Saturday, June 23, 2007

DNA exonerates man who spent 10 years in prison for rape he did not commit


James Curtis Giles is the 13th Dallas County, Texas man cleared of a crime since 2001 with DNA evidence.

The Texas Court of Criminal Appeals ruled that "no rational jury" would have convicted Giles in light of the new evidence.

Giles was released on parole in 1993, but had to register as a sex offender. Now his record is cleared and he is eligible for compensation from the State.

Texas leads the nation with 29 DNA exonerations, two more than Illinois.

Friday, June 22, 2007

Ineffective Assistance of Counsel -- The Supreme Court's ruling on when and where the claims must be litigated

These are excerpts from Massaro v. United States, Supreme Court Decision 1993, bod and underlining added for emphasis.

Petitioner now urges us to hold that claims of ineffective assistance of counsel need not be raised on direct appeal, whether or not there is new counsel and whether or not the basis for the claim is apparent from the trial record. The Federal Courts of Appeals are in conflict on this question, with the Seventh Circuit joining the Second Circuit, see Guinan v. United States, 6 F.3d 468 (CA7 1993), and 10 other Federal Courts of Appeals taking the position that there is no procedural default for failure to raise an ineffective-assistance claim on direct appeal.
Under the rule we adopt today, ineffective-assistance claims ordinarily will be litigated in the first instance in the district court, the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial. The court may take testimony from witnesses for the defendant and the prosecution and from the counsel alleged to have rendered the deficient performance. See, e.g., Griffin, supra, at 1109 (In a §2255 proceeding, the defendant “has a full opportunity to prove facts establishing ineffectiveness of counsel, the government has a full opportunity to present evidence to the contrary, the district court hears spoken words we can see only in print and sees expressions we will never see, and a factual record bearing precisely on the issue is created”); Beaulieu v. United States, 930 F.2d 805 (CA10 1991) (partially rev’d on other grounds United States v. Galloway, supra). In addition, the §2255 motion often will be ruled upon by the same district judge who presided at trial. The judge, having observed the earlier trial, should have an advantageous perspective for determining the effectiveness of counsel’s conduct and whether any deficiencies were prejudicial.
We do hold that failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under §2255.

Thursday, June 21, 2007

Ineffective Assistant of Appellate Counsel -- when appellate counsel is same as trial counsel

In a recent decision, Duncan v. Indiana, March 9, 2007, the Indiana Court of Appeals made this obvious observation (emphasis added):

The Woods court did not hold than an ineffective assistance of counsel claim must be presented by way of a post-conviction proceeding. It did say that an ineffective trial counsel argument is not lost by failure to raise it in direct appeal. . . . This refinement brought about by the Woods decision is most meaningful when appellate counsel was also trial counsel and could not be expected to assert his own incompetence on appeal.

Ineffective Assistance of Trial Counsel -- which appellate court should hear these claims?

These excerpts are taken from an Indiana Supreme Court decision in Woods v. Indiana to help our readers gain an understanding of the complexities of this particular appellate issue.

The debate is not over whether defendants have a Constitutional right to effective assistance of counsel, or that some defendants have a legitimate gripe that their attorneys did not adequately represent them. Rather, the debate is over when the claim needs to be filed -- on direct appeal or on post-conviction review.

The Indiana Supreme Court admitted its own ambivalence on this issue:

In sum, the availability of ineffective assistance of trial counsel in postconviction proceedings where it was not asserted on direct appeal is unresolved as a matter of this Court's precedent.

The purpose of Post-Conviction Review

Postconviction review supplements direct review by allowing the petitioner “to raise issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time.” . . . a single matter knowable from the trial record is waived if not presented on direct appeal.
Most recent Court of Appeals cases have held that ineffective assistance of trial counsel is generally known and available on direct appeal so long as the defendant is represented by different counsel on appeal.

Issues supporting an ineffectiveness claim can be separated into three broad categories.

1. Record errors

Some can be evaluated on the face of the trial record (“record errors”). Examples are failure to tender or object to an instruction or failure to object to inadmissible evidence where the failure is outside the range of reasonable professional judgment and its prejudicial effect is clear. In those situations, there may be no need for delay or the taking of extrinsic evidence on the competence prong of Strickland because the claim may be resolved from the face of the trial record. If so, the interest of prompt resolution of the matter favors permitting it to be raised on direct appeal. For example, in Pemberton v. State, 560 N.E.2d 524 (Ind. 1990), trial counsel aggressively litigated a motion to suppress that challenged the admissibility of a suggestive “show-up” identification, but inexplicably failed to object at trial to preserve the issue for appeal. In holding that this amounted to deficient performance, this Court reasoned that “[t]here is no conceivable rational basis upon which to predicate a decision not to object. This can in no way be characterized as a strategical or tactical decision gone awry.”

2. Extra-record errors

Issues that are not visible at all on the trial record, or that require additional record development to assess either the competence of the attorney or the prejudice resulting from the claimed error. These contentions may require an investigation of facts far beyond the record, and sometimes beyond the knowledge of either trial or appellate counsel, to establish substandard counsel performance (“extra-record errors”). Typical examples may be failure to pursue a factual defense of alibi or insanity or, as in this case, an undisclosed conflict of interest.

Other examples:

Hollonquest v. State, 432 N.E.2d 37 (Ind. 1982) and Williams v. State, 464 N.E.2d 893 (Ind. 1984) both involved an ineffective assistance claim based on trial counsel's failure to call an alibi witness. Like most failures to investigate, establishing this ground for ineffective assistance would require going beyond the trial record to show what the investigation, if undertaken, would have produced. This is necessary because success on the prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability of affecting the result.

The need for an evidentiary hearing:

For example, Hough v. State, 690 N.E.2d 267 (Ind. 1997), petition for cert. filed, __ U.S.L.W. ____ (U.S. July 23, 1998) (No. 98-5826), recently observed that a grant of summary judgment on the issue of trial counsel's effectiveness without an evidentiary hearing is “a bit unusual” because “[t]ypically . . . an ineffective assistance of counsel claim revolves around the unique facts of that case and many of those facts may exist outside of the record.” Id. at 273.

3. Hybrid errors

Finally, much confusion is generated by issues that are based on an action taken on the record, but whose evaluation requires a showing to rebut the presumption of counsel competence. An example of such a “hybrid” contention is an act or omission on the record that is perhaps within the range of acceptable tactical choices counsel might have made, but in the particular instance is claimed to be made due to unacceptable ignorance of the law or some other egregious failure rising to the level of deficient attorney performance.

The requirement of a showing of the allegedly unacceptable basis for the error derives from the presumption of attorney competence. Because we assume competence, if an action or omission is in the range of reasonable attorney behavior, it can support a claim of ineffective assistance only if that presumption is overcome by specific evidence as to the performance of the particular lawyer. Where no evidence of deficient representation is presented, therefore, the claim fails. The reasoning of trial counsel is sometimes apparent from the trial record. However, in assessing hybrid contentions it is often necessary for an additional record to be developed to show the reason for an act or omission that appears in the trial record.

The Indiana Supreme Court identified the different attitudes toward the problem of when ineffective counsel issues must be raised.

A. Use it or lose it
... the issue of trial counsel's effectiveness is known on direct appeal and therefore waived if not presented.
This view would not differentiate at all among the various types of contentions that may support a claim of ineffective assistance of counsel. There appear to be only a few states and no federal circuits adhering to that approach, cf. note 15 infra, and with good reason. As tribunals of last (or at least not first) resort, appellate courts review the work of other courts as reflected in the record. We agree with the Tenth Circuit that in the context of assessing ineffectiveness claims, typically a “factual record must be developed in and addressed by the [trial] court in the first instance for effective review.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (footnote omitted). Where the record is incomplete, the reviewing court is poorly positioned to address the merits; nor does it have any reasonable ability to engage in factfinding or take new evidence. [This] approach might be more palatable if ineffective assistance were commonly easily resolved based on the trial record, but as already noted it often is not. Nor would a blanket ban on raising ineffective assistance of counsel in postconviction proceedings be fair to the defendant. Because of the presumption of competence, extrinsic evidence is needed in many cases.

B. Defer all or only some claims
Some courts resolve these varying considerations by holding that a claim of ineffective assistance of trial counsel is waived if withheld until the collateral stage unless the petitioner has a “valid reason” for the postponement. Under this view, good cause for waiting can be shown by any one of either (1) trial counsel was also appellate counsel; (2) the claim could not be developed without new facts; or (3) at the time of the direct appeal, it reasonably appeared that new evidence would be needed, even though it has since become clear that the trial record was adequate grounds for judging the merits of the claim. Guinan, 6 F.3d at 472.

C. All or nothing
As already noted, some grounds supporting an assertion of inadequate representation will not be reasonably knowable, much less fully factually developed, until after direct appeal. For the reasons given, the doors of postconviction must be open to adjudicate ineffective assistance if it is not raised on direct appeal. The defendant must decide the forum for adjudication of the issue -- direct appeal or collateral review. The specific contentions supporting the claim, however, may not be divided between the two proceedings. The administrative disadvantages to an approach that would require the defendant essentially to split an ineffectiveness claim between record-based and other contentions also apply to voluntary bifurcation. We note again that we recently held that ineffective assistance of trial counsel is not available in postconviction if the direct appeal raises any claim of deprivation of Sixth Amendment right to counsel.

Prosecutors who knowingly convicted innocent men go unpunished

The articles in The News & Observer and The Chicago Tribune have a common theme -- Prosecutors who break the rules go unpunished. Indeed, they are often rewarded with promotions, even being appointed judges.

In one exoneration, however, someone at least attempted to make the prosecutors criminally responsible. Rolando Cruz and Alejandro Hernandez were wrongfully convicted and sentenced to death for the 1983 kidnaping, rape, and murder of 10-year-old Jeanine Nicarico in DuPage County, Illinois. Click here to read the details.

In the aftermath of the Cruz trial, a special grand jury indicted four sheriff's deputies and three former prosecutors for their roles in the Cruz case. Charges included perjury and obstruction of justice. Although a DuPage County jury acquitted these men of those charges, the County later agreed to pay $3.5 million to settle the civil rights claims that Cruz, Hernandez, and Stephen Buckley (a third defendant who had been charged in the crime) had filed in federal court.

DuPage County was punished for the misconduct, but not the 3 prosecutors who knowingly convicted innocent men.

Wednesday, June 20, 2007

Ineffective Assistance of Counsel

The current standard for determining whether a Defendant's attorney(s) provided the assistance of counsel intended by the Sixth Amendment to the Constitution comes from Strickland v. Washington 466 U.S. 668 (1984).

That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

For that reason, the Court has recognized that "the right to counsel is the right to the effective assistance of counsel."

Justice Marshall dissented from the Court's decision because he believed the guidelines the Court set for determining when Counsel has not been effective were too general.

The opinion of the Court revolves around two holdings. First, the majority ties the constitutional minima of attorney performance to a simple "standard of reasonableness." Second, the majority holds that only an error of counsel that has sufficient impact on a trial to "undermine confidence in the outcome" is grounds for overturning a conviction. I disagree with both of these rulings.
I object to the prejudice standard adopted by the Court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government's evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.

Second and more fundamentally, the assumption on which the Court's holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.

I have to agree with Justice Marshall -- even the guilty deserve due process. Because only when we give everyone due process can we tell who is guilty and who is not. In many exonerations, the wrongfully convicted person was "manifestly guilty" based on the State's case against them.

Most Americans have more fear of a guilty person getting off through the efforts of a shyster Defense attorney than they do of an innocent person being convicted.

Tuesday, June 19, 2007

Prosecutorial Misconduct exposed by the Chicago Tribune

I ran this article in the PWC Newsletter, and re-run it here for the sake of those who were not getting the newsletter at the time.

The Chicago Tribune (10-14 Jan, 1999) ran a scathing series of articles exposing the role of prosecutors in wrongful convictions in the United States in general, but especially in Illinois.

The titles of the 5 articles are:

Introduction to the Series (Jan 10, 1999)
Flip Side of a Fair Trial (Jan 11, 1999)
Justice in DuPage County - Cruz (Jan 12, 1999)
Putting Defendants on Death Row (Jan 14, 1999)
The Rewards of Railroading (Jan 14, 1999)

True to the website introduction, Ken Armstrong and Maurice Possley open their series of articles with a scathing rebuke:

With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases.
They have prosecuted black men, hiding evidence the real killers were white.
They have prosecuted a wife, hiding evidence her husband committed suicide.
They have prosecuted parents, hiding evidence their daughter was killed by wild dogs.
They do it to win.
They do it because they won't get punished.
They have done it to defendants who came within hours of being executed, only to be exonerated.

A Gross Injustice -- The Donna Justice story

How ironic that Donna's last name is Justice. This is perhaps the most outrageous story of prosecutorial misconduct identified by the November 2003 "Justice Withheld" series in The News & Observer. You can read the entire story, "Woman robbed of freedom, love" by clicking here, but these are the highlights:

On September 17, 1978, Willard Setzer, the only security guard in Waynesville, North Carolina, was murdered in a doctor's office. David Hugh Chambers admitted his role in the murder, and implicated Donna Justice (the driver of the getaway car), her brother Elliott Rowe, and her former boyfriend Mitch Pakulski.

Justice, Rowe, and Pakulski had a convincing alibi--they were in Toledo, Ohio at a birthday party for Everett Rowe. They produced 14 alibi witnesses in an Ohio court to fight the arrest warrant and convince the Judge beyond reasonable doubt that they were not in North Carolina at the time. And they subsequently convinced a federal judge.

The tide changed, however, in March 1984 when a federal appeals court sent the three to North Carolina for trial. In spite of 19 witnesses to affirm her presence in Toledo, Ohio, the night of the murder, and the testimony of Waynesville Assistant Police Chief Coleman Swanger who drove by the scene about the time of the break-in and whose observations contradicted Chambers' testimony, Justice was convicted and sentenced to 150-300 years in prison. It took three trials, but Rowe and Pakulski were finally convicted and both sentened to life in prison.

Marcellus Buchanan was the district attorney who prosecuted the three. And these are the evil tactics he employed to obtain the convictions.

  • Buchanan did not disclose that his star witness, David Hugh Chambers, had been promised "first class treatment" by investigators or that he had been granted total immunity.

  • To rebut the alibi witnesses, Buchanan used John Holcombe, a part-owner of a nightclub who said he saw Justice, Rowe, and Pakulski in town one day before the murder. Just days after telling this story to investigators, the Waynesville police hired Holcombe despite Holcombe's felony record, which was against State law. Holcomb testified in uniform.

  • After Justice was convicted, Buchanan engineered a gubernatorial pardon for Holcombe. He wrote to Governor Jim Hunt in May 1984, asking him to wipe Holcombe's felony record clean. Seven law enforcement and court officials, including Robert Burroughs, the trial judge, also wrote to the Governor. Holcombe was eventually pardoned by Governor Jim Martin.

  • Buchanan did not disclose Holcombe's felony record or the pardon request to Defense counsel.

  • During Pakulski's and Rowe's first trial, Buchanan announced he would arrest the 19 alibi witnesses who testified for Justice. Buchanan said he would charge each with multiple counts of perjury if they returned to North Carolina. Few returned to testify.

In 1987, the North Carolina Supreme Court reversed Rowe's and Pakulski's convictions. Instead of trying them again, the Attorney General's office persuaded the judge to sentence Rowe and Pakulski on the robbery and breaking an entering conviction that the Supreme Court had not thrown out. They were sentenced to 20 years.

Finally in 1997 a lawyer with the N.C. Prisoner Legal Services looked at Justice's case. She found the evidence of the prosecutorial misconduct and filed an appeal for Justice, Rowe, and Pakulski. The new district attorney offered a deal -- the three could plead guilty to a single count of breaking and entering, they would be sentenced to five years, which each of them had already served, and they would be free that day. On April 6, 1998, they each pled no contest and walked out of court free.

But were they free? Justice had a 5-month old baby when she was arrested, a daughter who grew up in a broken home. "I know my dad thought she was innocent, but I've seriously hated my mom my whole life. How could she go out and commit that crime when she had a little baby." Can that 20-year experience be erased, and that relationship made whole?

The no-contest plea is a felony conviction that brings every job application to a halt. Justice works at a convenience store for minimum wage and no benefits. She's attempted suicide and spent years on anti-depressants.

Chambers got his preferential treatment and immunity; Holcombe got his job with the police and his pardon; Buchanan got his convictions. But what about Justice?

Monday, June 18, 2007

Greta Van Susteren Comments on Nifong

Not surprisingly, Greta Van Susteren has something to say about Nifong's hearing. I find these words particulary wise and timely:

Nifong is reported to have said early on in the investigation something like "Why do [the players] need lawyers if they are innocent?" He was suggesting that hiring a lawyer is proof or evidence of guilt. The answer to his question is obvious: To protect themselves from a rogue prosecutor determined to indict them, convict them and send them to prison for 30 years. Yes, they needed lawyers — they really needed lawyers! I emphasize this because I want to remind you not to assume guilt simply because someone has hired a lawyer. Innocent people need lawyers — big time — and this is the perfect example.

And she raises this very important issue . . .

I don't know about you, but I am still waiting to hear from the other prosecutors in Nifong's office. What did they know and when? Remember, these are not just coworkers, these are officers of the court. They are lawyers and likewise they have responsibilities. If I were the North Carolina Bar, I would begin asking them questions. If they knew, shame on them and they need other jobs. We need courageous prosecutors, not cowards or worse.

A lot of people failed Justice and Truth in this fiasco . . .

Sunday, June 17, 2007

Nifong: Comments of Disciplinary Panel’s Chairman

Courtesy of the New York Times, a transcript of the comments by F. Lane Williamson, chairman of the disciplinary panel that voted unanimously to disbar Michael Nifong, has been made public.

I quote from the transcript:

We have found as aggravating factors dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge wrongful nature of conduct — in the respect of the handling of the DNA evidence; we do find that he has made some acknowledgement of his wrongful conduct in regard to the pretrial statements — the vulnerability of the victim — or the victims in this case and primarily the victims are the three young men who were wrongfully charged. And we find also as an aggravating factor substantial experience in the practice of law.

As mitigating factors we find absence of a prior disciplinary record, a reputation for character. We expressly find that the aggravating factors outweigh the mitigating factors.

Williamson and the panel concluded that Nifong's actions are an "aberration," both in Nifong's career and the way justice is handled in North Carolina.

We believe this conclusion may be too hasty. We believe every conviction obtained by Nifong should be investigated -- that is the only assurance we have that his behavior in the Duke case is truly an aberration. Yes, good people do bad things, and there's always a first time. The Duke case may have been Nifong's first, but it is not wise to just assume it is. An investigation into all of Nifong's convictions must prove that it is.

And, based on the November 2003 series "Justice Withheld" by The News & Observer, North Carolina's system of Justice is much more plagued with similar tactics by DAs than the Williamson and the Panel wants to admit.