Judge Rakoff of the Southern District of New York talks about how judges tolerate or encourage injustice in an interview with Joel Cohen – author of  “Broken Scales: Reflections on Injustice” – in the ABA Journal:

“I think too many courts have been too quick to leave unchallenged—and even unthought about—certain kinds of evidence that historically have been produced in criminal cases and that should have been subjected to greater scrutiny. For example, a great deal of forensic science has now come under scrutiny from the scientific community. In 2009, the National Academy of Sciences published a report that was highly critical of most forensic science other than DNA. And this included things well-regarded by many people—fingerprinting, hair analysis, bite-mark analysis, arson analysis and so forth. But before and even after that report, very few judges critically analyzed the forensic science that was being presented to them.”

The reasons, according to Judge Rakoff, are: high workloads that don’t leave time for adequate reflection; too many cases that are alike, leading judges to assume that the next case is just like the other 55 they’ve seen (Innocence Project exonerations are filled with examples of that—where judges were totally blind to suggestions that this particular defendant might be not guilty, or might not be as guilty as others in cases that the judge had seen before); and that so many judges are former prosecutors and so few are former defense counsel.

The Sixth Circuit Court of Appeals in Kentucky Court has overturned a lower court dismissal and allowed a malicious prosecution case against Kentucky officials to go forward. The case was brought by Susan King, who was wrongfully convicted of murder after a police detective went to extraordinary lengths to incriminate her, even when the evidence said otherwise. The details of the case are set out at length in the Marhall Project’s “About the Gun-toting, One-legged Kentucky Woman Seeking Justice…”, found here.

The 1st District Court of Appeal reversed the murder conviction of an Oakland man, finding the Alameda County DA had presented material false evidence, and that fact together with defense counsel’s failure to investigate and present relevant evidence and failure to object to that prosecutorial misconduct combined to deprive the defendant of a fair trial.

Specifically, the court found that the prosecutor had argued facts not in evidence during his closing argument, disputing testimony given by a police officer as to a measurement of distance that might have supported the defendant’s theory of the case with his own assessment of the distance based on the length of a typical city block. In making repeated references to this unsupported assertion, the prosecutor implied that the alternative suspect in the case was simply too far away to have been the shooter. Other comments by the prosecutor about the shooter’s height and the defendant’s clothing during closing were also problematic.

The DA also  failed to correct false evidence at trial, including  testimony that gave the false impression that an alternative suspect had been ruled out after a thorough investigation by police, and false testimony from a key eyewitness that she had identified the defendant at a police “show-up” shortly after the crime, when in fact she had not.

The opinion highlights the ways in which prosecutors can use their uniquely powerful position to skew a set of complex and murky facts in order to present a straightforward case for guilt to a jury: such testimony, ‘although worthless as a matter of law, can be “dynamite” to the jury because of the special regard the jury has for the prosecutor…’”

The DOJ has issued guidelines for application of the Americans with Disabilities Act in the criminal justice system. The report, “Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act,”explains how Title II of the ADA applies to individuals with mental health disabilities and intellectual and developmental disabilities in the criminal justice system.  Under the ADA, state and local government criminal justice entities—including police, courts, prosecutors, public defense attorneys, jails, juvenile justice, and corrections agencies—must ensure that people with mental health disabilities are treated equally and are afforded equal opportunities to benefit from safe, inclusive communities.  Nondiscrimination requirements, such as providing reasonable modifications to policies, practices, and procedures and taking appropriate steps to communicate effectively with people with disabilities, also support the goals of ensuring public safety, promoting public welfare, and avoiding unnecessary criminal justice involvement for people with disabilities.

The report includes examples of instances where improved coordination and collaboration between criminal justice entities and disability service systems has generated positive community outcomes, improved policies, and more effective training.