27 Years On Death Row…

On Monday the California Supreme Court granted the habeas corpus petition of  Vicente Benavides Figuero, a former farmworker who spent 27 years on death row, finding that medical testimony and an autopsy result used to convict him had been inaccurate. Most of the experts who testified against him have since recanted. “The evidence now shown to be false was extensive, pervasive and impactful,” Justice Carol A. Corrigan wrote for the court.

The outcome results directly from SB 694 (Leno), passed in 2015, which added as grounds for a writ of habeas corpus, new evidence exists which would raise a reasonable probability of a different outcome if a new trial were granted. This is a substantially different and easier burden to meet than the old standard, before 2015, when in order to prevail on a new evidence claim, a petitioner had to show that the new evidence undermined the prosecution’s entire case and “point[ed] unerringly to innocence with evidence no reasonable jury could reject” (In re Lawley (2008) 42 Cal.4th 1231, 1239). The California Supreme Court had stated that this standard was very high, much higher than the preponderance of the evidence standard that governs other habeas claims.

As the bill analysis for SB 694 explains, the old standard was: “nearly impossible to meet absent DNA evidence, which exists only in a tiny portion of prosecutions and exonerations. For example, if a petitioner has newly discovered evidence that completely undermines all evidence of guilt and shows that the original jury would likely not have convicted, but the new evidence does not “point unerringly to innocence” the petitioner will not have met the standard and will have no chance at a new trial. Thus, someone who would likely never have been convicted if the newly discovered evidence had been available in their original trial is almost guaranteed to remain in prison under SB 694 (Leno ) Page 4 of 6 the status quo in California. The proposed new standard in SB 694 addresses this anomaly. Our criminal justice system was built on the understanding that even innocent people cannot always affirmatively prove innocence, which is why the burden is on the prosecution to prove guilt when a charge is brought to trial, and absent evidence of guilt beyond a reasonable doubt, innocence is presumed. The new standard contained in this bill ensures that innocent men and women do not remain in prison even after new evidence shows that a conviction never would have occurred had it been available.”


Eight Reasons Why

I quote John Grisham’s op-ed in the LA Times. “Eight reasons for America’s shameful number of wrongful convictions”:

“Bad police work

Most cops are honest, hard-working professionals. But some have been known to hide, alter or fabricate evidence, lie on the witness stand, cut deals with snitches in return for bogus testimony, intimidate and threaten witnesses, coerce confessions or manipulate eyewitness identifications.

Prosecutorial misconduct

Most prosecutors are also honest, hard-working professionals. But some have been known to hide exculpatory evidence, encourage witnesses to commit perjury, lie to jurors, judges and defense lawyers, use the testimony of bogus experts or ignore relevant evidence beneficial to the accused.

False confessions

Most jurors find it impossible to believe that a suspect would confess to a serious crime he didn’t commit. Yet the average citizen, if taken to a basement room and subjected to 10 consecutive hours of abusive interrogation tactics by experienced cops, might be surprised at what they would say. Of the 330 people who were exonerated by DNA evidence between 1989 to 2015, about 25% gave bogus confessions after lengthy interrogations. Almost every one recanted soon after.

Faulty eyewitness identification

More often than not, those who witness violent acts have trouble accurately recalling the facts and identifying those involved. Physical and photo lineups may exacerbate the problem because police manipulate them to focus suspicion on favored suspects.

Jailhouse snitches

In every jail there is a career criminal staring at a long sentence. For leniency, he can be persuaded to lie to the jury and describe in great detail the confession overheard from the accused, usually a cellmate. If he performs well enough on the stand, the authorities might allow him to walk free.

Bad lawyering

Those accused of serious crimes rarely have money. Many are represented by good public defenders, but too many get stuck with court-appointed lawyers with little or no experience. Capital cases are complex, and the stakes are enormous. All too often, the defense lawyers are in over their heads.

Sleeping judges

Judges are supposed to be impartial referees intent on ensuring fair trials. They should exclude confessions that are inconsistent with the physical evidence and obtained by questionable means; exclude the testimony of career felons with dubious motives; require prosecutors to produce exculpatory evidence; and question the credentials and testimony of all experts outside the presence of the jury. Unfortunately, judges do not always do what they should. The reasons are many and varied, but the fact that many judges are elected doesn’t help. They are conscious of their upcoming reelection campaigns and how the decisions they make might affect the results. Of those judges who are appointed rather than elected, the majority are former prosecutors.

Junk science

Over the past five decades, our courtrooms have been flooded with an avalanche of unreliable, even atrocious “science.” Experts with qualifications that were dubious at best and fraudulent at worst have peddled — for a fee, of course — all manner of damning theories based on their allegedly scientific analysis of hair, fibers, bite marks, arson, boot prints, blood spatters and ballistics. Of the 330 people exonerated by DNA tests between 1989 and 2015, 71% were convicted based on forensic testimony, much of which was flawed, unreliable, exaggerated or sometimes outright fabricated.”


Grisham references “The Cadaver King and the Country Dentist,” by Radley Balko and Tucker Carrington, a new book that tells the story of two of these “experts,” Steven Hayne  – a controversial forensic pathologist who once boasted of performing more than 2,000 autopsies in a single year – and his friend, Michael West, a small-town dentist who assumed the role of an expert in many other fields. Together they accumulated a string of convictions in Mississippi and Louisiana, and while it is clear that they in fact had little or no real expertise, only a few of those many convictions have actually been overturned. Grisham tells the story as an indictment of America’s broken criminal justice system, where prosecutors were allowed, and even encouraged, to present flawed forensic testimony because it was molded to fit their theories of guilt.

“Will incarcerated students transform the university?”

Excellent op-ed, “Turn Prisons Into Colleges”  by Harvard Professor Elizabeth Hinton in the New York Times this Tuesday. Hinton argues that education is a civil right that improves society and increases civic engagement, and that expanding educational opportunities to prisoners will reduce recidivism and government spending. She quotes a 2013 study from RAND showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.

Currently, the Senate Committee on Health, Education, Labor and Pensions is consideringpermanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”

Hinton’s conclusion:

 “College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery. Expanding prison education programs would link those two ventures in a forward-thinking way. It’s clear that education will continue to be a central part of criminal justice reform. The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”

Juvenile Diversion in LA County

The LA County Office of Diversion and Reentry has published a new report on their efforts to implement the new, comprehensive model of youth diversion that the Board of Supervisors adopted in November 2017. The aim of the new model is to connect at-risk youth with community-based services that support their development instead of arrest or citation.

Los Angeles County has the largest juvenile justice system in the nation. Available data suggests that although the total number of youth arrests in the county has decreased in the last decade overall, youth of color have become increasingly more likely to be arrested than their caucasian peers. In 2015, the arrest rate for Black youth in Los Angeles County was over 6 times higher than that of White youth. According to the new ODR report, one factor that contributing to this inequity is the wide variation in youth diversion practices and resources in Los Angeles County: “Coordination and support is needed to scale and spread evidence-informed practices and build a continuum of services that can effectively address the needs of youth in communities countywide.

Informed by local data and evidence of effective practice, this model will build the infrastructure needed to ensure that all youth in Los Angeles County can connect with a continuum of services that address their needs, reducing youth arrests and equitably improving outcomes for youth and communities.”

People v. Contreras

The California Supreme Court on Monday struck down a 50 year sentence for a juvenile as cruel and unusual punishment. In a 4-3 ruling, the state high court said such a sentence for minors was “functionally equivalent” to life without parole. “A young person who knows he or she has no chance to leave prison for 50 years ‘has little incentive to become a responsible individual,'” wrote Justice Goodwin Liu, citing the 2010 U.S. Supreme Court Graham decision that restricted life terms with no chance of parole for minors to cases involving murder.

The California court ruled in favor of Leonel Contreras and William Rodriguez, who were 16 when they attacked two teenage girls in San Diego County in 2011. Rodriguez was sentenced to 50 years to life and Contreras to 58 years to life.

Democracy and Inequality

Thomas Edsall in a NYT op-ed lays out the several current theories about the failure of democratic governments to deal with the problem of economic inequality. There is the Piketty theory that traditional parties of the left no longer represent the working and lower middle classes, and that constituencies that feel unrepresented by this new partisan configuration will be drawn to populism:

“In a recent Power Point presentation, “Brahmin Left vs Merchant Right,” Piketty documents how the domination of the Democratic Party here (and of socialist parties in France) by voters without college or university degrees came to an end over the period from 1948 to 2017. Both parties are now led by highly educated voters whose interests are markedly different from those in the working class. The result, Piketty argues, is a political system that pits two top-down coalitions against each other.”

Edsall also cites Adam Bonica, a political scientist at Stanford, who argued that “inequality should be at least partially self-correcting in a democracy” as “increased inequality leads the median voter to demand more redistribution.” It has not worked that way because:

“First, growing bipartisan acceptance of the tenets of free market capitalism. Second, immigration and low turnout among the poor resulting in an increasingly affluent median voter. Third, “rising real income and wealth has made a larger fraction of the population less attracted to turning to government for social insurance.” Fourth, the rich escalated their use of money to influence policy through campaign contributions, lobbying and other mechanisms. And finally, the political process has been distorted by polarization and gerrymandering in ways that “reduce the accountability of elected officials to the majority.”

Other analysts (Edsall quotes Daron Acemoglu, an economist at M.I.T.) emphasize the role of racial hostility, the adverse effects of globalization on white manufacturing workers, and the decline in social mobility as more explanatory than Piketty’s economic analysis. And there is a constituency (Dean Baker, co-founder of the Center for Economic and Policy Research) who argue that correcting inequality requires adoption of a much broader policy agenda than Piketty’s recommended redistributive “tax and transfer” strategy. Baker calls for radical reform of exchange rates, of monetary policy, of intellectual property rights and of the financial sector as well as reform of the institutional protection of doctors, dentists, and lawyers and of corporate governance rules.

Read the article!

Bill to Expand Conservatorships

California State Senators Scott Wiener (D-San Francisco) and Henry Stern (D-Canoga Park) have proposed a bill to expand the use of conservatorships to deal with the issue of mental illness and homelessness. The bill would allow local governments to conserve individuals “who suffer from chronic homelessness, accompanied by debilitating mental illness, severe drug addiction, repeated psychiatric commitments, or excessively frequent use of emergency medical services.”

There are currently two kinds of conservatorships in California: Lanterman-Petrie-Short (LPS) conservatorships for individuals who are “gravely disabled” and thus unable to care for themselves, and probate conservatorships for individuals unable to care for themselves due to physical health issues, cognitive impairment, or elder abuse. The legislation, if successful, would create a third category specifically targeted at the at-risk homeless population. According to the authors:

“California faces an unprecedented housing affordability crisis, accompanied by significant untreated mental illness and drug addiction. These conditions, coupled with the limitations of our state and local social services, have left some counties searching for more tools to provide help and support to those Californians in the most need. In San Francisco, many of the successful programs and services have still fallen short of providing meaningful rehabilitation to a small population of residents with severe mental illness and drug addiction who are deteriorating on the city’s streets. Los Angeles faces similar challenges. The Los Angeles County Board of Supervisors is currently evaluating the efficacy and reach of their conservatorship system pursuant to a motion coauthored by Supervisors Mark Ridley-Thomas and Kathryn Barger.

Many of these people routinely use social and emergency services and find themselves in law enforcement custody, effectively converting a health issue into a criminal issue. By allowing greater flexibility to conserve these extremely disabled individuals – who are unable to make decisions for themselves – we can keep people out of the criminal justice system and focus on their health and well-being.”