Twenty-six journalists from across the nation gathered at John Jay College of Criminal Justice on Jan. 31st and Feb 1st, 2011 for the 6th Annual Harry Frank Guggenheim Symposium on Crime in America to discuss the conference theme: “Law & Disorder: Facing the Legal and Economic Challenges to American Criminal Justice.”
The journalists were joined by criminal justice professionals and speakers including New York State Chief Judge Jonathan Lippman, Hon. Sue Bell Cobb, Chief Justice of the Alabama Supreme Court; Hon. Andre Davis, United States Court of Appeals for the Fourth Circuit; and Hon. Robert T. Russell, Associate Judge for Buffalo City Court and a pioneer of the nation’s Veterans Courts. They were joined by ACLU president Susan Herman; John T. Chisholm, District Attorney, Milwaukee County, Wisconsin; Daniel F. Conley, District Attorney, Suffolk County, Massachusetts; and George Gascon, newly appointed DA in San Francisco and the city’s former Police Chief.
Panels included:THE COURTS, PUBLIC SAFETY AND CIVIL LIBERTIES: CHALLENGES IN 2011, THE COURTS ON TRIAL: IS THE SYSTEM FAILING US?,TECHNO-CRIME FIGHTING: LAW ENFORCEMENT, CIVIL LIBERTIES, PUBLIC SAFETY AND THE WEB.
See the symposium agenda here.
Fellows ask colleagues follow-up questions in a closed forum.
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An increase in the use of ‘no-knock’ warrants around the country has alarmed civil liberties advocates.
On Nov. 17, 2007, Vergil Richardson was sitting at a table in the house he owns in the small northeast Texas town of Clarksville, playing dominoes with several relatives, including his half-brother Kevin Calloway, when the front door exploded inward and the living room was flooded with police.
"They just broke into the house,” Vergil recalled recently. “They had guns on us and threw me down on the floor.”
Vergil asked Red River County Sheriff Terry Reed, who was present at the raid―and who was standing alongside the county's elected prosecutor Val Varley, who was also wearing a flak jacket and carrying a large caliber rifle―to see a search warrant.
The sheriff pulled out a piece of paper, no larger than a Walmart receipt, flashed it toward Vergil's face, then swiftly tucked it back in his pocket.
Outside the home, Vergil's older brother, Mark was sitting in a car with a friend, talking. Looking out the window just before 10:30 that night, Mark saw the police coming. They swarmed past the car and up the walk, onto the porch of the house and then went through the door.
"They were dressed like a SWAT team” with black clothes and body armor, he recalled, and carried assault rifles and riot shields.
For some reason, Mark says, the cops didn't realize anyone was actually sitting in the car. His friend was scared and did not want to get out, but he convinced her to get out of the car with him. At that moment, an officer standing nearby yelled at them to get down on the ground.
Inside the house, Vergil was panicking. He remembered thinking, “what is this?”
It didn’t take long for the answer to surface. A half-hour after the raid began, Vergil Richardson, then 38, Mark Richardson, 40, and Kevin Calloway, then 25, were taken to jail, where each was charged with manufacture of a controlled substance, intent to deliver drugs and organized crime.
Six hours earlier, an undercover policeman had allegedly purchased $200 worth of marijuana from Calloway. With that information, police had prepared a search warrant for the house in Clarksville where, police said, they found small amounts of cocaine and marijuana in the course of the night raid.
Charges Denied
Vergil at the time was the head coach of a high school basketball team in Texarkana, and was no longer living at the Clarksville house. He and Mark vociferously denied any involvement with drugs. And Calloway, who was renting the place from Vergil while going to school in nearby Paris, Texas, backed them up.
Calloway told police that neither of his half-brothers had any idea that he kept drugs in a storage shed behind the house. But the charges against Vergil and Mark were not withdrawn.
It took “three years of hell,” as Vergil and Mark would later describe it, for the charges to be finally dismissed.
But in the process, the case exposed what their lawyer would claim was an abuse of police search and seizure powers, under the so-called “no-knock warrant” procedure.
No-knock warrants are supposed to be reserved for potentially volatile situations where the element of surprise is essential to containing that potential violence. But, the incidence of no-knock warrants, often executed by Special Weapons and Tactics (SWAT) teams or SWAT-style narcotics squads – and often with very dangerous, and sometimes deadly, results—has also risen. Since the early 1980s, for example, 40 innocent bystanders have been killed during warrant executions. And according to 2006 research from the CATO Institute, over the previous 15 years there were roughly 200 instances where the raiding party hit the wrong house.
That has paralleled the rise in SWAT raids nationwide. According to CATO Institute Media Fellow Radley Balko, the number of SWAT call-outs averaged 3,000 annual between the 1980s and 2005. Now the annual figure is roughly 50,000.
When are searches legal?
Attorney Mark Lesher, who represented Mark Richardson on the state criminal charges, now represents both brothers in a federal civil rights suit against members of the Clarksville Police Department, the Red River Sheriff's Office and County Attorney Val Varley.
In a recent interview with The Crime Report., he highlighted two serious problems with the 2007 raid at the Clarksville home.
First, and most striking, is that apparently neither the police nor the prosecutor had a valid search warrant at the time of the raid. According to court filings, the warrant was not issued until nearly 20 minutes after the raid began – which, he said, would explain why no one could produce a valid warrant when Vergil asked to see one.
Lesher said searching the house without a warrant was inexcusable. "You have the county attorney...the sheriff, the police chief" all present at the house, he said. "All three of the top policy-makers for law enforcement in the county are at that house, at that time. All three of them should (have known) that you need to show a search warrant when you get there."
Prosecutor Varley did not respond to a request for an interview for this story.
Equally troubling, said Lesher, was that even if the warrant had been issued in a timely manner, it was still "defective as a matter of law," he said.
[ED NOTE: for details of the warrants issued in the Clarksville raid, please click here and here.]
Complicated Law
"The area of search-and-seizure [law] is complicated, but you have to be able to specify articulable facts, from credible folks who are giving reliable information in order to legally justify the search,” Lesher continued, adding that in this case, the earlier pot buy from Calloway had not occurred at the Clarksville house, nor was there any information – credible or otherwise – to suggest that there were additional drugs to be found at the house, or that Calloway was a violent person.
Nonetheless, Lesher says, the county's justice-of-the-peace signed off on a no-knock warrant, allowing the SWAT-style, heavily-armed coterie of local police to burst into the house without announcing their presence.
Similar questions have arisen in connection with other search-and-seizure raids elsewhere in the country―sometimes with deadly results. In November 2006, an Atlanta Police narcotics squad executing a no-knock warrant shot and killed 88-year-old Kathryn Johnston in her home.
Johnston, startled by the unannounced entry, had armed herself with a revolver, shooting several of the officers before she was shot in turn. (Each of the officers recovered from their injuries.)
Police claimed that that a confidential informant told them a drug dealer lived at the house. But the informant later came forward to say the police version of the story wasn't true, and added that they had only contacted him after the shooting in order to justify their botched raid. The city of Atlanta this summer settled a federal lawsuit with Johnston's family for $4.9 million.
More recently, in July 2008, Prince Georges County, Md., police shot and killed two family dogs inside the home of Berwyn Heights, Md., Mayor Cheye Calvo and his wife Trinity Tomsic, during a no-knock raid at the couple's home. Police thought the couple had someone send 32-pounds of marijuana to their home through the mail.
As it turned out, a delivery person in Arizona was responsible for the smuggling operation, which mailed pot to random addresses in Maryland to be picked up by members of the drug-dealing conspiracy.
Given the hit-and-miss success of SWAT-executed no-knock raids, the Cato Institute’s Balko, who is also a senior editor at Reason, a libertarian leaning monthly magazine, said it was lucky that no one inside the Clarksville home the night of the raid was killed,
"Imagine if they'd had a gun in the house for protection and someone was in the back of the house, heard the commotion, [didn't know what was going on] and came out with a gun," he says. "He'd be dead."
The Rubber-Stamp Warrant
Unfortunately, says Lesher, the Richardson case was not the first time he's seen defective no-knock warrants in Red River County. At present, he has "about 10-12 other search warrant affidavits that are" equally as defective as the one in the Richardson case. It happens "all the time," he says. "It's called rubber-stamp."
Despite the serious legal questions surrounding the raid, it took nearly three years for the charges against Vergil and Mark Richardson to be dismissed. Lesher was successful in having Varley recused from trying the case, but even after special appointed prosecutors from the Texas Office of Attorney General recommended that the charges against the brothers be dropped, District Judge John Miller refused to do so.
Lesher claims that Miller tried to make a deal with the attorneys: if they would drop the federal civil rights suit that Lesher had filed against the county and city officials―in which the brothers are seeking at least $2 million in compensation―Miller would then dismiss the state charges. The lawyers refused and Miller set a trial date. Miller did not respond to a request for an interview for this story.
It wasn't until this October that Lesher and fellow attorney Clyde Lee (who was handling Vergil's criminal case) were successful in having the charges dismissed. The attorneys had Judge Miller. The new judge, Robert Mohoney, swiftly approved the dismissals.
It was too late to save Vergil's job, however. A week after the charges made local headlines, he says, his school district fired him. Since then he hasn't been able to find a job.
"He's been blackballed," Lesher says. "Who's going to have somebody accused of dealing dope [be] a coach for kids?"
All things considered, says Vergil, his half-brother Calloway got off fairly easy. While he and Mark were still trying to have the charges against them dismissed, Calloway was sentenced to 10 years probation. He went to drug rehab and has so far been successful on probation.
The experience has taken a psychological toll as well. Mark says he's nervous ever time he sees a cop in his rearview mirror, and Vergil says he's been battling with bouts of depression. Still, the brothers are adamant about pressing forward with their civil rights suit, hoping to stop the local law enforcers from doing the same thing to others.
Vergil says his half-brother Calloway’s involvement with drugs was wrong, “but what they did was wrong also.”
When innocent people become the victims of over-zealous law enforcement, he declares, “How can [the authorities responsible] not face the consequences?”
Jordan Smith is a staff writer for The Austin Chronicle, and a winner of the 2010 John Jay/HF Guggenheim Award for Excellence in Criminal Justice Journalism.
Read full entry »Nearly 150 years after he died, the abolitionist George Boyer Vashon was admitted to the Pennsylvania bar this week, reports the Philadelphia Inquirer. He was denied a chance to practice law in Pennsylvania in 1847, and the state Supreme Court took the unprecedented step to admit Vashon posthumously "to right an ancient wrong," said state Chief Justice Ronald D. Castille. Born in Carlisle in 1824, Vashon was the first black graduate of Oberlin College in Ohio and the first black lawyer licensed in New York state.
He left Pennsylvania after he was denied the ability to practice law there. He worked as a lawyer in New York, taught children in Haiti, and won Reconstruction-era professorships at Howard University in Washington and Alcorn State University in Mississippi. In 1868, he was admitted to practice before the U.S. Supreme Court - but denied again in Allegheny County when he reapplied that year. Throughout his life, he kept up a family tradition of abolitionist activities and fighting for the rights of blacks.
Read full entry »Michael Anthony Green of Texas, who spent 27 years in prison for a crime he didn't commit, wants to become a paralegal to help other inmates he says are wrongfully imprisoned, says the Houston Chronicle. "Mike could really change the world," says Bob Wicoff, the lawyer who helped him get out of prison and then hired him to write briefs and interview inmates. "His case could be an example of the changes we need to make."
In 1983, Green was sentenced to 75 years in prison for the rape of a Houston woman because of faulty eyewitness identification. DNA evidence has cleared Green from any involvement in the case. He was freed July 30 but still has to be declared actually innocent. If he is, Green stands to receive more than $2 million from the state. Nonetheless, he plans to continue to work. "That's how I'm going to live. Regardless of the compensation money, I'm still going to work," he said. Clay Graham, a Dallas defense attorney who has worked with the Innocence Project of Texas to help exonerees adjust to being free, said it was unusual for Green to have a job, especially only weeks after he was released. Other convicts who are released, especially when paroled, have support systems for counseling, jobs, and supervision. The innocent who are freed also are free of any further obligations, leaving them in a state of shock and disbelief, Graham said.
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A reporter looks at day-to-day practices in American courtrooms, and finds them wanting.
Last year in Wilkes-Barre, Pa., two juvenile judges were indicted on charges of taking millions of dollars in kickbacks in exchange for sending children to a private prison. But this shouldn’t have come as a surprise to anyone who had studied the daily procedures in their courtrooms.
For years, child advocates had noticed that the judges didn’t read kids their rights, and that they didn’t assign attorneys to children who arguably needed a lawyer the most. The judges openly held sentencing hearings in which kids had no advocates and that lasted under two minutes; and they gave outrageous sentences, such as wilderness camp to a girl who had lampooned her principal on her My Space page.
What was astounding was that the Wilkes-Barre court had operated this way for so long without protest from attorneys, and without media scrutiny. The likely reason: the court procedures over time had come to seem “ordinary.”
The ordinary may not sound or look like news at first. But there are places in America where the ordinary has become so degraded that it is in fact extraordinary, or ends up with extraordinarily catastrophic consequences, as in Wilkes-Barre.
There are times when the “ordinary” can jump out at you like a calling. This is what happened to me in 2001. The Nation magazine had given me a year to write about civil rights, and so I visited many courts. In a courtroom in Greene County, Georgia, for example, I watched a public defender plead 48 people guilty in two days. Many of his clients never had a substantive conversation with him about the facts of their cases. On the day of their court hearing, however, he would spend a few minutes telling the defendants about the deal offered by the prosecutor.
Then, another lawyer, who knew even less about these people or their situations, would stand beside them while they pled guilty before the judge. As I looked on in court, several cases broke down with people crying, saying that they didn’t understand what was happening to them. One woman was saying over and over again, “I didn’t know I was going to jail.”
Afterwards, the prosecutor, defense attorneys, and the judge all told me they saw nothing wrong with the process. I found out later that that year the public defender represented about twice as many people as the American Bar Association (ABA) recommends as the absolute maximum that an attorney can handle. But the people who shaped justice didn’t seem taxed. “We have successfully done a 10-page calendar in one day,” the public defender boasted on that first day I saw him. He said it proudly as if speed equaled success. When I asked him if he felt people were treated fairly he said something I would never forget: “Nobody could say that they didn’t have their day in court.”
Routine Rules
What fascinated me then and now is how smart, committed, hard-working professionals can routinely act in ways that fall short of what people in their positions are supposed to be doing. And still, they did not even realize that anything was missing.
Many did not realize that their behavior had devastating consequences for ordinary peoples’ lives. Their mistakes had become so routine that they could no longer see their role in them.
This is ordinary injustice.
There was something else I noticed in that Georgia courtroom. As I watched the cases proceed, it became increasingly harder to hear what was going on. The prosecutor and defense attorney huddled around the bench, speaking softly to the judge. It looked like they were all on the same team – rather than opposing advocates duking it out before a neutral arbiter. Steve Bright, of the Southern Center for Human Rights in Atlanta, asked the judge to speak up, and the judge installed a microphone. But the next day the microphone was gone. I went back and visited this court (with different sitting judges) for the next five years. There was never another microphone. And there was always a huddle.
That huddle made clear to me that the problem is not just with the courts, but how the media reports on them. Too often the press fails to examine court procedures that seem too common to address on the front pages. Then, when problems do come to light it focuses on one person designated as “a “bad apple,” if you will. In Wilkes-Barre, two judges took the fall, but there was a legal community that kept those judges in place and turned a blind eye to the daily flouting of defendants’ rights. The community continued to let children go to prison for crimes that didn’t merit such punishment, and never said a word that made a difference until outside investigators figured it out. The lesson here is that journalists should take the time to report on the ordinary.
How to Avoid the “Bad Apple” Fallacy
I published a book last year (Ordinary Injustice: How America Holds Court, Metropolitan Books: 2009) that describes a journey through American courtrooms where such “ordinary” injustice is allowed to continue until it becomes impossible to ignore. Working on the book has led me to set out three basic steps reporters need to follow in order to avoid falling into the fallacy of the bad apple.
First, you need a basic sense of what the problem is. You will usually find this by talking to the victims or defendants. In Greene County, GA, the people I met in the hallways who complained their attorney wouldn’t meet with them gave me material for probing further. One woman who had been arrested for cocaine disclosed she hired a lawyer after a bad experience with the public defender following an earlier drug arrest.
Second, it’s important to look at data. The total number of cases represented by the Greene County public defender stood out after comparing it with the ABA’s maximum recommended number of cases for an attorney. You might discover a pattern in a judge who gives outrageous bails for minor crimes, or a prosecutor who takes very few cases and screens out the rest for no apparent reason. Sometimes no data exist. It is your job first, to find this pattern. Once you have this, you need your stories to prove the pattern.
The third thing—the most important and most daunting part—is to get down to basics. To concentrate on the ordinary. To go as low as you can go in the food chain. In the case of courts, it’s important to talk to the people who play a role in the system’s inertia: judges, prosecutors, defense attorneys, court clerks, county officials and even the guard who sits in the hallway and knows better than anyone how everything works. You are looking to see, in their own words, how injustice works. They are your best sources. Because so often they don’t know any other way than to do justice or injustice, for that matter. And they will tell you—point blank—their intentions.
Hard questioning is important. Ask the people who work in the system how they spend their days, what time they go to work, where they sit, how open the boss’s office door is, who works for whom, and what various underlings do. Then ask the case-specific questions: why did you decide to prosecute or not prosecute? Why did you decide not to talk to witnesses? How often do you behave this way?
Pay Attention to the Ordinary
In other words, you’re asking them to tell you about the “ordinary.” Spend time with them. You should be calling them so many times that when they pick up the phone they will wonder whether it is you or a significant other. And always tell the truth about what you are doing. Your honesty will be reflected back to you.
In one place I studied, Quitman County, Mississippi, there was no assembly line in court, but rather a court clerk with a list of cases in which people had been arrested but never brought to a grand jury. I took the list of cases and used it as a road map. I met one woman who had been beaten up by her boyfriend with a tire iron, There was plenty of evidence of aggravated assault. There was a police report documenting what happened. A hospital report showed she was admitted for two days because of severe bruising to her back. And there were pictures of bloody bruises on her face. Plus, her daughter and niece had been watching the beatings from inside a locked car. This woman never went back to live with her boyfriend. She moved in with her mother the morning after the assault.
Why wasn’t her case prosecuted? I interviewed the players and couldn’t figure it out. Until the court clerk examined the records and found that there hadn’t been a domestic violence case prosecuted in 21 years.
I also learned that the district attorney prosecuted only 24 percent to 35 percent of the cases that by law he had to present to grand jury. Now I was ready to figure why this was happening and to talk to all the players. I went to the prosecutor and told him I was writing a book about how courts do and don’t work, and that I was interested in the issue of prosecutorial discretion. And what I learned from talking to him was that he would often thoroughly investigate and prosecute cases that he thought he could win. He would go whole hog for a big murder case that would make the front pages.
But in cases where no one seemed to be watching, he or his investigators could simply put them aside.
Lack of Investigation
In fact, the prosecutor often had no idea what he was passing on. Instead he used an investigator to screen cases. And this investigator often didn’t investigate or communicate with police. And since prosecutors have carte blanche to decide what to investigate, no one checked that the decisions were good ones. And entire categories of cases would disappear.
Leading scholars agree that courts are the most unexamined public institution in America. No one keeps track of what kinds of cases go and don’t go to court. We have no idea how many cases are being pled, what kinds of crimes are not being prosecuted and for what reasons, whether people are being forced to plead guilty without lawyers, or are even appointed lawyers.
We have no idea how much money is spent on indigent defense on a per-case basis across the country. Yet communities know how much they spend per pupil, and what that investment yields in terms of test scores, teacher-student ratios, and graduation rates. Reliable data just simply do not exist on how much we invest in protecting constitutional rights in the legal system.
Reporters can help answer questions like how many cases get put aside for what reasons, how many people spend in jail before pleading guilty, how high bails are for what crimes, and the costs of holding people in jail, not only to the county but in terms of collateral consequences, such as loss of homes and jobs, welfare expenditures.
Jeremy Travis, president of John Jay College of Criminal Justice, writes that 47 million people have criminal records – approximately 25 percent of the nation’s adults. Yet a public institution that affects one quarter of the nation’s adults goes completely unmonitored and is unaccountable. We don’t leave other public services unexamined--our schools, our water supply, our hospitals. Why do we turn our eyes away from the ordinary business of the courts? We must start paying attention to the ordinary, because the ordinary is where it all begins.
Amy Bach, a journalist and lawyer, is the author of Ordinary Injustice: How America Holds Court (Metropolitan Books: 2009) which received the Green Bag law review award for exemplary legal writing. This essay was adapted from a talk she delivered on Feb. 15, 2010, as part of the Law, Politics, and Media Lecture Series at the S.I. Newhouse School of Public Communications, Syracuse University.
Read full entry »R. Allen Stanford has been in a Texas jail since he was charged last June with conspiracy, securities fraud and money laundering for running what prosecutors say was a $7 billion Ponzi scheme. When the Securities and Exchange Commission obtained an order freezing the company’s assets, Stanford could not afford to pay a defense attorney, so the federal public defender’s office has been representing him.
That may change soon, Wayne State University law Prof. Peter Henning writes in the New York Times. Federal Judge David Hittner in Houston ruled that under a company insurance policy Lloyd's of London is responsible for paying nearly $100 million for the for the defense of Stanford and other officers. Don’t be surprised if the legal bills exceed even that seemingly generous pool of money. White-collar crime prosecutions and related civil actions are enormously expensive to defend, and defense costs can reach the tens of millions of dollars fairly quickly. While it was almost unknown for leading Wall Street law firms to do criminal work 30 years ago, white-collar defense is now a major source of fees and one that appears to be largely immune to the recession that has hit the firms over the past two years.
Read full entry »An Omaha case in which a down-on-his-luck attorney agreed to wear a wire for the U.S. attorney’s office to get incriminating statements during a jail meeting with a local inmate raises "one huge legal ethics question," Ashby Jones writes in the Wall Street Journal's Law Blog. Defense attorneys are moving to suppress evidence collected by the lawyer, Terry Haddock. The inmate, Shannon Williams, is the alleged ringleader of a big marijuana conspiracy.
The case, first detailed by the Omaha World-Herald, is reverberating in legal circles. Federal prosecutors have not disclosed whether Haddock is being paid for his work as an informant. While the authorities are defending their actions, Jones calls the decision "legal but unethical." One legal expert called the use of a lawyer as an informant against a client "shocking."
Read full entry »Jeff Blackburn, an attorney who has helped spring dozens of Texans from prison for crimes they did not commit, is under scrutiny for privately profiting off some of the exonerated by claiming a portion of the state restitution paid to them, reports the Dallas Morning News. Blackburn is chief counsel of the nonprofit Innocence Project of Texas. Accepting fees from exonerees for services not directly connected to his position is not illegal. But a public watchdog group says it appears improper, and a state legislator says he may file a bill to prohibit such profits.
Blackburn is being sued by one exoneree who says he shouldn't have to pay. Blackburn declined to discuss his work other than to say he was "shocked" at the lawsuit filed in state court by Steven Charles Phillips, a Dallas County man wrongly imprisoned for 25 years for a string of sex crimes. Phillips' lawsuit alleges that Blackburn used his position with the Innocence Project to hand-pick cases that would represent the greatest potential compensation funds. The lawsuit says he then referred the exonerated men to a lawyer colleague, with whom he divided what the lawsuit estimates to be about $8 million for fees from 13 clients exonerated in recent years.
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Below are copies of three chapters on covering criminal justice, a special report by Criminal Justice Journalists and the John Jay Center on Media, Crime and Justice:
Part One: Covering Prisons and Jails
Part Three: Covering Community Corrections, Probation and Beyond
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A Los Angeles-based law organization Wednesday launched a program to provide free legal assistance to veterans who hit bureaucratic roadblocks when filing claims for federal medical and mental health benefits, reports the Los Angeles Times. Public Counsel, a pro bono law firm, will offer the free service throughout Southern California and, in partnership with other volunteer attorneys, in more than 25 states.
Public Counsel President Hernan D. Vera said the effort would help the 1.7 million troops deployed to Afghanistan and Iran, many of whom have been denied benefits for post-traumatic stress disorder, depression, traumatic brain injury and other combat-related injuries. The program, called the Center for Veterans Advancement, will provide free legal representation in court as well as for administrative proceedings with the Department of Veterans Affairs, the Social Security Administration, all branches of the military and with other local and national agencies.
Read full entry »As of July 1
Office Phone: (207) 780-4409
Professor Tuerkheimer focuses her scholarship on the intersection of criminal law and the lives of women and children. As an ADA, she prosecuted child abuse, sex crimes, and internet crimes and conducted trainings for prosecutors, law enforcement officers, medical personnel and child protective workers.
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Mistaken diagnoses of Shaken Baby Syndrome may have sent thousands of innocent people to prison, according to a new study
Exclusive to The Crime Report
In October, 1995, when police charged Audrey Edmunds, a Waunakee, Wis. day care provider, with the murder of a seven-month-old girl who had been left in her care, prosecutors said she had shaken the baby to death.
A medical expert testified at trial that the child had suffered critical injuries that were the hallmarks of Shaken Baby Syndrome. A jury convicted Edmunds and she was sentenced to 18 years in prison.
At the time the case was unremarkable—one of thousands of successful prosecutions during the past 30 years of parents and other care-givers who have been found guilty of charges ranging from manslaughter to murder, based on findings of what is known as the triad—retinal hemorrhage, bleeding in the brain and brain swelling. Shaken Baby Syndrome (SBS) is one of the few instances in the criminal justice system where the diagnosis is the basis for prosecution.
Last year, however, in a remarkable turnaround, one of the physicians that testified against Edmunds told a judge that he was no longer confident that the injuries were inflicted by Edmunds and that they could have occurred many hours before the baby was dropped off.
Edmunds was granted a new trial by a judge who ruled that the testimony “shows that there has been a shift in mainstream medical opinion.” In effect, the scientific foundation of the syndrome had been undermined to the extent that a new jury would probably have a reasonable doubt about Edmunds’ guilt.
The case was dropped and Edmunds was freed.
That was good news for Edmunds—whose freedom is the result of work done by the Wisconsin Innocence Project—but what about the thousands of others convicted during the past two decades as a result of the same medical testimony that put Edmunds behind bars?
A soon-to-be-published analysis of shaken baby cases and recent developments in the medical community by University of Maine School of Law professor Deborah Tuerkheimer presents persuasive evidence and raises troubling questions about whether many of these convictions were of innocent people who were found guilty on the basis of faulty science. The analysis is scheduled to be published in September by Washington University Law Review.
Tuerkheimer, who is joining the DePaul University College of Law faculty on July 1, points to new research in the United States and abroad showing that a variety of circumstances, including something as seemingly innocuous as falls from a short height, can cause fatal head injuries that appear very similar to injuries routinely diagnosed as SBS.
If research shows that the physical conditions that once automatically resulted in a prosecution could actually have been the result of an accident, the implications are enormous.
“Given the scientific developments…we may surmise that a sizeable portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent,” Tuerkheimer writes, adding that a far greater number of defendants among the group were likely convicted on legally insufficient evidence.
“While we cannot know how many convictions are ‘unsafe’ without systematic case review, a comparison of the problematic category of SBS convictions to DNA and other mass exonerations to date reveals that this injustice is commensurate with any yet seen in the criminal justice arena,” Tuerkheimer writes.
Keith Findley, a clinical professor of law and co-director of the Wisconsin Innocence Project, who headed Audrey Edmunds legal team, said, “The system is sending people to prison based on findings of beyond a reasonable doubt when in many of the cases the only evidence is medical evidence on which many medical experts…have a substantial doubt.”
He added, “This is not about being opposed to child abuse prosecutions. No critic of SBS theory wants anyone to get away with child abuse, but when the diagnosis becomes the entire basis for the prosecution, that’s problematic.”
In a 1974 medical journal article, American pediatric radiologist John Caffey described what would become SBS, saying, "Our evidence, both direct and circumstantial, indicates that manual whiplash shaking of infants is a common primary type of trauma in the so-called battered infant syndrome." The first appeal of an SBS-related criminal conviction was reported in 1984, according to Tuerkheimer's research.
During the next five years, there were less than two reported appellate decisions per year. While counting reported appellate decisions is a decided undercount since the majority of convictions do not result in such rulings, Tuerkheimer notes that beginning in 1990, the number of appeals grew rapidly. There were 74 published appellate decisions from 1990 to 1994; 160 from 1995 to 1999; and 315 from 2000 to 2004. And the upward trend is continuing: the first half of the current five year period—from 2005 to June 20, 2008 shows 259 opinions. Approximately 1,500 babies are diagnosed with SBS each year, but no information is collected to analyze how many of these cases result in criminal prosecutions, and of those how many prosecutions are based solely on the SBS triad.
Questions about the SBS diagnosis have emerged over the past two decades, but the critical debunking of the theory began in earnest following the 1997 prosecution of Louise Woodward, a 19-year-old British au pair. Woodward was charged with the murder of eight-month-old Matthew Eappen while he was in her care in his home in Newton, Mass. Dubbed the "Nanny Trial," the case was the subject of intense media scrutiny in the U.S. and the United Kingdom.
The prosecution presented testimony that the boy's injuries were the result of violent shaking and his head hitting a hard surface. Defense experts testified the boy's injuries could have occurred days earlier. Woodward was convicted of second degree murder, but the judge later reduced the charge to involuntary manslaughter, noting the possibility of another cause for the SBS symptoms.
Wisconsin law student Molly Gena, who was part of the Edmunds defense team, wrote an article for the Wisconsin Law Review in 2007, noting that “there is no consensus among medical professionals as to whether the symptoms that have traditionally been attributed to SBS are necessarily indicative of intentional shaking.”
Earlier this year, for example, two British pathologists, in a study published in the Journal of Pediatric Developmental Pathology, found that SBS symptoms can be found in babies before they are taken home from the hospital for the very first time. The Daily Telegraph in London quoted the pathologists as reporting that the symptoms can occur without violent shaking.
Dr. Irene Scheimberg told the newspaper, “When there is no evidence of physical abuse, apart from the hemorrhaging, we may be sending to jail parents who lost their children through no fault of their own.”
Closer to home, Dr. Bruce Gross, a Fellow of the American College of Forensic Examiners, writing earlier this year in The Forensic Examiner, noted that studies have called into question the SBS triad as the result of only violent shaking. “The prevailing notion is that the injuries ‘characteristic’ of SBS are equivalent to those seen in a 35 mph automobile accident in which the infant victim was unrestrained, or a fall from a two –story building. Yet, research (including biomechanical analysis) has shown that, although fortunately not the norm, infants and toddlers can and do die from falls as short as 1-4 feet.”
Gross added, “In brief, biomechanical research suggests that basing the diagnosis of SBS only on the presence of the triad of symptoms lacks scientific certainty.”
Tuerkheimer writes that despite the potential for a large number of wrongful convictions, the United States criminal justice system “has yet to respond to new scientific realities.” Investigations of past SBS-based prosecutions have been undertaken in both the United Kingdom and Canada. “When viewed in global perspective, our continued adherence to a prosecution template that rests on discredited science is particularly jarring,” Tuerkheimer writes.
Findley, of the Wisconsin Innocence Project, said that in the wake of the Edmunds case, he has been inundated by requests from scores of defense attorneys for information about the case. “I am hearing anecdotally that defense lawyers are getting acquittals or cases are being dropped once they bring in evidence calling SBS into question,” he said.
Indeed, earlier this year, a jury in Iroquois County, Illinois, acquitted day care operator Connie Rieken of first degree murder in the 2005 death of a six-month-old boy who had been left in her care.
Defense attorneys Kenneth Leshen and Scott Sliwinski presented testimony from experts that suggested the baby’s injuries could have been the result of being dropped by his father days earlier.
One of the prosecution’s chief witnesses, Dr. Jill Glick, of the University of Chicago, testified that the baby was the victim of violent shaking, basing her diagnosis on the classic SBS triad of symptoms.
However, Rieken denied shaking the baby and there was no testimony from anyone that she had abused the baby in any way, according to Sliwinski.
The jury acquitted Rieken after about three hours of deliberation.
In her article, Tuerkheimer calls for a comprehensive inquiry, perhaps by the National Academy of Sciences, which recently issued a broad criticism of forensic science in the courts.
“SBS from inception to current iteration is fully embedded in the domain of the law,” Tuerkheimer writes. “This reality creates a special kind of urgency: around the country, murder convictions are resulting weekly from evidence that is a source of significant scientific controversy…To date our system has failed.”
Maurice Possley is a Pulitzer-Prize winning journalist and author who left the Chicago Tribune in 2008. He was a visiting lecturer at the University of Michigan Law School in 2009 and in the fall will begin work at the Northern California Innocence Project at Santa Clara University School of Law.
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Across Georgia, poor people accused of crimes are being abandoned by their lawyers because there is no money to pay their legal fees, reports the Atlanta Journal-Constitution. There are 10 death-penalty cases proceeding to trial with $1.1 million in expected billings. But there is no money to pay for those cases, either.
The Georgia Public Defender Standards Council’s main problem is its inability to pay bills for “conflict” cases. These are multi-defendant cases in which a state-salaried public defender can represent only one person because of conflict-of-interest rules. Private attorneys are hired to represent the co-defendants. Many bills from these cases, which number in the thousands statewide, have not been paid because of budget shortfalls. In response, exasperated lawyers are asking to withdraw from cases, and judges are letting them do it. Making matters worse, no one is telling the council about these defendants who are now lawyerless.
Read full entry »Houston’s most recent inmate exonerated by DNA evidence may have spent an extra year in prison because of his attorney’s slow work, says the Houston Chronicle. Judges hope to eliminate such scenarios through a plan to restrict appointments to cases involving post-conviction DNA testing to a small pool of experienced lawyers. A 2001 law allowing convicts to request DNA tests has been the key to freedom for dozens in Texas, but judges and lawyers say such cases can suffer from a lack of attention and experience.
Judge Randy Roll considered a 28-year-old case against a defendant seeking DNA tests on evidence that was collected but never analyzed, evidence that police and county officials years ago reported had been lost or destroyed. New lawyers found what others could not: three hairs from the victim’s clothes that may resolve questions about Donald R. Burke’s 1981 rape conviction. The case prompted Roll to ask his fellow judges to change the system for appointing lawyers to defendants seeking post-conviction DNA testing to ensure that the cases go to people with knowledge of evidence storage and DNA. “It upset me that there could be a 30-year-old case out there with evidence that no one knew how to find,” said Roll, elected to his first term last November. “It became clear to me that we cannot just name lawyers to these cases ad hoc, but that we need experts doing this.” Harris County’s 22 criminal district judges have approved a plan to limit the lawyers assigned to cases in which defendants are seeking post-conviction DNA testing to a selected group with experience in the area.
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Jack King, media contact (ext. 228)
jack@nacdl.org
NACDL is the largest national association of criminal defense lawyers. The group favors an anticrime policy that focuses on “the social and economic benefits of crime prevention -- through education, economic opportunity, and rehabilitation of former offenders.” It adds, “We need to eschew such simplistic, expensive, and ineffective ‘solutions’ as inflexible mandatory sentencing, undue restriction of meritorious appeals [and] punishment of children as adults…” The group can put journalists in touch with criminal defense attorneys nationwide through its state and local affiliates.
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