednesday for the first time.

But none of those involved with this vile and inexcusable conduct will ever be prosecuted, because they’re The System. Disgraceful. Beware false conviction – they are rampant in state prosecutions.

Man Freed After Confessing To Killing Son During Interrogation

After years in prison, Adrian Thomas was found not guilty for the murder of his infant son. His story was told in Scenes of a Crime. In this encore broadcast, the film’s co-director explains the case.

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Here’s a link to the full article on NPR.

Department of Justice FINALLY Requires (Most) In-Custody Intgerrogations to be Recorded. Finally!

Finally the Department of Justice does the right thing and (sort of) requires agents to record all in-custody suspect interrogations.  There are still lots of absurd exceptions (only if the interrogation is in a “secured” police building — so if they’re in the car on the way, not obligations — I can see some unscrupulous agents exploiting this), and they only did this because, more often than not, it’s been turning out that jurors don’t believe police or agents when they claim a suspect said this or that, and when there was taping equipment available but the agents didn’t “bother to” record.

So, the bigger benefit really still goes to the government, but it will nevertheless help that certain subset of defendants who are amazed by what the agents’ reports claim they said in interrogation.  Better than nothing, yet sad that it could only come about because the government was losing cases, and respect, without it. Most of this is thanks to stupid, unrealistic TV cop shows, but, as a defense lawyer, I’ll take the gain wherever I can find it.  Justice will be better served. http://www.chicagotribune.com/news/sns-rt-us-usa-justice-record-20140522,0,899210.story

More on Robbie Tolan – Details of What Happened the Night the Police Shot Yet Another Unarmed Black Man

Turns out that, when a second cop on the scene “instructed” Tolan’s Mom, who was on her own porch, to stop yelling, “Why are you doing that to my son,” the police decided that was refusal to accept police instruction.  Laying aside the question of who made the police the arbiter of who could say what, the second officer on the scene, a sergeant, while Robbie was face down on his own front law, grabbed Mom and slammed her face first into the front door.

That’s when Robbie got to his knees and had the temerity to plead “Why you doing that to my Mom,” and so the sergeant, a command officer remember, shot him three times in the chest.  That is the WHOLE story.  Not good enough for an all-white Texas jury to convict the white cop, of course, but then to add insult to injury, the federal judge where Robbie’s civil suit was filed dismissed it without allowing a trial.

The United States Supreme Count unanimously (when was the last time you heard of them all voting unanimously?) reversed and sent the case back to give the Tolans their rightful day in court.

Read More Here

United States Fifth Circuit – Mostly Texas Judges, of Course – Take the Word of Police Automatically, According to the United States Supreme Court

It’s rare for the United States Supreme Court, with 5 ultra conservative justices, to ever side against police or prosecutors.  But some right-wing judges take that history as a license to go even further out from reality to help police to the detriment of regular citizens.

Finally, even our conservative Supreme Court had to say, “Stop!  You’ve gone too far.”  This Bellaire, Texas cop shoots an unarmed pro B-Ball player Robert Tolan three times in the chest for “moving” after he stops him in his own driveway.  (The cop saw the car speeding, typed in the incorrect license plate number and got a “stolen car” response — never double-checked, of course.)

Then this very dangerous cop gets acquitted of assault by a Texas jury, since jurors pretty much alwaysbelieve police only, and the Fifth Circuit Court of Appeals dismissed the civil suit Mr. Tolan later brought against his assailant.  The dismissal embraced only what the cop had claimed what happened, not what Plaintiff Tolan asserted.

Too far, Boys and Girls, for even the US Supreme Court.

Read More Here

Real Life Crime Labs Not At All Like TV

The crime lab procedural has been among the most popular genres at least since “CSI” debuted in 2000, and devotees of blood-spatter patterns and advanced DNA analysis have no shortage of programming to choose from. There’s “Person of Interest,” “The Good Wife,” “Blacklist,” “Castle,” and “The Mentalist.” All are in the top 20 best-rated shows on television. And let’s not forget “Bones,” “Dexter,” “CSI: Las Vegas,” “Cold Case Files,” “The Real NCIS,” and “Forensic Files.”  But you ought not believe any of the fancy (not to mention instantaneous) forensic “results” shown on these TV dramas.  Television writers give the public a perception of forensic science that is anything but accurate.  Sadly, the public believes it – and that includes jurors.  (Fairness Admission: I have used that very misperception to the great advantage of several clients at trial by pressing police witnesses to explain why they “didn’t bother” trying to get fingerprints from this or that piece of evidence, why they didn’t conduct various tests as seen on TV everyday — and the jurors frankly were very impressed each time.)

If only the country’s real-life crime labs were half as effective as those portrayed on TV, and if only there weren’t so many lying, cheating and corrupted lab “specialists” around the country being caught regularly for out-and-out falsification of lab “results” to shore up an otherwise weak prosecution case – whether the defendant is guilty or not.

Read more:  http://www.businessinsider.com/forensic-csi-crime-labs-disaster-2014-4#ixzz30U5qYEm6

Even a Misdemeanor Can Cause Real Problems

Many people think that a misdemeanor conviction is “no big thing.”  In truth, in the federal system, there are very few misdemeanor convictions, usually exclusively obtained through very diligent plea bargaining.  When facing serious felonies with all the potential collateral consequences (beyond prison even), getting a misdemeanor plea bargain is often the very best way out.  We’ve been able on occasion to negotiate misdemeanor pleas for our clients at Burdick Law, P.C. in federal criminal cases, but it is very rare.

One of the biggest problems is that some lawyers (mostly in state prosecutions) are willing – or even anxious – to press innocent clients to plead to “just a misdemeanor.”  The reasons vary from lazy lawyer; to inexperienced or frightened lawyer; to court-appointed lawyer with a zillion cases trying to curry favor with the local prosecutor’s office for the next five cases he or she has to negotiate.

But what a lot of lawyers either don’t know, or don’t bother telling their clients if they do know, is that there are serious consequences even to misdemeanor convictions. 

For example, Christian Watts made a bad decision in 2002, and he has been paying for it ever since. As a 31-year-old, Watts was working for a Las Vegas limousine service when he connected a friend with someone who had a supply of the illegal party drug MDMA, or ecstasy. Federal investigators who were tracking another drug dealer got wind of the deal, and charged him with felony possession. At the advice of his lawyers, he pleaded the conviction down to a misdemeanor, and served no jail time. But he says he still feels imprisoned by his conviction.