Post Conviction 2009 : Luncheon Address

Uploaded by TheNFSTC on 02.10.2012

[ Music ]
>> I hope I don't give you indigestion but I'll talk quickly.
Thanks very much to John for that generous introduction
and to David Hagey [assumed spelling] and everybody in the Conference Planning Committee
for putting this together it's extraordinarily impressive.
And what I thought I would try to do today is really go back to what we heard on Tuesday
because I thought the President of the United States really presented us with a challenge
and I'll just repeat what he said but you all heard it.
What the sidics [assumed spelling] fail to understand is
that the ground has shifted beneath them, that the stale political arguments
that have consumed us for so long no longer apply.
The question we ask today is not whether our government is too big
or too small but whether it works.
Where the answer is yes we intend to move forward
where the answer is no programs will end.
And those of us who manage the public's dollars will be held to account to spend wisely,
reform bad habits and do our business in the light of day
because only then can we restore the vital trust between a people and their government.
And I think that just applies to all of us in the criminal justice community.
[applause] And I think what's marked this movement and I'm looking around the room
and there are many of us here that have been involved in certainly the transfer
of DNA technology from medical and research uses to the forensic arena since 1988,
'87 my partner Peter Newfeld and I were involved in this and many people in this room
on all sides of the isle whether they were prosecutors
or judges have been with us on that journey.
And I think that in the end certainly it's the philosophy of the Innocence Projects
that we have shared goals that's to protect the innocent, to enhance capability
of law enforcement to catch the guilty and to take advantage of this learning moment
of these DNA exonerations as we identify the causes and we create remedies.
These are all win, win propositions public safety matters whether it be eye witness
misidentification, unreliable or misapplied forensic science, false confessions,
jailhouse snitches, attorney misconduct or the most difficult problem of all race.
Now, just in the spirit of getting past all arguments I just want to share something
with you personally because it shows anything can happen.
Peter Newfeld and I litigated a case, I think, for about close to a year
in Federal Court before Judge Jim Carr [assumed spelling] against Jim Willy [assumed spelling]
and Jim Willy as many of you remember was the Assistant United States Attorney
who really was the point person for the FBI and the Federal Government when it came
to litigating issues concerning the reliability of DNA testing systems,
and we really had a really intense litigation.
But I'm proud to say that Jim is my friend and Jim now works for the Baker Hostetler firm
in Cleveland and he has helped recently on a matter that, I think,
just exemplifies everything about this movement.
Michael Green [assumed spelling] was a young man who worked
in the Cleveland Clinic in downtown Cleveland.
He worked in the kitchen when a young woman who was a nurse
from West Virginia was getting cancer treatment, was sexually assaulted by somebody --
is this fading here -- was -= can you hear me in the back?
Oh, there you go.
This young woman was sexually assaulted by somebody who called themself Tony
and it was plainly an inside job.
So when the police and the Cleveland Clinic police began investigating this they looked
for the last guy that was let go and Michael Green had been let go from the kitchen
because he had brought a friend in there to work while he was working
and his name was Anthony Michael Green even though he was known as Michael.
So this immediately made him subject of suspicion, photographs were shown to this victim
with his picture in it, some things happened there
that I'm sure aren't very good, I know aren't very good.
The police officer said that he didn't -- he had an alibi that he was with his family
in the neighborhood but the police officer said that he got drunk and passed out.
He went to trial he was convicted.
he went before the parole boards and they said you can get out early
if you admit guilt he refused to admit guilt.
We came to get access to the evidence in a DNA test, the DNA test proved him
to be innocent he was exonerated, he left jail, and for the next year he had a very tough time.
And then Connie Shultz [assumed spelling] who was the Pulitzer Prize winning journalist
at the Cleveland Plain Dealer, who incidentally is married to the Senator there now,
wrote a story called The Burden of Innocence
where she put Michael's picture on the front page of the paper.
And after she did that believe it or not the real assailant saw that picture,
read that story, consulted with a priest, came forward and admitted he committed the crime.
Which was an extraordinary moment and then when he was sentenced the first person
in the court room to ask that he get the minimum sentence
for having come forward for this was Michael Green.
Subsequently a civil suit was filed because the serology evidence in the case
and the hair comparison was not reliably presented
by the Cleveland Criminalist Joseph Serawick [assumed spelling].
In fact he even gave a number on a hair, I mean it was 1 and something
like 40,000, gave numbers on hairs.
And, of course, the serology statistics were all wrong.
A civil suit was filed and as Serawick was disposed and evidence was collected
from the laboratory in other cases it became clear
that there were extremely serious problems.
So on the eve of the civil trial we were able to get a settlement of this case
and Jim Willy was very helpful in that because what we were able
to do Michael Green gave $500,000 out of what he would have received in his total settlement
with the Cleveland Clinic and the City of Cleveland to conduct an audit of 16 years worth
of Joseph Serawick cases and Jim Willy ran that audit, and some good things have come out of it
and we've learned something from it.
So that's the case and Jim's helped on lots of other things.
Woody Clark, I think, almost from the very beginning of this DNA era Woody
and Rod Carmen have been the designated prosecutors in many of these instances
who would be talking about the DNA technology and Woody was on the DNA Commission that was set
up on the future of DNA evidence.
And, you know, we were all able to work together
and particularly the training materials what every law enforcement officer ought to know
about DNA testing and how that was distributed and many of the issues that rose
when we were discussing category 2 cases this morning
about how you identify what is probative evidence.
How you get redundancy between results with different technologies.
How you really work a crime scene so that we can find the person who really did it
and make sure we don't arrest the wrong person, much less convict them.
An enormous contribution there.
And I only -- there's so many other people from the commission
like Judge Rhinestein [assumed spelling] and others here who did great work
but I'm only citing the people that I had contentious litigation
with 'cause that's the whole point, right?
Howard Saffer [assumed spelling] and Rudy Giuliani, now Peter Newfeld
and I sued these guys a lot for civil rights violations and we were --
the Abnor Luima [assumed spelling] I mean we were not political allies of Mayor Giuliani
or Howard Saffer but wearing the hat of Commissioner on New York Forensic Commission,
which I'll discuss in a minute, the Criminal Justice Coordinator then,
Katie Lap [assumed spelling] brought me in to meet with Howard Saffer and he tells the story,
as many of you might have heard, and he said, well what are we doing wrong and I said,
this is what you're doing wrong you have 1,400 rape kits in the city of New York
that are unsolved you've got to test those to find the real perpetrator.
You're not working burglaries which really is a gateway crime
where you can find a lot of biological evidence.
You've got to get your Cold Case Squad looking
at these things more carefully, that's what you've got to do.
And Howard said, okay, we'll get those cold cases done you watch Rudy
and I we can really cut through red tape, you watch.
Four years later they were finally able to get with, you know, requests for bid out.
Those 14,000 rape kits examined and we were one of the leaders in doing that but it got done
and that's the kind of thing that can really happen here.
And then, finally, of course, in a related area there's my friend Rod Carmen who, I think,
has been incredibly vigilant particularly in this area because, you know,
we look at these cold cases and these databank hits and one of the real problems
and it angers us in terms of the sclerosis of the bureaucracy is that sometimes even
when you get a databank hit nobody's following up to arrest the bad guy.
And we all know of cases where that's happened.
So just on an individual basis I think that within this community there's an enormous amount
of common ground and a real way to get past the stale arguments of the past.
Now I'm gonna refer back to the post conviction DNA test
and recommendations for handling requests.
Just to review a little of that history and I don't know if you've read this document recently
but when the commission was first formed on the future
of DNA evidence Judge Abrahamson [assumed spelling]
and Chris Asswin [assumed spelling] who's the Executive Director, myself and I can't remember
who else was in this original planning meeting.
The determination was made well the first thing we've got to do is deal
with these post conviction issues.
It really was at the strong urging of Janet Reno that all of this happen because she looked
at that first monograph convicted by juries exonerated by science looking at the first 28,
29 cases and it really upset her and that's why she really went full speed ahead in setting
up this commission and moving forward on quite a number of initiatives.
But if you go back and read the report
when we started our work I think there were 29 exonerations,
there were 2 state post conviction statutes in Illinois and New York,
only 15 states had newly discovered evidence of innocent statutes with statutes
of limitations that were 3 years.
And many jurisdictions you could not even go to court if somehow you got the DNA evidence
and file newly discovered evidence of innocence claim.
In fact in Virginia as you all recall there was a 21 day rule that's why all the early
exonerations in Virginia came by gubernatorial party.
And so the determination was made that we ought to move forward very, very quickly in this area
and we convened this working group chaired by Judge Rhinestein.
And the first thing that I have to say is that I was immediately saying,
well let's pass a statute, let's create a model statute
so we can get them passed in all the states.
And the others there said, well, no you really --
we'd really be better off if we put together a set of recommendations and got them
out right away as to what are the cases there, obviously there should be DNA testing,
the category 1 cases and what cases reasonable people can disagree about,
let's get those out right away, let's put that out into the community
and you'll see they'll be a lot of consent testing.
Now between prosecutors and defense lawyers
and judges will just order it even though there's no legal basis for it in theory.
And that was really a correct judgment, although, I can't resist when we were talking
about category 1 cases, conscience impels me to say that in a plain category 1 case
in Baton Rouge, Louisiana Archie Williams [assumed spelling] we have litigated
that for 12 years, 12 years and finally got access to the testing last week.
So I think, in general, most prosecutors, most judges, most defense lawyers we all mean well,
we all try to have a meeting of the minds but there have been cases.
It breaks my heart that we had to litigate that for 12 years going up and down the state court
into federal court, 1983 Louisiana passes a statute, we had to go all the way
to the Louisiana Supreme Court on an obvious single perpetrator rape category 1 case,
so that can happen.
In any event if you look at category --
the one thing I'd like to say and you heard we doubt talk about our method.
When we and his crack team intake and they're an extraordinary bunch we won't take a case
as a client unless we think it is a category 1 case unless we believe DNA evidence can actually
prove innocence.
Now, of course, what Ted was talking about this morning is true we now have
such remarkable technology that you have to start looking at, oh there's touch DNA here.
You all know about the case in Colorado Masters where the body was dragged across a road
and therefore it was believed that the assailant would have touched the trousers
and touched other part of the clothing of the victim
and Masters is convicted but there was another suspect.
Sure enough when they did this touch DNA, which is really just an enhanced extraction procedure,
they got redundancy of results that matched the person
that was the original suspect, he was exonerated.
So when you start thinking about databank kits, redundant results, why DNA testing.
And as Barry mentioned this morning although I think absolutely I'd be the first person
to say don't let it into court unless it's adequately validated.
Whether it's low copy DNA or now these mini satellites we have an extraordinary toolbox
that's only getting bigger, which makes these cases a little bit more interesting.
And the commission finally did put together a model statute and I think if you go back
and look at the report it very patiently predicted the legal issues.
The very issue that's in front of the United States Supreme Court today
in Osborne I think it's laid out extremely well in that document anticipating it.
I think that the chapters on what prosecutors should do, defense lawyers should do,
judges and most importantly victim advocates and how that whole issue should be handled
because it's always been our position at the Innocence Project we do not talk
to victims we do not want them to learn the results in the newspapers,
that responsibility we want to have victim advocates taken care
of vying notification, we always think about that.
And as a matter of fact in that McGowan case
that Mike Ware [assumed spelling] I was discussing with you.
One of the reasons it took so long is that it took quite a while to find the victim
and for the Conviction Integrity Unit to be able to have some meaningful discussions with her
about what was going to occur and that's very appropriate under all these circumstances.
The only exception when you read this report that wasn't all together patient if you look
at page 3 it says the following, "The need for post conviction DNA testing will wane over time.
Within the next decade DNA testing with highly discriminatory results will undoubtedly be
performed in the vast majority of cases in which biological evidence is relevant, furthermore,
advanced technologies that are not yet in all the laboratories will become common place.
When that occurs requests for post conviction DNA relief will cease for the most part."
Well, that ain't why you're all here.
It hasn't and the exonerations have gone up and a lot of that, I think,
is because better efforts are being made to find the evidence.
A lot of times when we were originally told the evidence was lost or destroyed it turned
out you could later find it, wasn't where it was supposed to be but that's a whole issue
that we're gonna discuss I think this afternoon when it comes to evidence preservation.
But that's interesting and the truth is
that the more we form institutions whether it be Conviction Integrity Units, Innocence Projects
or however it's done the more we find evidence and the more exonerations we have.
Now there are 227 post conviction DNA exonerations and let's be clear by what we mean.
These are cases where it's the DNA results
that was the primary basis for vacating the conviction.
Wedow [assumed spelling] keeps this number and he's very careful.
It's got to be primarily due to DNA, there's a lot of cases where the convictions were vacated
and charges were dismissed where DNA did not play the primary role, we don't count them.
In these cases the charges have to be dismissed, the indictment dismissed
or the individual receive a pardon.
There can also be acquittals but I think it's only 1 or 2 cases that ever went to retrial
and one of them the Rolando Cruz [assumed spelling]
by the time they were finishing the second retrial the prosecutor got indicted for things
that were happening to bring the retrial.
So that's a comparatively rare event.
We keep this data and, you know, we're more and more scholars and social scientists are looking
at this data and the key to it is it's transparent.
We're trying to collect it as best we can but it's transparent.
So if you look at the website and you read a case and you say, you know,
I don't really think this guy's innocent, right, you know,
tell us and if new proof emerges we'll take it down.
But as it stands right now we do stand behind these 227 cases.
Now 44 states have statutes and as David Rodosky [assumed spelling] was explaining this morning
this issue of access, the right of access is now before the United States Supreme Court;
this is just a chart that gives you the statistics that we presented in the question
and answer session this afternoon.
We have had trouble getting exact numbers on what happened with the testing
because in the early days when Peter and I were doing consults
and assisting attorneys we didn't keep track of what happened.
So in other words we know that I think it's like 155
of the cases the Innocence Project was either the Attorney of Record or assisted.
But I don't know what happened to the other cases where we helped people get DNA testing
and what the results were, so we can't count those in order to give a sound number.
So since the Innocence Project became a private independent entity in 2004
and our Executive Director, Maddy Galone [assumed spelling]
who if you haven't met her she is just terrific and we've grown enormously from, you know,
like 5 or 6 people at the time these recommendations were put together
to a staff of 50.
We now have better record keeping and so the statistics that we gave you this afternoon
that there were 43 point 3 percent exclusions, no results in 7 point 2 percent of the cases,
not proven in 7 point 2 percent and the DNA exclusions were 42 point 3,
inclusions 42 point 3 percent.
These are hard numbers from records that henceforth, I think, are pretty sound.
But I was very intrigued by the fact that the Conviction Integrity Unit
in Dallas Mike Ware [assumed spelling] was saying he almost had exactly the same thing I
guess it was like a 50/50 split.
I suspect that over time or even if we had all the statistics there might be somewhat more
inclusions than inclusions but the fact
of the matter is it doesn't matter does it all these people were supposed to be guilty,
they were proven guilty beyond a reasonable doubt, they lost appeals,
they often lost state habious, they lost in the federal courts and habious guilty, guilty,
guilty, guilty and what's -- these are just extraordinary numbers.
Now, the causes of wrongful convictions we also updated these for you with hard numbers.
Looking at the 227 cases 75% eye witness miss-identification that's 172 of them,
non-valid or improper forensic science, more than 50% about 119 we're getting an exact count
on that number and for our friends in the forensic science community we're gonna present
to you exactly how we reached those conclusions in all these cases with the help
of some consultants and so you all can double check it.
False confessions or admissions are approximately 25% of the cases, 52 of them.
And the reason we say approximately there have been some of these cases
where it was a false confession by defendant number 1 but it exonerated his co-defendant,
right, so we count both exonerations even though it was one false confession.
So those numbers you can see what they actually are but that's the way we're counting them.
Jailhouse snitches 36 or 15%, and here, of course, is the most important number of all
and it is getting bigger because of the databases and that is that in 40%
of the cases now approximately 40%
or 89 instances the real assailant has been identified.
So one thing that I think we have to look forward --
we have to look to going forward is that we all do want better data not just
about these DNA exonerations that'll be comparatively easy to put together in some
of these cases but just about system wide.
The truth is that we don't look in jurisdictions systematically about what happened
when non DNA evidence a conviction is vacated based on newly discovered evidence of innocence.
What went wrong, what can we learn to improve in terms of the investigative process
or even when indictments are filed and then police
or prosecutors realize it's the wrong person, what happened there?
We don't keep track of these relevant statistics in terms of the error rate of our system.
And a very wise social scientist I met at Carnegie Mellon once said,
"If you want to change an institution change its paperwork."
And so one of the, I think, real challenges for us is to do better data collection.
Now I'm just gonna make a series of observations sort of big picture kinds of things
about how we can go forward and get past stale arguments in some of the things
that are already happening and things that we can look to do better going forward.
Now the first issue is what we loosely call Innocence Commissions but it really stems
from a suggestion that we made in Actual Innocence the book that Peter and I wrote
with Jim Dwyer [assumed spelling] and there we actually proposed something that there ought
to be commissions that are similar to the National Transportation Safety Board.
I'm sure you've all heard the arguments, you know, what happens when a plain falls
from the sky or a train derails you bring in the NTSB, it's a small organization
that speaks truth to power, they have the opportunity
to call in other experts to investigate.
And all they're supposed to figure out is what went wrong
and how can we fix it it's not an assignment of civil liability, their results can't be used
for that purpose but what went wrong and how can we fix it.
Many times the NTSB makes recommendations to the Federal Aeronautics Administration
and they just go well, it's too expensive we can't save all that evidence, right,
we can't test absolutely everything as Barry Fischer was pointing out this morning.
But the NTSB goes in there and really tries to figure out how we can fix the system.
Now the first, I think, efforts to look at this
in a systematic way are what are known as the Ryan Commission Reports.
And as you recall when it turned out that there were more exonerations of death row in Illinois
than there were people executed Governor Ryan declared a moratorium on capital punishment
and eventually gave clemencies to 174 people giving them life in prison.
But during that period of time the Illinois Legislature started looking at all the causes
of wrongful convictions and came up with legislation that would try to fix it.
And one of the leaders there was then a little known State Senator named Barrack Obama
who carried a number of the bills most prominently the video taping
of interrogation bills.
So I can state to you with real authority that the President
of the United States is looking very carefully at this community and what we can come up with
because he is, afterall, a constitutional scholar.
And when he was working in the legislature in Illinois he tackled these problems.
And as a matter of fact as you heard during the course of the campaign he sighted this work
as an example of how he was able to cross the isle with republicans
and with others to create consensus legislation.
So after the Ryan Commission Reports I would, in doing our little history here,
I would go back to a meeting that the American [inaudible] Society put on really with the help
of Janet Reno and, of course, Lori Robinson and, you know,
Larry Hammond [assumed spelling] is here who is on the planning committee,
Governor Bill Ritter of Colorado was.
And what was done then just like here I think we had 24 teams from different states
across the country, prosecutors, defense lawyers, judges everybody came to Alexandria,
Virginia and it really was just the first run, the first cut at what could we do
to improve this system in light of all these exonerations, what remedies can we take?
And out of that meeting it's, I can really trace it looking at the people
in the room, things began to happen.
Justice Beverly Lake with the great support of her then law clerk
and now Innocence Project Commissioner had so many different hats
that Chris Mumo [assumed spelling] so effectively.
North Carolina they formed a commission and they immediately went at looking
at eye witness reform and other matters.
The California Commission on the Fair Administration of Justice, I think,
is a really good one to look at because they put everything online, issued a big report
and systematically took on each of the issues including the very difficult question
of capital punishment as a system issue.
Pennsylvania is now involved in a very serious process that is legislative led the way
to enacted Innocence Commission to come up with reforms.
Connecticut we had one not as successful as we would like it was between University
of New Haven with a lot of police people and Yale Law School some things came out of that
but we could have done a lot better there.
Judge Hurvey [assumed spelling] the Texas Court of Criminal Appeals actually has been working
on a review of all these reforms itself and was holding hearings in the last few months,
which is really extraordinary event.
And we have the New York State Bar Association that's looking at all
of the New York exonerations and issuing a report that we expect really at the end
of the month, maybe at the beginning of February.
Now all these are great but we are going over the same grounds state by state.
And so the idea that I commend to you is why shouldn't we have a national commission
that looks at ways we can improve the administration of justice,
looking at all these different areas, getting the ideas from each different state
from all sides and following the injunction of our President.
You know, the most important thing is not whose idea it is or how it does,
does it work, right, does it work?
And with that pragmatic notion in mind I think we can benefit from a blue ribbon commission
and meetings such as this that a national commission can assist the states in trying
to figure out how we can move forward on all these remedies for the causes
of wrongful conviction, which, afterall, are just good public safety measures.
I'd like to just review quickly, and you've heard about him already, some of the models
that have immerged for the DNA review.
And Mike Ware, Craig Watkins and all the people Terry Moore [assumed spelling]
at the Dallas District Attorney's Office,
it's been really a quite extraordinary journey with all these exonerations.
But I want to emphasize something that Mike was talking about
and that is the information sharing.
When you open up all the files and we just look at them, right,
that makes it faster and there is agreement.
I remember Woody Clark and I figured that when we were on the commission we could look
at these cases and we would agree on close to 99 and 9/10% of the cases.
Because there really is a lot of big ground of consensus here looking at them.
It's efficient and it really gives you an opportunity
to share investigative data in a very sensitive way.
There's one case, for example, where we were able to identify the person
who really committed the crime and actually gave the information
to the Dallas District Attorney's Office so they could go out
and arrest this guy for murder, right?
And equally in one of the really extraordinary cases that Mike mentioned
in passing the Stephen Phillips [assumed spelling] case and here's a guy
that was convicted of a very crazy kind of sexual assault where he would walk --
the person would walk in to exercise areas where women were driving up in a --
what was a red Eldorado and he had a certain kind of mask and a German Lugar and all kinds
of really distinctive features to the crimes.
And Phillips is identified there, he goes to trial, he's convicted,
he realizes that if he's gonna ever see the light of day again he might as well plead
to the other 5; this was one of the cases that Craig Watkins predecessor didn't agree to test.
They not only went back and we got testing results on the crime for which he was convicted
but most importantly the investigator in the Conviction Integrity Unit Jim Hammond went out
and did things that we wouldn't do and can't do as effectively on the defense side
and eventually found this serial offender that had committed literally hundreds of offenses
like this and probably in the final analysis in Wichita, Kansas and Houston and Los Angeles all
across the country, a real one-man crime wave.
I hear that the Arizona Justice Project is being set up in the same way now
in terms of the sharing of information.
So the thing I'd really like to stress about this is that I don't think the models work
that well when it's just the prosecutors doing it themselves
or frankly it's just the Innocence Projects working in a completely adversarial posture.
It really helps to share information you won't always agree
but there are ways to proceed that really help.
And I think without talking more about it I think the other thing we ought to look
at in terms of a big idea is that we all know in the non DNA cases in particular if one goes back
and tries to figure out whether an injustice has been committed,
whether somebody is actually innocent it is extremely hard to get into any court state
or federal and really litigate or present that claim.
I don't think Article 3 courts really are designed that way
and we really should start thinking more of alternative institutions
to resolve these factual disputes probably along the lines that has worked pretty well.
At the Criminal Case Review Commission in the United Kingdom
which just had its 10th anniversary I was over there celebrating that and it was impressive,
it really was impressive what they've accomplished there.
Another kind of cooperative effort that I'd like to share with you just
so you see how this is working has to do with composite bullet lead analysis.
I'm sure you all remember that in 2005 the National Research Counsel came
down with the finding that composite bullet lead analysis testimony as presented
by FBI analysts consist with something only the FBI was doing lacked scientific merit
in the way it was presented.
And specifically in cases where you can't do tool marks examinations on a bullet
but you just are looking at the chemical composition what the FBI analysts would do going
back to 1973 is they would analyze the bullet to see its chemical composition.
And an assumption was made that when you have a big melt of bullets
from which you can make 32 million bullets, alright,
but within a block there was an assumption that you would have the same chemical composition
within a block and there was a further assumption
that if you had 2 different blocks they would have different chemical compositions.
And certainly as to the first assumption it turned out to be plainly wrong.
So what would happen is is that FBI analysts would come into court
and they'd say this bullet came from this box of ammunition, it was manufactured
within a certain date or it's comparatively rare we'll look at how many are sold
within the jurisdiction and they give statements like that
which could be very important in cases.
So that report came out in 2004 but frankly it was paralyzing
in terms of even following up on it.
My friend Dwight Adams who's another person I should have put on the list 'cause I spent a lot
of -- I think I cross examined Dwight in the early days for 2 weeks, alright,
Jim Woody would remember, for 2 weeks on validation studies for the initial use of DNA.
He became head of the science bureau in the FBI and a terrific public servant.
So he first looked, shepherded the -- went along with the NRC recommendations,
the FBI eventually abandoned doing any composite bullet lead analysis,
but we realized that nothing was happening with cases lawyers weren't picking
up on this they didn't follow this.
So 60 Minutes, the Washington Post and the Innocence Project did a joint story ran it
in the Washington Post, was on 60 Minutes about this issue.
Why aren't prosecutors being notified
that the FBI no longer stands behind the testimony of its agents?
And as we went through that process Valerie Caproni [assumed spelling] who was counsel
to the FBI and John Miller who's their public spokesperson who when he was a reporter
at NBC News worked on some exoneration cases with Peter and I, they actually said,
you know what you're right, you're right, you guys are right about this.
We have to notify the courts and the prosecutors that this is no longer evidence
that we can stand behind but not in every case we want to look at it carefully.
So we put together a team of members of the Innocence Network,
the National Association Criminal Defense Lawyers, The Innocence Project and the law firm
of Winston and Straun [assumed spelling] and we've signed a protective order
with the FBI and we now review the cases.
And they've done an incredible job they're never gonna find them all but going back looking
at who testified, where, we had to eliminate the guilty pleas but we just went back
and started looking at the testimony.
The FBI would send out letters to the prosecutors saying give me the transcripts.
They came back they look at the transcripts, they make and evaluation and then they send
out letters and usually the letters pretty much in 2 categories one is;
this is a bullet to box case and we're telling you that the agent's testimony is holy
without merit or they'll say it's kind of an exaggeration case, they implied
or stated the bullet came from the box and it exceeds the limit of the science
or the testimony about the number of bullets exceeded the limits of the science,
and very careful protocol was worked out in these discussions.
And then they started sending out letters and every letter they send out
and the letters are really kind of fun, you can't read it but --
actually this is a copy of the protective order, but then they'll send
out a letter basically saying to the prosecutor; this evidence isn't any good anymore,
you see how much that matters to the case and we're working with The Innocence Project on this
and we told the state judge and be aware that they may, you know, be knocking on the door
to follow up to see if we can find the clients.
And then they literally send us the letters they're sending out,
we have this big spread sheet and we had a meeting in Washington DC
about a month ago saying, well, you know, we've looked at some of these letters
and we've reviewed the transcripts and we don't think
that you're actually following the protocol you laid out.
And they reviewed them and they said, well we agree with you on these cases and we're sending
out revised letters and we disagree with you on this we're standing to our position.
Well that's fine and that is the kind of process that can really move forward
and I think you'd have to agree it's a fairly unusual effort isn't it?
And there have already been exonerations; there is a -- well, a conviction vacated at eights.
The letter went out, we didn't even find the defendant,
the prosecutor in Florida took one look at this and he said this was a close case;
this really mattered, I'm coming into my own motion and vacating this conviction.
And we'll see whether he's retried and that was a murder case.
A lot of these are very serious cases.
There's a case a death penalty case Mordonte [assumed spelling] CBLA figured in the vacator
of the conviction and then he was given a time served plea so, you know,
where I come from that sounds like a win.
Then we have forensic science commissions, yeah, I got to go on huh?
How much -- oh, I'm almost finished, alright.
Let me -- I can go on and on as you well know.
What's important to say -- alright, last thing that's important to say.
We all know one of the things that the president said in his inaugural is that it's really time
to restore science to its rightful place in government.
And we are expecting soon that the National Academy of Sciences
which has been doing this big report looking at the needs of this community is going
to issue a report probably in the middle of February that looking
at the presentations is gonna be quite extraordinary and it is going to deal
with issues about the validity and the liability of a number of forensic essays,
pattern evidence, tool marks, things of that nature.
Probably call for, I hope, for a National Institute of Forensic Science
in the science based agency, the federal government to conduct more applied
and basic research and put real money into this and more money into the crime labs.
It's also gonna do something -- the last point, I forgot, one thing that you all should think
about now is a statute, a statute that permits the defense to make a motion to the court
with good cause showing to have a court order to have a DNA profile put
into the CODIS [assumed spelling] database before trial or after trial and forget CODIS,
AFIS, the Automatic Fingerprint Identification System is the most underutilized tool
for catching criminals and exonerating the wrongly convicted.
You should also have a right to access that database.
But the problem with the AFIS database, any of you working in the system know,
you can't even do a comparison of a fingerprint in New York to New Jersey;
those were the presentations in front of the National Academy.
And there are so many problems with that and there's so much difficulty
in getting good latents into the system and measuring them; this is a key area that all
of you in the crime labs, all of us in prosecution and defense should be looking at;
this AFIS databank system has to be changed and we should really take advantage of it.
Thank you very much and for being patient.