Witnesses picked for Westerfield penalty phase ( SBR penalty Watch).

San Diego Union-Tribune ^ | 2002-08-27 | Alex Roth , UT Staff

[Freedom2specul8]

I love bvw's way with words, even if we don't agree.

[CAPPSMADNESS]

Hello bvw! someone told me to post this here....... so here it goes!


Investigating Wrongful Convictions:
Getting Started
A Resource for Journalists
By Edward Humes, author of:

"MEAN JUSTICE: A Town's Terror, A Prosecutor's Power, a Betrayal of Innocence"



You've just received an emotional letter from a woman who swears her son has been convicted of a murder he didn't commit. The allegations of official mistakes or misconduct she describes sound rational, even plausible. But old clips on the case suggest evidence of guilt is strong. How do you decide if there is something worth pursuing? Was the prosecution case open and shut, or full of holes?



One approach is to look for clusters of the warning signs of injustice -- factors that have often appeared in documented cases of wrongful conviction. The presence of several of these factors in a single case can help you decide if there is a story -- and a possible wrongful conviction -- to pursue. And if it seems there may be a story there, this list can provide starting points for in-depth digging into police reports, court records, autopsies, forensic reports, and your own interviewing of witnesses and others.



1. No smoking gun: The absence of physical evidence linking the defendant to the crime/crime scene. (Examples: No blood where it should have been; no gunshot residue where it should have been; no fingerprints or the presence of unknown fingerprints at the scene; fruitless searches of the suspect's person, house or car.) For the reporter, this is the threshold point to consider -- the presence of strong, unambiguous physical evidence that cannot easily be explained innocently is a good reality check on claims of wrongful conviction. However, the absence of such evidence, or the existence of a reasonable interpretation of that evidence consistent with innocence, opens the door to consider other factors on this list.



2. Jailhouse informants who are freed or who receive leniency from prosecutors, then testify that the defendant incriminated himself while incarcerated. Probing the history of such witnesses -- and whether that history was disclosed by the prosecution (see item #5 below) is critical, particularly when such witnesses are key to the state's case or when they materialize late in the game.

3. Leniency deals: Witnesses or codefendants granted leniency in their own criminal cases in exchange for testimony, particularly when there is no corroboration of their stories. Pay attention to witnesses whose stories improve (from the prosecution point of view) with time -- i.e., become more detailed and more incriminating when compared to initial statements.

4. Theory before evidence: In complex and difficult cases where the identity of the perpetrator is not immediately apparent, model criminal investigations start with a thorough gathering of evidence before focusing on a single suspect. Others start with a likely suspect, then gather evidence that fits the official theory -- the approach most common in wrongful convictions. Such investigations readily -- sometimes uncritically -- accept witnesses and evidence that fit the theory. But other seemingly credible witnesses or evidence may be ignored or minimized if they fail to incriminate -- or tend to exonerate -- the chosen suspect. Such witnesses -- even ones initially viewed as credible by authorities -- may be subjected to criminal investigation, asked to change their stories, or asked to concede that they might be wrong. Sometimes such information about witnesses favorable to the defense is buried or kept hidden (see #5 below). These officially "wrong" witnesses and pieces of evidence can provide most fertile ground for investigative reporters. Note: This selective view of the evidence by the authorities almost always arises from genuine belief in the guilt of the suspect (as opposed to a corrupt desire to frustrate the search for truth). The tendency is to view even the most powerful and convincing contrary information as an obstacle to overcome, a mistake, a lie, or a defense attorney trick.

5. Questionable prosecutorial tactics or misconduct: The withholding of evidence helpful to the defense is the most common problem in this category -- and the most difficult to detect, as prosecutors control the flow of information in criminal cases, with virtually no oversight. Other problems somewhat more visible include the use of false evidence or testimony; the use of surprise evidence or witnesses disclosed at the last minute; courtroom misbehavior; and substantial changes in the prosecution's theory of the case over time or contradictions between multiple trials.

6. Use of questionable scientific analyses, particularly involving physical (non-DNA) comparisons of hair samples; determinations in arson cases as to whether accelerants were used to start fires; early DNA tests (RFLP testing) that may overstate the likelihood of a match; use of scent dogs or "scent machines;" unproved scientific methods (example: the "wink test" to detect sexual abuse in children, responsible for dozens of false convictions).

7. Questionable eyewitness identifications in which the witness initially expressed uncertainty or described a suspect different in appearance.

8. Confessions in which coercion by the authorities is asserted (of particular concern with juveniles -- see false/tainted confessions in Chicago's recent Ryan Harris murder case and San Diego's Stephanie Crowe murder case).

9. Witness statements in which coercion by the authorities is asserted (of particular concern with child victims of sex crimes where medical evidence fails to corroborate the allegations -- see the Bakersfield, Wenatchee, Amirault, Little Rascals, McMartin and other flawed molestation prosecutions, where coercion and "brainwashing" of victims by the authorities has been cited by appellate courts as grounds for overturning convictions).

10. Existence of viable alternative suspects not thoroughly investigated by police, prosecution or defense. Potentially fertile, but often very difficult, ground for reporters.

11. Little apparent work by the defense: Look for few motions filed, few witnesses called, little or no investigative work prior to trial, little cross-examination of prosecution witnesses, absence of expert witnesses to counter experts called by the prosecution.

12. Emphasis on "state of mind" or "suspicious conduct." Such evidence is so subjective, it can always be viewed as evidence of guilt. (Examples: Defendant was insufficiently grief-stricken or the converse, defendant was uncharacteristically emotional, so must have been faking it; defendant was angry and uncooperative with investigators or the converse, defendant was too willing to talk, must have been trying to lie his way out of trouble.)



A Final Note: These factors are just a starting point. The mere presence of one or more of these indicia proves nothing -- many cases that result in appropriate guilty verdicts may include some of these elements. Indeed, one would be hard pressed to find a criminal case that did not include at least one of these elements. Further, any of these factors can be rendered insignificant by other evidence -- such as use of a jailhouse informant whose testimony is corroborated by reliable DNA analysis (as opposed to an informant's testimony when physical evidence is absent, a combination often present in cases of wrongful conviction). But constellations of these elements -- in the context of each unique case -- can indicate possible wrongful convictions worthy of further reporting. One last caution: Proving a wrongful conviction should never be confused with the much more rare and difficult task of proving someone innocent.

[bvw]

Bell ringer post by CAPPS! (Apologies to interested parties not included.)

[MizSterious]

bvw, thanks for the ping. Capps, thanks for the repost of this excellent information. I know it's been posted elsewhere, but perhaps this one will reach some of the closed minds here--or at least some who are wavering on the fence.