Westchester Guardian/Jeff Deskovic.

Thursday, April 2, 2009.


Jeff Deskovic


What A Second Look Program
Should Look Like, Part 2


As I have written previously, and will doubtless reiterate in the future, District Attorneys and prosecutors wield a great deal of power. Their actual mandate is to seek justice. That involves not simply winning convictions, but also helping to free the wrongfully convicted as well as preventing further wrongful convictions.


There have been, of course, many shameful instances in which prosecutors have prevented DNA tests and/or fought against claims of innocence despite compelling evidence, in an all-out effort to uphold all convictions, wrongful or otherwise, no matter what. Similarly, have been numerous instances of praiseworthy behavior, as when prosecutors have agreed to a reversal of charges based upon evidence of innocence that has been brought forward, or have agreed to DNA testing.


However, as positive as those instances are, having a Second Look Program within the district attorney’s office, one which will proactively go through old cases searching for wrongful convictions, is infinitely better. There are many reasons why this is true. One of them is the fact that often poor defendants who cannot afford private attorneys do not get adequate investigation.


Additionally, once a defendant’s appeal has been turned down by the Court Of Appeals, which routinely does not agree to hear meritorious cases, the State is no longer obligated to provide free representation.


Although the federal courts are able to appoint counsel for the poor, they often do not do so. Hence the need for the reviewing of cases even without prompting from a defense attorney.


DNA Cases


Cases that have DNA-testable materials are the easiest to resolve in terms of determining whether the defendant is guilty or innocent. If a case has a DNA, issue and it has been preserved, we must simply test it.Characteristics that would be looked for by screeners searching for cases that could be resolved under this method would include:


• Cases that have previously involved blood type testing. Often such cases have led to DNA exonerations;


• Cases in which prior DNA Testing requests have been opposed and blocked;


• Cases in which the record indicated that there is DNA testable material.


In addition, in cases whose convictions rest all, or, at least in part, upon positive DNA matches, an inquiry should be made as to which laboratory produced the results, whether there have been any documented problems at that lab, and whether the lab was accredited at the time it performed the test.


A similar check should be made regarding the specific personnel who worked on the case, including an independent review of their credentials and education, to ensure that everybody was Board-certified, and that their education qualified them to do the testing that they performed.


If any lab and/or personnel are, or were, uncooperative with respect to such inquiry, a new test at a new lab should be conducted, and the former lab should no longer be utilized.


Additionally, information about that non-cooperation should also be circulated to other district attorney’s offices, the Defense Bar at large, and various Innocence Projects around the country.


A similar protocol should be followed if a lab has been discovered to have problems. There have been, as I previously written in a piece entitled DNA Testing Only As Good As The Lab, laboratories that do not observe proper protocols to avoid contaminations.


I cited three different cases in which false DNA inclusions have resulted in wrongful convictions before further testing revealed innocence. Defense attorneys and prisoners should be encouraged to bring any such cases to the attention of the Second Look program which involves DNA.


There are innocence projects that take only DNA cases, those that take non DNA cases, and those that take both. In geographical areas where there are DNA-only innocence projects or a project that takes both, this would seem to me to be a natural collaborating ally with a Second Look program.


Cases could be reviewed by the innocence project, in effect outsourcing some of the work; memorandums drawn up by the Innocence Project regarding cases involving DNA, which would then be reviewed by personnel in the Second Look program.


Non DNA Cases


As I have previously indicated, DNA testing is only available in 10to 12% of all serious felony cases. Therefore most cases will not involved DNA. In these cases, there are different ways in which they could come to the attention of the Second Look program.


One way might be to investigate those cases in which attorneys that have previously represented clients who have professed their actual innocence from the beginning and maintained that innocence throughout the appeals process.


Those attorneys might bring those cases to the attention of the Second Look program, along with evidence of innocence, whether that evidence was newly discovered or was previously known. That evidence might then be investigated, and, where warranted, a deeper look into the case could take place.


Additionally, attorneys might point out a potential showing that would make the verdict unreliable, which might then trigger a further look into the case. Such further inquiry could involve making a determination as to the reliability of the evidence originally used in securing a conviction.


In cases where there is no attorney or advocate championing a case, the review would be done simply by reading an appellate brief and weeding out the cases deserving of further review from those that are not.


Those whose factual issues or points of law are sufficiently intriguing and/or plausible with respect to possible actual innocence, should receive further review. That review would then consist of reading over and evaluating the District Attorney’s Briefs, and then analyzing them.


After that process, if a case has not been weeded out, additional inquiry could be made. Areas of inquiry, depending on the individual fact pattern of the case, could include:

Confession: What were the circumstances surrounding a confession. Were there any conditions which might make the confession unreliable; and were the statements supported, or inconsistent with known facts of the crime. False confession experts may be consulted. Identification:

Did the defendant unduly stick out, did the police officers either intentionally or unintentionally give any undue cues or clues; was the witness pressured by the police or previous prosecutors; was a reward of any kind given in exchange for the testimony; and was that reward disclosed? Eyewitness misidentification experts might need to be consulted. Crime scenes could be revisited and/or vantage points where a witness said that they were standing where the observed a crime. Could somebody get a good look from there?

Experts: Were all of the experts reputable? Were they properly certified? Did their education qualify them to undertake the testing that they performed? Was the lab itself properly certified and did it follow correct safety protocol? Have they been identified in any other cases as
being involved in misconduct?

What is the consensus of other experts in the field, peers, as to the lab’s reliability? Did the expert overstate statistically their findings? That might be determined by consulting other established experts in the field. Is the science itself truly scientific, based on sound research and statistics and scientific principles? Is there a consensus as to those matters by experts?

Previous Junk Science Exposure: Have any sciences involved in the case since been exposed as junk science that had not been so exposed at the time of the trial? Two good examples here include bullet lead analysis, and tire track comparison, the latter having contributed to Steven
Barnes’ conviction, which resulted in his serving 20 years before being proven innocent by DNA.

Witness Integrity: Did any of the witnesses receive benefits for their testimony not disclosed or possibly denied? Aside from that, traditional investigation could take place, which would involve canvassing geographical areas, reinterviewing witnesses, tracking down and talking to witnesses who might have been, but were never called at trial, investigating alternative suspects, and ensuring that all material was actually
turned over that should have been.

There have been many cases where defendants have been cleared as the result of undisclosed exculpatory material being uncovered once
files were reviewed. In this area, allowing the attorney coming forward to search the files with a Second Look staff member, and an internal
search could be done to ensure that all Brady and Rosario requirements have been complied with.

In addition, were alternative suspects recognized in either police or prosecutors’ records or notes? An important technique recommended
by the recent New York State Bar Association’s Report On Wrongful Convictions involved investigating alternative suspects until they could be ruled out, even after an arrest had been made. This technique could still be utilized at the post-conviction stage.

Prevention As great as undoing wrongful convictions may be, it is always better to prevent them in the first place. Therefore, the practice of scrutinizing new cases, as well as ongoing cases, should be implemented. Here are some suggestions which could go a long way to achieving that objective: Cases which are built essentially upon confessions should be very carefully scrutinized, especially in light of the fact that false confessions have caused 25 percent of the nation’s 234 DNA proven wrongful convictions.

Definitive questions should be asked, such as, “What were the conditions under which a confession was obtained? “Is there anything about those conditions which might render the confession unreliable?” “Does the physical evidence match the details in the confession corner for corner?”

It has often been discovered, post-exoneration, in DNA proven wrongful convictions that are based on false confessions, that the
confession’s details did not match known physical evidence. That lesson should be understood and acknowledged by District Attorneys’ offices everywhere in screening confession cases.

Additionally, prosecutors should use the moral weight of their office to encourage police departments to tape record all interrogations. That now highly-recommended procedure not only creates a more complete record, but makes it easier for judges and juries to determine if a confession is genuine or coerced by preventing police from omitting elements from their testimony while, at the same time, protecting honest cops from false allegations of coercion.

It is understood that the videotaping of confessions not only makes for better evidence but also it has been proven in jurisdictions where
utilized to result in more plea bargains brought about by defense attorneys encouraging their clients to plead guilty in the face of a clearly
voluntary confession. Fewer unnecessary trials go a long way to keeping court costs down.

Cases built upon coerced confessions should be rejected by honest prosecutors, who should tell the police presenting such material to
go out and do some further investigating and come back with real evidence.

In cases that are based upon identification, care must similarly be taken. Prosecutors should review identifications for telltale signs, such
as victim’s verbal description of a perpetrator not matching the physical characteristics of a defendant; and photo arrays and/or lineups in which the suspect unduly stands out.

Duplication of testing should be done using different experts, and proper background checks should be utilized to determine the credibility,
reputation, and prior professional history of expert witnesses.

According to a 1994 article by the Los Angeles Times, a panel commission by the West Virginia Supreme Court issued a report stating
that one well-known so-called scientific expert “was routinely overstating the strength of results, overstating the frequency of genetic
matches reporting inconclusive results as conclusive, repeatedly altering laboratory records implying a match with a suspect when testing
supported only a match with the victim, and reporting scientifically impossible or improbable results.”

According to the Chicago Tribune, another well-known scientific expert “has been accused in lawsuits of presenting false or misleading testimony that helped convict nine men, including three that have since been exonerated by DNA and four more defendants whose guilt has been cast in doubt.”

Vigilance should be observed that all scientific evidence offered s based upon legitimate sciences backed up by appropriate data.