Monthly Archives: May 2017

Annals of Misconduct, Cont.

A “colossal screw-up” is the description in this NPR story about Reddy Annappareddy, the owner of a pharmacy delivery business who was convicted in 2014 of fraud, billing government health insurance programs for expensive prescription pills to treat HIV and cancer that customers never received. The only problem: he didn’t do it. Amongst other misconduct, the prosecution presented false evidence, claiming millions of dollars in losses, when in fact there was a a surplus (government experts had double counted and made other basic mistakes); subpoenaing records from the wrong telecommunications provider; and destroying evidence in the form of delivery signature logs that showed that patients had in fact received prescriptions where one of the main prosecution claims in the case was that they were not.

On appeal, Judge George Russell found the government team had violated Annappareddy’s right to due process. He said the conduct by federal prosecutors and agents “does shock the conscience of this court.” And he dismissed the prosecution with prejudice, meaning the Justice Department could not bring the case again.

The Justice Department has an Office of Professional Responsibility that investigates misconduct. According to the Department, between 2014 and 2016, the OPR closed 71 cases. Fifty of them resulted in findings of intentional misconduct or bad judgment.


Another Juvenile “Confession” Turns Out To Be Coerced – After 24 Years in Prison.

A Chicago man sentenced to life in prison for a double-murder conviction will be freed this Wednesday. The conviction, 24 years ago, was based on faulty expert testimony and a “confession” that the defendant, Adam Grey – then a juvenile – argued was coerced.

Here is how Adam described the confession:

“…after six hours of interviews, Detective Crescenzo came in and spoke to him alone. “He said, ‘Look, man, I believe you, I believe that you didn’t have anything to do with it. The only way you’re going to get out of it is if you basically say that you did it,’” Gray said. “So I said, ‘OK, I did it.’”

As for the arson evidence, the Appellate Court of Illinois granted a joint motion to drop the indictment against Gray on the basis that:

“Following a thorough, independent investigation, the Cook County State’s Attorney has concluded that Mr. Gray’s 1996 convictions were based on flawed trial testimony from purported experts in the field of fire investigation and are no longer valid,”

“Scientific advances since the time of trial have proven that the fire investigators’ testimonies — while based on beliefs that were widely held in 1996 — were erroneous under current scientific knowledge,”

“Why Innocent People Plead Guilty,” Redux

The Atlantic discusses the problem with plea bargaining: excessive prosecutorial power and over criminalization result in innocent people pleading guilty. The National Registry of Exonerations reports that of 2,006 recorded exonerations since the project started keeping track in 1989, 362 of those, or 18 percent, were based on guilty pleas.

The article discusses some possible solutions to make plea bargaining either more accountable or less common. They suggest the process could be altered to afford defendants more protection, or the jury trial could be simplified to ensure more people take advantage of this right.

1: Regulate the process. “Plea bargaining in the United States is less regulated than it is in other countries,” said Jenia Turner, a law professor at Southern Methodist University who has written a book comparing plea processes in several U.S. and international jurisdictions. As a result, states are independently adopting measures to inject the process with more transparency here, more fairness there. In Connecticut, for example, judges often actively mediate plea negotiations, sometimes leaning in with personal opinion on an offer’s merit. In Texas and North Carolina, along with a few other states, both sides share evidence prior to a plea.

2. More trials.  A half-step in this direction has long been practiced in Philadelphia, where bench trials—before a judge but no jury—are common. By avoiding the jury-selection process, known as voir dire, bench trials dramatically shorten the length of the proceedings while a defendant’s guilt must still be proven beyond a reasonable doubt. In 2015, excluding cases that were dismissed, only 72 percent of criminal defendants in Philadelphia pled guilty, as opposed to 97 percent federally; 15 percent pursued a bench trial.


3. Expand the scope of bargaining. John Rappaport, a law professor at the University of Chicago, proposes a more radical idea: If pretrial bargaining with the prosecutor is going to take place, it should embrace more than the basic exchange of guilt for leniency. Defendants should be able to bargain across the trial process itself, offering simplicity in exchange for a lesser charge. What if a defendant agreed to a trial before six or three jurors, instead of 12? Or what if the standards of evidence were downgraded, from beyond a reasonable doubt to a preponderance of the evidence?

“It’s all fairly straightforward, and wouldn’t require any real administrative framework, but it’s foreign,” Rappaport said. “If a defense lawyer approached a prosecutor and said, ‘Hey, let’s do away with voir dire and take the first 12 jurors who walk in the room,’ the prosecutor would be taken aback.”

Texas Tries Prosecutor For Misconduct

In a case where an innocent man was convicted – and executed – in a case based on junk science and incentivized snitch testimony, the prosecutor himself is now facing charges brought by the State Bar of Texas. The prosecutor, John Jackson – later a judge – is charged with violating basic legal ethics in connection with his conduct in the death penalty trial of Cameron Todd Willingham, who was convicted and ultimately executed for what the state insists was the December 1991 arson-murder of his three young children in the home they shared just over a mile away.

The junk science was the “expert” testimony about the fire: there is now little question that the fire that killed Willingham’s children was not arson. The state in the original case claimed the fire was caused by Willingham spreading lighter fluid around his house and setting it ablaze. Leading fire scientists have weighed in to say that the evidence the Corsicana Fire Department and Texas fire marshal investigator relied upon in fingering Willingham as the cause of the deadly blaze was based on outdated, discredited fire-science folklore.

The snitch testimony: prosecutor Jackson called a man named Johnny Webb to testify at Willingham’s 1992 trial to say that while he was locked up in the county jail on an aggravated robbery charge, his fellow inmate, Willingham, randomly, and in detail, confessed to Webb his alleged crime. Under questioning by Jackson, Webb asserted that he did not expect any benefit in exchange for his incriminating testimony.

In the years since Willingham’s 2004 execution, significant evidence has come to light indicating that was untrue. Records amassed by the bar association and the Innocence Project — including lengthy correspondence between Jackson and Webb spanning roughly a decade — strongly suggest not only that it was at least implied to Webb that he would receive a reduced sentence for his testimony, but also that Jackson went to great lengths to make that happen. Moreover, Webb now insists that his trial testimony was false and compelled by Jackson.

Montana Passes Misdemeanor Expungement Law

On April 13, Montana Governor Steve Bullock signed HB 168, which gives Montana courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. Montana is now the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. HB 168 is particularly broad compared to many other expungement statutes across the country in that is does not exclude certain types of minor offenses (e.g., Missouri‘s new expungement law excludes violent, sex, and driving offenses) or offer only limited relief (e.g., New York’s new sealing statute allows access for a variety of purposes), Montana’s law gives anyone convicted of misdemeanors, no matter how many or how serious, a one-time opportunity to clear their record entirely. The new law provides that expungement means “to permanently destroy, delete, or erase a record of an offense from the criminal history record information system maintained by the department of justice in a manner that is appropriate for the record’s physical or electronic form.” There is no exception for law enforcement, much less for licensing or employment, and only a person’s fingerprints remain “for investigative purposes.”

For all but certain specified serious crimes, expungement is “presumed” unless “the interests of public safety demand otherwise” — if five crime-free years have passed since completion of sentence, or if the petitioner is seeking opportunities for military service that are otherwise closed to him and is not currently charged with a crime. The presumption in favor of relief absent a public safety finding is similar to the new Missouri and Indiana expungement laws.


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