By Guy Gravenson
My cousin Guy, who lives in Mexico, decided to get into our little debating gig about whether anything good is likely to come from trying to teach corporate responsibility to some of the most irresponsible executives on earth. Here’s his take:
What is missing in all this back and forth, Bill, is the question of education, K-12. Educating the young. You suddenly don't come to a new set of ethics or morals as a grown person. You learn that in your formative years. And if you haven't learned it by high school, you get some standin to take your test or a crib sheet or hidden cell phone to slide you the answers. Corruption starts as soon as the teacher's back is turned.
A solution? Leave K-6 pretty much as it is now, a time to learn basic skills, to socialize and get into sports, and keep the brats out of the house for half a day for the parents to recover. At middle-school time, give all kids a FREE tablet (Kindle or iPad, whatever).
The tablet has no phone, no internet, so social networking sites. Just lessons, a library to get the answers -- and a connection to an adult mentor from the school. Kids work on their own or with peers to complete the lessons, whether programmed learning, multiple choice or composition. This is basic middle school stuff ... English, Math, Social Studies, Science, Civics (ethic lessons here), Second language...etc. Tests are taken back at the school, supervised, serious. If you fail a course you have to repeat it over the summer to graduate middle school. Then you hand back your tablet in exchange for a cap and gown.
Graduates go on to virtual High School. There can be a real high school in the neighborhood, of course, but students need only to check in to meet with teachers one-to-one and to do group assignments, social stuff. There are no class hours, except appointment times. The High School becomes a study hall. Again, all lessons are on individual FREE tablets, but these are not interchangable. They have a fingerprint match entry and other safeguards against theft/plagiarism. You carry it with you for 4 years. How fast you get through HS is up to you. You work at your own speed ... you take pop quizzes for your own edification. You just have to pass Government Regent tests -- standardized national tests (not State tests) on your climb out of high school. You have to pass 5 core subjects, and 5 elective subjects in each of those 4 years. Core manditory subjects: English composition, Math (algebra, geometry, trig,) Science (biology, chemistry, physics) Second Language, and American History. 5 elective subjects can be anything from logic to computer literacy, to theatre, to basic business administration, -- or anything teachable that interests the young person. So you need 40 credits to graduate High School -- and an optional 10 additional points in a particular field of interest or out-of-school volunteer/intern work that will go a long way to get you into college. After you pass your 40 credits, you have to take a day's worth of tests on everything you've learned (a comprehensive, like an S.A.T.) and an interview before a body of educators who will try to give you insight on where they think you should go next. Even help exceptional students to get to the college of their choice.
Of course, you can drop out whenever you want -- and clean off tables at Wendy's.
Tuesday, July 17, 2012
Saturday, July 14, 2012
Corporate Social What?
By William Fisher
The misconduct of the financial industry no longer surprises most Americans. Only about one in five has much trust in banks, according to Gallup polls, about half the level in 2007. And it’s not just banks that are frowned upon. Trust in big business overall is declining. Sixty-two percent of Americans believe corruption is widespread across corporate America. According to Transparency International, an anticorruption watchdog, nearly three in four Americans believe that corruption has increased over the last three years. (New York Times, July 12, 2012)
A good friend of mine is trying to teach corporate social responsibility on the heels of Libor and so many, many other shameful deceptions – or worse . That must be like flying into the eye of the hurricane on a mosquito. The perfect storm caused not only by banking and financial interests, but also by manufacturers, service companies, just about everyone whose mission is the turn a profit.
What in the world could you be teaching them? Maybe your focus is on what they could do to become socially responsible that they clearly are not doing now?
In all honesty, I would be hard put to name a single company I felt was and had been acting in a socially responsible manner. In fact, I’d do much better with the inverse proposition. No shortage of villains out there!
Back in the 70s and 80s I used to lecture and write a lot about CSR. Back in the those days, we were able to point to at least a few companies that we thought were acting responsibly – Cummins Engine, Caterpillar, General Electric, and a few others.
Huge companies couldn’t slow down to catch their breath and implement real programs; it was liberal lipservice. Smaller companies just struggled to stay afloat. And most of them didn’t.
I daresay we are now experiencing a repeat of that situation – with the added disadvantage that the people know. Thanks to the web, 24-hour news cycles, etc. companies acting irresponsibility have no place to hide.
The usual sponsorships of social services, educational, athletic, and artistic programs looked to be tinier than usual in relation to what needed to be done. Most of these are good programs, well thought-out. But they are implemented largely in isolation, with little coordination among donors and sponsors.
And as one after another after another of those donors is exposed as corner-cutting, smarmy-talking prevaricators caught with both hands in the cookie jar, so the American public loses what little faith it may once have had in the indestructible pillars of American capitalism.
What to do? Nothing? Not acceptable!
So I found myself thinking the most simplistic, eighth-grade solution. And knowing that my economist friends would be all over me in a nano-second.
So, being a rabid risk-taker, I posited the following:
Ten of millions of people are out of work.
Big multinational companies and financial institutions are stuffed with cash they borrowed at zero interest from the Fed.
They are not lending that money; they are sitting on it until demand rises for their products and services.
The longer they sit on it, the more the banks love them.
But suppose President Obama did something really off the wall?
Suppose he sat down with the shareholders of the Fortune 500 and tried to persuade them each, for a period of time, to take a 50% haircut on the profits they’re now making on the stocks and bonds of these dinosaurs. Corporations and banks would put their cash to work by hiring unemployed people – starting with those fired or furloughed when the economy tanked. The government would subsidize any losses these investors would incur.
And here comes the big IF. The government would need to be trusted as the rescuer of last resort.
If, by some miracle of alchemy, charisma, and pragmatism, the FatCats agreed, a lot of folks would have jobs again – not makework, not entry-level no-income internships, but real jobs to put real meals on the table and be able to afford to pay real mortgages, and jobs that opened up the possibility of the industrial and financial innovation that seems to have gotten lost in the past decade.
Now, dear readers, tell me the many reasons this won’t work!
First to weigh in was Chip Pitts, who happens to be the friend who’s lecturing on CSR at Oxford this summer. Here’s his take:
“I think that something like this could be part of the solution, a la the New Deal, but you’re right that the economists would object, and likely on grounds that those jobs are (“the market has spoken”) no longer needed, by definition, since they’re not there and (from the companies’ standpoint and the economy’s standpoint the economy is still working pretty well for the elites). Thus, there is a legitimate concern that this could result in ‘makework’.”
He continued: “Some of that would be OK, but it would be better if we found work for people in new jobs that could stand on their own in this increasingly competitive global environment. It would thus seem to me to be more a priority to think about how to rejigger and restart the economy using methods calculated to create new technologies and jobs that are definitely needed for the sectors likely to be most in demand in the future which also have social and environmental purpose.”
He added, “CSR and rights-based businesses can spur some of that by creating new products, services, and business models, like GE’s Ecomagination and Healthmagination, Unilever’s Shakti program, Grameen Danone’s joint venture, etc. But we also need lots of other old and new ideas, including continuing education, job training, starting entirely new social enterprises and small business – all which might be better, more sustainable and resilient investments and approaches.”
I’m sorry to be such a sourpuss, but I can’t resist pointing out that all these proposed initiatives are spoken in the future tense. Maybe they’re going to happen someday, but they haven’t happened yet. Yet now is when they are most needed. What have we been doing since 2008 and well before?
Well, it took a bone fide economist to shake me from my torpor. He came in the person of Dr. Jack N. Behrman, Associate Dean Emeritus at the University of North Carolina Business School. In his usual characteristic plain-speaking language, this non-academic academic delivered this IED:
“Now, who is going to do what about it -- what with the big financiers corrupting Congress and the Supreme Court? They are interested in only one thing -- jimmying the election and then the U.S. economy so they control it for their own selfish reasons. No sense of ‘noblesse oblige’--nor social responsibility, and B-school faculty have come to their senses too late, having mushed the brains of their students with ‘profit-maximization’ goals.”
A somewhat more hopeful note was struck by another old friend reader, Ludwig Rudel, who ran a successful property business after serving as one of the first American development specialists ever deployed to South Asia.
Lu asks:
“Who possibly can be against enhancing corporate social responsibility? It is asking others to behave better! No cost to me! Next you will try to reform or eliminate prostitution. Good Luck.”
“Me ... I prefer incentives. It is generally thought that the unemployment problem will not go away until the housing sector is stabilized. I have been waiting four years for our President to do something ‘off the wall to solve that.”
“How about this? FNMA will buy any and all of a bank's mortgages, either performing or non-performing, for homes still occupied by mortgagees for 80% of the outstanding principal, excluding penalties and fees, (no appraisal required) if the bank can prove they actually own the mortgage. FNMA can then offer to rewrite the house owner's mortgage paper at that (80%) value, for the first 5 years at an APR of 2%, the second 5 years at 4% and the last 20 years at 6% (since FNMA can obtain short term funds at virtually 0%). Then, for those mortgagees that such terms still can't be made to work, FNMA will handle foreclosure at its own cost.
“Such mortgages would be very affordable and attractive to owners. The banks would get out from under. It costs them more than 20% to foreclose. The cost to the taxpayer would be minimal.”
“Maybe it would be possible to persuade the banks that they will get brownie points on their social responsibility ledger for doing this.”
OK, but at this rate accumulating enough Brownie points is going to take a while. Maybe we should try Girl Scout Cookies?
Then comes the coup de grace. Artist Tony Benn, my favorite Marxist didact, blind-sides me with this:
“Without wanting to sound totally defeatist but most likely post-Marxist. Capital has and will always be amoral. Teaching it morality will always be sinking water into the desert of morality. The point of the State whichever one we can elect coherently and cohesively is to ameliorate the worst excesses of Capital. Until we all wake up to that awful but sobering realization then expecting a CEO to change the mindset of two centuries that started with the French revolution we are just dealing with the chimera and the spectacular nature of Capital.”
He adds: “And yes, this is the post-Marxist bit, until the contradictions of Capital are revealed or better still betrayed to itself not much is likely to happen. When the generals stop obeying orders of the ruling classes then the image cracks. Vis, the revolutions such as they are in the North Africa crescent. The Syrian general class jumping ship...pip pip!
If the ancient Greek philosopher Diogenes were to go out with his lantern in search of an honest many today, a survey of Wall Street executives on workplace conduct suggests he might have to look elsewhere.
A quarter of Wall Street executives see wrongdoing as a key to success, according to a survey by whistleblower law firm Labaton Sucharow released on Tuesday.
In a survey of 500 senior executives in the United States and the UK, 26 percent of respondents said they had observed or had firsthand knowledge of wrongdoing in the workplace, while 24 percent said they believed financial services professionals may need to engage in unethical or illegal conduct to be successful.
Sixteen percent of respondents said they would commit insider trading if they could get away with it, according to Labaton Sucharow. And 30 percent said their compensation plans created pressure to compromise ethical standards or violate the law.
The misconduct of the financial industry no longer surprises most Americans. Only about one in five has much trust in banks, according to Gallup polls, about half the level in 2007. And it’s not just banks that are frowned upon. Trust in big business overall is declining. Sixty-two percent of Americans believe corruption is widespread across corporate America. According to Transparency International, an anticorruption watchdog, nearly three in four Americans believe that corruption has increased over the last three years. (New York Times, July 12, 2012)
A good friend of mine is trying to teach corporate social responsibility on the heels of Libor and so many, many other shameful deceptions – or worse . That must be like flying into the eye of the hurricane on a mosquito. The perfect storm caused not only by banking and financial interests, but also by manufacturers, service companies, just about everyone whose mission is the turn a profit.
What in the world could you be teaching them? Maybe your focus is on what they could do to become socially responsible that they clearly are not doing now?
In all honesty, I would be hard put to name a single company I felt was and had been acting in a socially responsible manner. In fact, I’d do much better with the inverse proposition. No shortage of villains out there!
Back in the 70s and 80s I used to lecture and write a lot about CSR. Back in the those days, we were able to point to at least a few companies that we thought were acting responsibly – Cummins Engine, Caterpillar, General Electric, and a few others.
Huge companies couldn’t slow down to catch their breath and implement real programs; it was liberal lipservice. Smaller companies just struggled to stay afloat. And most of them didn’t.
I daresay we are now experiencing a repeat of that situation – with the added disadvantage that the people know. Thanks to the web, 24-hour news cycles, etc. companies acting irresponsibility have no place to hide.
The usual sponsorships of social services, educational, athletic, and artistic programs looked to be tinier than usual in relation to what needed to be done. Most of these are good programs, well thought-out. But they are implemented largely in isolation, with little coordination among donors and sponsors.
And as one after another after another of those donors is exposed as corner-cutting, smarmy-talking prevaricators caught with both hands in the cookie jar, so the American public loses what little faith it may once have had in the indestructible pillars of American capitalism.
What to do? Nothing? Not acceptable!
So I found myself thinking the most simplistic, eighth-grade solution. And knowing that my economist friends would be all over me in a nano-second.
So, being a rabid risk-taker, I posited the following:
Ten of millions of people are out of work.
Big multinational companies and financial institutions are stuffed with cash they borrowed at zero interest from the Fed.
They are not lending that money; they are sitting on it until demand rises for their products and services.
The longer they sit on it, the more the banks love them.
But suppose President Obama did something really off the wall?
Suppose he sat down with the shareholders of the Fortune 500 and tried to persuade them each, for a period of time, to take a 50% haircut on the profits they’re now making on the stocks and bonds of these dinosaurs. Corporations and banks would put their cash to work by hiring unemployed people – starting with those fired or furloughed when the economy tanked. The government would subsidize any losses these investors would incur.
And here comes the big IF. The government would need to be trusted as the rescuer of last resort.
If, by some miracle of alchemy, charisma, and pragmatism, the FatCats agreed, a lot of folks would have jobs again – not makework, not entry-level no-income internships, but real jobs to put real meals on the table and be able to afford to pay real mortgages, and jobs that opened up the possibility of the industrial and financial innovation that seems to have gotten lost in the past decade.
Now, dear readers, tell me the many reasons this won’t work!
First to weigh in was Chip Pitts, who happens to be the friend who’s lecturing on CSR at Oxford this summer. Here’s his take:
“I think that something like this could be part of the solution, a la the New Deal, but you’re right that the economists would object, and likely on grounds that those jobs are (“the market has spoken”) no longer needed, by definition, since they’re not there and (from the companies’ standpoint and the economy’s standpoint the economy is still working pretty well for the elites). Thus, there is a legitimate concern that this could result in ‘makework’.”
He continued: “Some of that would be OK, but it would be better if we found work for people in new jobs that could stand on their own in this increasingly competitive global environment. It would thus seem to me to be more a priority to think about how to rejigger and restart the economy using methods calculated to create new technologies and jobs that are definitely needed for the sectors likely to be most in demand in the future which also have social and environmental purpose.”
He added, “CSR and rights-based businesses can spur some of that by creating new products, services, and business models, like GE’s Ecomagination and Healthmagination, Unilever’s Shakti program, Grameen Danone’s joint venture, etc. But we also need lots of other old and new ideas, including continuing education, job training, starting entirely new social enterprises and small business – all which might be better, more sustainable and resilient investments and approaches.”
I’m sorry to be such a sourpuss, but I can’t resist pointing out that all these proposed initiatives are spoken in the future tense. Maybe they’re going to happen someday, but they haven’t happened yet. Yet now is when they are most needed. What have we been doing since 2008 and well before?
Well, it took a bone fide economist to shake me from my torpor. He came in the person of Dr. Jack N. Behrman, Associate Dean Emeritus at the University of North Carolina Business School. In his usual characteristic plain-speaking language, this non-academic academic delivered this IED:
“Now, who is going to do what about it -- what with the big financiers corrupting Congress and the Supreme Court? They are interested in only one thing -- jimmying the election and then the U.S. economy so they control it for their own selfish reasons. No sense of ‘noblesse oblige’--nor social responsibility, and B-school faculty have come to their senses too late, having mushed the brains of their students with ‘profit-maximization’ goals.”
A somewhat more hopeful note was struck by another old friend reader, Ludwig Rudel, who ran a successful property business after serving as one of the first American development specialists ever deployed to South Asia.
Lu asks:
“Who possibly can be against enhancing corporate social responsibility? It is asking others to behave better! No cost to me! Next you will try to reform or eliminate prostitution. Good Luck.”
“Me ... I prefer incentives. It is generally thought that the unemployment problem will not go away until the housing sector is stabilized. I have been waiting four years for our President to do something ‘off the wall to solve that.”
“How about this? FNMA will buy any and all of a bank's mortgages, either performing or non-performing, for homes still occupied by mortgagees for 80% of the outstanding principal, excluding penalties and fees, (no appraisal required) if the bank can prove they actually own the mortgage. FNMA can then offer to rewrite the house owner's mortgage paper at that (80%) value, for the first 5 years at an APR of 2%, the second 5 years at 4% and the last 20 years at 6% (since FNMA can obtain short term funds at virtually 0%). Then, for those mortgagees that such terms still can't be made to work, FNMA will handle foreclosure at its own cost.
“Such mortgages would be very affordable and attractive to owners. The banks would get out from under. It costs them more than 20% to foreclose. The cost to the taxpayer would be minimal.”
“Maybe it would be possible to persuade the banks that they will get brownie points on their social responsibility ledger for doing this.”
OK, but at this rate accumulating enough Brownie points is going to take a while. Maybe we should try Girl Scout Cookies?
Then comes the coup de grace. Artist Tony Benn, my favorite Marxist didact, blind-sides me with this:
“Without wanting to sound totally defeatist but most likely post-Marxist. Capital has and will always be amoral. Teaching it morality will always be sinking water into the desert of morality. The point of the State whichever one we can elect coherently and cohesively is to ameliorate the worst excesses of Capital. Until we all wake up to that awful but sobering realization then expecting a CEO to change the mindset of two centuries that started with the French revolution we are just dealing with the chimera and the spectacular nature of Capital.”
He adds: “And yes, this is the post-Marxist bit, until the contradictions of Capital are revealed or better still betrayed to itself not much is likely to happen. When the generals stop obeying orders of the ruling classes then the image cracks. Vis, the revolutions such as they are in the North Africa crescent. The Syrian general class jumping ship...pip pip!
If the ancient Greek philosopher Diogenes were to go out with his lantern in search of an honest many today, a survey of Wall Street executives on workplace conduct suggests he might have to look elsewhere.
A quarter of Wall Street executives see wrongdoing as a key to success, according to a survey by whistleblower law firm Labaton Sucharow released on Tuesday.
In a survey of 500 senior executives in the United States and the UK, 26 percent of respondents said they had observed or had firsthand knowledge of wrongdoing in the workplace, while 24 percent said they believed financial services professionals may need to engage in unethical or illegal conduct to be successful.
Sixteen percent of respondents said they would commit insider trading if they could get away with it, according to Labaton Sucharow. And 30 percent said their compensation plans created pressure to compromise ethical standards or violate the law.
Thursday, July 12, 2012
A Holocaust of FBI Law Enforcement Practices Comes to Light
By William Fisher
Back in April, this reporter did a story about the scandal that arose in the mid-1990s at the FBI criminal laboratory when it was revealed that results of forensic tests on as many as 10,000 cases had been falsified or otherwise presented to juries in ways that were scientifically unfounded and virtually guaranteed to produce guilty verdicts.
The head of the FBI and the Attorney General of the US acknowledged at the time that serious mistakes had been made. But no one ever told the defense attorneys or the defendants.
The DOJ brass formed a Task Force to investigate. They concentrated on the work of a senior forensics analyst, Michael Malone, who was dismissed. That so-called investigation went on for years. In silence.
Until yesterday, that is.
Yesterday was the day the Washington Post announced that the DOJ would now perform analyses of an undetermined number of the cases that were tried during this period and resulted in guilty verdicts. Those convicted are scattered throughout prisons all of the US. Some have completed their sentences and have been released.
Prism talked today (7/11/12) with C. Fred Whitehurst, the former FBI agent who played the pivotal role in blowing the whistle on the FBI lab. He recalled his previous talk with Prism:
“It is exactly what we were talking about a few months ago. The right angle to this is huge. The FBI is agreeing to look at 10,000 cases when in fact the FBI taught local, state and federal crime lab personnel this analytical technique for decades. That means that in this nation alone there are virtually hundreds of thousands of cases in jeopardy where forensic hair analysis was conducted. We are seeing a holocaust of law enforcement come to light which has been taking place now for decades under the nose of an unsuspecting American nation,” Whitehurst told Prism.
He added: “What changed their minds was the innocence cases in DC that recently were established. And the Washington Post article from Spencer Hsu. What you would look for as a tell in cases is if hair was the only real significant evidence that tied defendants to crimes. Guys in the lab wanting to ‘solve’ the case and be heroes might have pushed the envelope and been the guy who did what no one else could do. I have no doubt there will be more exonerations.”
Mike German of the ACLU, a former FBI Special Agent, believes the DOJ/FBI decision was triggered by pressure over failing to notify defense lawyers or judges that the forensics information was being provided only to prosecutors.
“I think the answer to your ‘why’ question is the Washington Post investigative expose from a few months ago that revealed that the FBI/DOJ had not made a significant effort to find persons convicted based on the suspect FBI forensics, “ German told Prism.
In April, the Washington Post identified two men convicted largely on the testimony of FBI hair analysts who wrongly placed them at crime scenes. The Post wrote: “The government has moved to overturn the conviction of one of the men, who was convicted of a sexual assault. A judge has vacated the conviction of the other man, who was convicted of killing a taxi driver.”
Whitehurst told Prism the FBI would not be using its old, outdated methods to analyze hair samples. He explained: “The FBI quietly changed its protocol a few years ago so that now any hairs that it matches must be then analyzed with DNA analysis.”
He added: “Sadly, though, the FBI changed its protocol realizing that the previous was seriously flawed, convicted defendants were never notified in any way at all. As for the FBI teaching local, state and federal crime lab personnel, that is true. What does that say for all the convictions based on hair analysis conducted by local, state and federal crime labs across the US?”
The Post reported that the Justice Department is partnering with the Innocence Project, a private group, to provide an independent, third-party assessment of the government’s review. The advocacy group is dedicated to reforming the criminal justice system and to exonerating the wrongfully convicted through DNA testing.
The National Association of Criminal Defense Lawyers also will work with the government on the effort.
The Post quoted former Justice Department inspector general Michael R. Bromwich, who investigated the FBI lab in the 1990s and uncovered serious problems with some FBI lab analyses, called the review “an important and necessary response to the multiple documented cases in which flawed hair microscopy analysis and testimony have led to wrongful convictions.”
The Post quoted him as saying, “Working with the Innocence Project and the National Association of Criminal Defense Lawyers is a step in the right direction. Nothing can give back the many years those wrongfully convicted defendants spent in prison, but at this point all participants in the criminal justice system — prosecutors, defense lawyers, and the courts — need to make extraordinary efforts to ferret out as quickly as possible any similar cases.”
Some close to the DOJ told Prism that there could be a connection between the speed of the FBI lab announcement and Attorney General Eric Holder’s current difficulties with Republicans in
Congress over the “Fast and Furious” operation, for which Holder has been held in contempt of Congress.
The American Bar Association wrote today that, “According to the Post, hundreds of defendants are still in prison or on parole for crimes in which FBI hair and fiber experts may have wrongly identified them as suspects. And the review of hair evidence issues focused on just one FBI agent while ignoring other problems that may have led to false evidence matches,” the story says.
The ABA added, “Justice Department officials maintain they fulfilled their legal obligations by telling prosecutors of errors and they did not need to directly contact defendants.”
DNA tests this year in two Washington, D.C., cases virtually clear a man convicted of killing a taxi driver in 1978 and completely clear a man convicted of a 1981 sexual assault. Both prosecutions relied on evidence of hair matches. But the cases weren’t included in the crime lab review. The Post has a separate story on one of the defendants, Santae Tribble, who was arrested at 17 and served 28 years in prison after his conviction, the ABA reports, adding:
“The review came too late in another case, the Post investigation found. According to a prosecution memo, Benjamin Herbert Boyle would not have been eligible for the death penalty because of problems in the FBI lab work. He was executed in 1997, a year after the investigation of the lab began.”
Back in April, this reporter did a story about the scandal that arose in the mid-1990s at the FBI criminal laboratory when it was revealed that results of forensic tests on as many as 10,000 cases had been falsified or otherwise presented to juries in ways that were scientifically unfounded and virtually guaranteed to produce guilty verdicts.
The head of the FBI and the Attorney General of the US acknowledged at the time that serious mistakes had been made. But no one ever told the defense attorneys or the defendants.
The DOJ brass formed a Task Force to investigate. They concentrated on the work of a senior forensics analyst, Michael Malone, who was dismissed. That so-called investigation went on for years. In silence.
Until yesterday, that is.
Yesterday was the day the Washington Post announced that the DOJ would now perform analyses of an undetermined number of the cases that were tried during this period and resulted in guilty verdicts. Those convicted are scattered throughout prisons all of the US. Some have completed their sentences and have been released.
Prism talked today (7/11/12) with C. Fred Whitehurst, the former FBI agent who played the pivotal role in blowing the whistle on the FBI lab. He recalled his previous talk with Prism:
“It is exactly what we were talking about a few months ago. The right angle to this is huge. The FBI is agreeing to look at 10,000 cases when in fact the FBI taught local, state and federal crime lab personnel this analytical technique for decades. That means that in this nation alone there are virtually hundreds of thousands of cases in jeopardy where forensic hair analysis was conducted. We are seeing a holocaust of law enforcement come to light which has been taking place now for decades under the nose of an unsuspecting American nation,” Whitehurst told Prism.
He added: “What changed their minds was the innocence cases in DC that recently were established. And the Washington Post article from Spencer Hsu. What you would look for as a tell in cases is if hair was the only real significant evidence that tied defendants to crimes. Guys in the lab wanting to ‘solve’ the case and be heroes might have pushed the envelope and been the guy who did what no one else could do. I have no doubt there will be more exonerations.”
Mike German of the ACLU, a former FBI Special Agent, believes the DOJ/FBI decision was triggered by pressure over failing to notify defense lawyers or judges that the forensics information was being provided only to prosecutors.
“I think the answer to your ‘why’ question is the Washington Post investigative expose from a few months ago that revealed that the FBI/DOJ had not made a significant effort to find persons convicted based on the suspect FBI forensics, “ German told Prism.
In April, the Washington Post identified two men convicted largely on the testimony of FBI hair analysts who wrongly placed them at crime scenes. The Post wrote: “The government has moved to overturn the conviction of one of the men, who was convicted of a sexual assault. A judge has vacated the conviction of the other man, who was convicted of killing a taxi driver.”
Whitehurst told Prism the FBI would not be using its old, outdated methods to analyze hair samples. He explained: “The FBI quietly changed its protocol a few years ago so that now any hairs that it matches must be then analyzed with DNA analysis.”
He added: “Sadly, though, the FBI changed its protocol realizing that the previous was seriously flawed, convicted defendants were never notified in any way at all. As for the FBI teaching local, state and federal crime lab personnel, that is true. What does that say for all the convictions based on hair analysis conducted by local, state and federal crime labs across the US?”
The Post reported that the Justice Department is partnering with the Innocence Project, a private group, to provide an independent, third-party assessment of the government’s review. The advocacy group is dedicated to reforming the criminal justice system and to exonerating the wrongfully convicted through DNA testing.
The National Association of Criminal Defense Lawyers also will work with the government on the effort.
The Post quoted former Justice Department inspector general Michael R. Bromwich, who investigated the FBI lab in the 1990s and uncovered serious problems with some FBI lab analyses, called the review “an important and necessary response to the multiple documented cases in which flawed hair microscopy analysis and testimony have led to wrongful convictions.”
The Post quoted him as saying, “Working with the Innocence Project and the National Association of Criminal Defense Lawyers is a step in the right direction. Nothing can give back the many years those wrongfully convicted defendants spent in prison, but at this point all participants in the criminal justice system — prosecutors, defense lawyers, and the courts — need to make extraordinary efforts to ferret out as quickly as possible any similar cases.”
Some close to the DOJ told Prism that there could be a connection between the speed of the FBI lab announcement and Attorney General Eric Holder’s current difficulties with Republicans in
Congress over the “Fast and Furious” operation, for which Holder has been held in contempt of Congress.
The American Bar Association wrote today that, “According to the Post, hundreds of defendants are still in prison or on parole for crimes in which FBI hair and fiber experts may have wrongly identified them as suspects. And the review of hair evidence issues focused on just one FBI agent while ignoring other problems that may have led to false evidence matches,” the story says.
The ABA added, “Justice Department officials maintain they fulfilled their legal obligations by telling prosecutors of errors and they did not need to directly contact defendants.”
DNA tests this year in two Washington, D.C., cases virtually clear a man convicted of killing a taxi driver in 1978 and completely clear a man convicted of a 1981 sexual assault. Both prosecutions relied on evidence of hair matches. But the cases weren’t included in the crime lab review. The Post has a separate story on one of the defendants, Santae Tribble, who was arrested at 17 and served 28 years in prison after his conviction, the ABA reports, adding:
“The review came too late in another case, the Post investigation found. According to a prosecution memo, Benjamin Herbert Boyle would not have been eligible for the death penalty because of problems in the FBI lab work. He was executed in 1997, a year after the investigation of the lab began.”
Tuesday, July 10, 2012
Special Administrative Measures: One Step Closer to a Police State
By William Fisher
In his most recent book, “With Liberty and Justice for Some,” Glenn Greenwald charges that the U.S. now has a two-tier justice system – one tier for ordinary defendants, another for those prominent enough to escape any form of accountability for the crimes they fomented.
As if this wasn’t reason enough for national concern, there is yet another bias being played out in our Article III Courts. Legal experts see this bias as emanating from the prosecutorial anxiety associated with the acquittal of a defendant in a terror-related trial.
The widely-popular writer for Salon.com says he expected a good deal of the fear triggered by the 9/11 attacks to have receded; instead, he says, it has grown more intense and irrational and more widely used than ever to obliterate some of the most fundamental values of constitutional law for defendants.
He is far from alone. A virtual posse of constitutional authorities have likewise concluded that we Americans have been terrified into shooting ourselves in the feet by dispensing with the very qualities that make us special.
Scott Horton, a well-respected lawyer who writes for Harper’s Online, says, “Especially after 9/11, prosecutors in what they assert are national-security cases have gained a decisive tactical advantage in court proceedings that makes a mockery of the pretense of a level playing field between prosecutors and defense counsel.”
He adds, “Prosecutors routinely flout their duties to disclose evidence that would assist the defense, and routinely make representations about the gravity of alleged threats which cannot be sustained in the courtroom and which turn out in the end to have been made on the basis of neither any evidence nor any reasonable analysis. There has been a tendency towards grandstanding that has effectively manipulated courts... and has led a good number of federal judges feeling they were deceived. But when the trial judges try to rectify this overreach, they find that conservative federal appeals court judges reverse them, demanding that they give deference to prosecutorial mumbojumbo.”
Summing up, he told Prism, “The ability of prosecutors to improperly influence trial judges is a question that sits right on the frontier of judicial independence. It would be going too far to say that American judges as a class are no longer independent, but on the other hand, particularly in national security cases, the deck has tilted decisively and improperly in favor of the prosecution.”
During the public controversy over the use of our Article III civilian court system to try terror-related defendants, the government’s legal experts were widely quoted as believing that civilian courts would provide much fairer trials for these defendants, while ensuring their conviction and imprisonment. The civilian court system was thought to be a mature institution, while Guantanamo’s Military Commissions were untried and, as one military defense attorney was told, the Military Commissions were intended to convict people.
Comparing outcomes in the two venues, there doesn’t seem to be very much qualitative difference.
One of those most infuriated by our publicity-heavy attempts to ramp up our “national security” anxieties is Dr. Jeanne Theoharis, a professor of political science at Brooklyn College. Dr. Theoharis was in the forefront of a substantial community grassroots effort to mount a robust defense for Syed Hashmi, US-born of Pakistani nationality.
Hashmi was a student of Theoharis at Brooklyn College. On the eve of his federal trial in 2009, he pled guilty to helping Al Qaeda. Hashmi, 30, was sentenced to 15 years in prison on one count of providing material support to a terrorist organization. Had he not pled, he would have faced a 70-year sentence.
The former Brooklyn College student was arrested in London in 2006. The government accused him of passing “gear” to Al Qaeda; the gear consisted of a suitcase containing rain ponchos and heavy socks.
After his arrest, he was held in twenty-three-hour-a-day solitary confinement for nearly three years. The government’s case rested on the testimony and actions of an old acquaintance of Hashmi’s who turned government informant after his own arrest.
Theoharis points to a number of specific liberties that were denied to Hashmi and other pre-trial defendants in terror-related cases. She notes with modesty that these are simply off the top of her head and attributes their application to the radical political views Hashmi embraced before he was arrested. Yet last time Prism looked this up, expressing such views was the most basic of our First Amendment freedoms.
Theoharis charges that people like Fahad Hashmi and Tarek Mehanna were targeted in part for their political speech and association, which formed part of the government's case against them. Also, she adds, in many of these cases with FBI informants, what informants are sent into mosques to listen for, initially, are people voicing opinions and ideas critical of the United States.
Tarek Mehanna is an American pharmacist serving a 17-and-a-half year prison sentence after having been convicted of conspiring to help Al Qaeda.
Following the Mehanna sentencing, the ACLU released a statement saying that the suppression of unpopular ideas is contrary to American values, and that the verdict undermines the First Amendment.
Theoharis points to the right of a defendant to see and examine the evidence against him/her. But in many of these cases, much of the evidence is classified under CIPA, the Classified Information Act, passed by Congress in 1980. CIPA presents guidelines for the use of classified information by both government and defendant in a legal case. But defendants don't get to review it.
Theoharis also sees a defendant’s right to counsel diminished in terror-related cases. She says that one of the side effects of CIPA is that lawyers often go through a CIA-level screening to be able to review the evidence but they are not allowed to share what they saw with their client. According to Theoharis, this drives a wedge into the attorney client relationship.
Punishment before conviction is one of Theoharis’s most serious concerns. Like her former student, many terror suspects spend years in pre-trial solitary confinement. This degrades their health and ability to participate in their own defense, she says.
Due process: Theoharis says that while there are ostensibly ways to challenge these conditions of confinement and the application of SAMs, almost no one succeeds in using these administrative processes to actually get their SAMs removed or conditions altered.
Right to a speedy trial: Because much of the evidence is classified in many of these cases, people are impelled to waive their speedy trial rights under the Eighth Amendment to give their counsel adequate time to review the evidence. One defendant, Sami Al Arian, has been largely locked up, in one type of facility or another, for more than nine years.
Confidentiality of attorney-client communications. Lawyers representing people accused of terror-related offenses have been notified that their working sessions with their clients are no longer confidential. This ruling was made because prison authorities feared that defendants were using their attorneys to deliver messages to their colleagues. But the ruling struck a body blow at one of the bedrock principles of legal representation. One result is that lawyers are becoming reluctant to take on the defense of terror suspects.
Numerous legal experts have commented that ordinary citizens who have been charged but not tried would be unlikely to be punished for speaking out, regardless of how radically -- because speech is protected by the Constitution. But where terrorism is involved, prosecutors and judges find themselves conflating free speech with overt action.
How has this erosion of liberties taken place? Is it government by the rule of law or the law of the Wild West? Or is it some informal ad hoc arrangement between prosecutors and jailers?
Amy Fettig, a senior counsel with the ACLU’s Prison Project, has studied the SAMs regimen and is familiar with both its content and its application by Federal authorities.
She told Prism:
“Less than two months after the September 11 terrorist attacks on the United States, the Department of Justice issued an interim rule that drastically expanded the scope of the Bureau of Prisons’ (BOP) powers under the special administrative measures (SAMs) promulgated in the mid-1990’s after the first bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma. The regulation became effective immediately without the usual opportunity for prior public comment.
“The original SAMs promulgated during the Clinton Administration allowed the government to impose special administrative measures on certain federal inmates, including solitary confinement, interception of mail, and restriction on telephone calls and visitors.
“Before imposing a SAM, the rule required a specific determination by the Attorney General that the measure was ‘reasonably necessary’ in order to deter future acts of violence or terrorism. The rule also limited the extent of a SAM by placing a 120-day time limit, renewable on reapplication in 120-day increments.
“In contrast, the SAMs re-promulgated after 9/11 are an unprecedented frontal assault on the attorney-client privilege and the right to counsel guaranteed by the Constitution.
“The current SAMs allow the Attorney General unlimited and unreviewable discretion to strip any person in federal custody of the right to communicate confidentially with an attorney. In any case in which the Attorney General believes that there is ‘reasonable suspicion’ that a person in custody ‘may’ use communications with attorneys or their agents ‘to further or facilitate acts of terrorism,’ the Director of BOP ‘shall … provide appropriate procedures for the monitoring or review of communications between the inmate and attorneys or attorneys’ agents who are traditionally covered by the attorney-client privilege…’
“It is especially disturbing that the provisions for monitoring confidential attorney-client communications apply not only to convicted prisoners in the custody of the BOP, but to all persons in the custody of the Department of Justice, including pretrial detainees who have not been convicted of crime and are presumed innocent, as well as material witnesses and immigration detainees, who are not accused of any crime.
“In addition to the broad nullification of the attorney-client privilege allowed under these BOP regulations, SAMs no longer have a 120-day time limit and the revised regulation also permit monitoring and measures that include extreme forms of social isolation, such as housing in segregation and limitations on visitation and other contact with the outside world, for one-year periods with indefinite renewal of additional one-year intervals.
“The revised BOP SAMs rules are a direct assault on the attorney-client privilege that flies in the face of our Constitution and the underlying principles of our legal system. Under the SAMs, a defendant and his counsel are confronted not just by the fear that the government is monitoring communications, but by the certain knowledge that it is doing so. Such a defendant is told that none of his communications with his attorney will be confidential – that all such communications, whether conducted in person, by mail, or by telephone, are subject to government monitoring. Under such conditions, the right to counsel as consistently defined by our courts, is essentially undermined.
“Additionally, the SAMs regulations may subject individuals, including individuals who are seriously mentally ill, to indefinitely renewable, long-term solitary confinement without any evaluation of their mental state or existing mental illness. Federal courts have consistently held that such isolation violates the Constitution when inflicted on the seriously mentally ill. This callous disregard for Constitutional protections in regulations promulgated by the U.S. Department of Justice sends a disturbing signal that automatic deference to assertions of national security is dangerously trumping our rule of law.”
Many prison experts believe SAMs, including solitary confinement, are both cruel and ineffective, and needlessly increase the anger of prisoners toward their captors.
But the Director of the Bureau of Prisons, Charles E. Samuels Jr., doesn’t see it that way.
At the very first Congressional hearing ever held on the subject of segregation, or solitary confinement under the SAMs, he explained that “SAMs are special conditions of confinement or limitation of privileges that are reasonably necessary to prevent disclosure of national security information or prevent acts of violence and/or terrorism…SAMs restrict access to mail, media, telephone, and/or visitors, depending upon the specific risk factors.”
Testifying that “this restricted form of housing applies to only a small number of inmates within the Bureau,” Samuels told the Senators that “the use of restricted housing, however limited, remains a critical management tool that helps us maintain safety, security, and effective reentry programming for the vast majority of federal inmates housed in general population.”
But that is not the issue here. The issue here is whether the justice system should be using these administrative tools to put a gag on prisoners who have every right to speak out.
The precise number of prisoners living under SAMs is difficult to know – the Bureau of Prisons will not comment. The Director of the Bureau also testified at the Senate last week that he didn’t know the exact number of mentally ill inmates locked up in the US prison system as well as the number of those living under SAMs.
The number under SAMs is thought to be about 50, with 30 of those charged with terror-related crimes. But if the Director of the Bureau of Prisons has the slightest interest in making this problem less disgraceful, he needs to begin with an accurate count.
And he needs to disclose it to the public.
Senator Durbin and the members of the Judiciary Committee hope to attract support for a full-blown review of SAMs and other administrative coercions, leading to regulations that achieve more with a lot less pain.
In his most recent book, “With Liberty and Justice for Some,” Glenn Greenwald charges that the U.S. now has a two-tier justice system – one tier for ordinary defendants, another for those prominent enough to escape any form of accountability for the crimes they fomented.
As if this wasn’t reason enough for national concern, there is yet another bias being played out in our Article III Courts. Legal experts see this bias as emanating from the prosecutorial anxiety associated with the acquittal of a defendant in a terror-related trial.
The widely-popular writer for Salon.com says he expected a good deal of the fear triggered by the 9/11 attacks to have receded; instead, he says, it has grown more intense and irrational and more widely used than ever to obliterate some of the most fundamental values of constitutional law for defendants.
He is far from alone. A virtual posse of constitutional authorities have likewise concluded that we Americans have been terrified into shooting ourselves in the feet by dispensing with the very qualities that make us special.
Scott Horton, a well-respected lawyer who writes for Harper’s Online, says, “Especially after 9/11, prosecutors in what they assert are national-security cases have gained a decisive tactical advantage in court proceedings that makes a mockery of the pretense of a level playing field between prosecutors and defense counsel.”
He adds, “Prosecutors routinely flout their duties to disclose evidence that would assist the defense, and routinely make representations about the gravity of alleged threats which cannot be sustained in the courtroom and which turn out in the end to have been made on the basis of neither any evidence nor any reasonable analysis. There has been a tendency towards grandstanding that has effectively manipulated courts... and has led a good number of federal judges feeling they were deceived. But when the trial judges try to rectify this overreach, they find that conservative federal appeals court judges reverse them, demanding that they give deference to prosecutorial mumbojumbo.”
Summing up, he told Prism, “The ability of prosecutors to improperly influence trial judges is a question that sits right on the frontier of judicial independence. It would be going too far to say that American judges as a class are no longer independent, but on the other hand, particularly in national security cases, the deck has tilted decisively and improperly in favor of the prosecution.”
During the public controversy over the use of our Article III civilian court system to try terror-related defendants, the government’s legal experts were widely quoted as believing that civilian courts would provide much fairer trials for these defendants, while ensuring their conviction and imprisonment. The civilian court system was thought to be a mature institution, while Guantanamo’s Military Commissions were untried and, as one military defense attorney was told, the Military Commissions were intended to convict people.
Comparing outcomes in the two venues, there doesn’t seem to be very much qualitative difference.
One of those most infuriated by our publicity-heavy attempts to ramp up our “national security” anxieties is Dr. Jeanne Theoharis, a professor of political science at Brooklyn College. Dr. Theoharis was in the forefront of a substantial community grassroots effort to mount a robust defense for Syed Hashmi, US-born of Pakistani nationality.
Hashmi was a student of Theoharis at Brooklyn College. On the eve of his federal trial in 2009, he pled guilty to helping Al Qaeda. Hashmi, 30, was sentenced to 15 years in prison on one count of providing material support to a terrorist organization. Had he not pled, he would have faced a 70-year sentence.
The former Brooklyn College student was arrested in London in 2006. The government accused him of passing “gear” to Al Qaeda; the gear consisted of a suitcase containing rain ponchos and heavy socks.
After his arrest, he was held in twenty-three-hour-a-day solitary confinement for nearly three years. The government’s case rested on the testimony and actions of an old acquaintance of Hashmi’s who turned government informant after his own arrest.
Theoharis points to a number of specific liberties that were denied to Hashmi and other pre-trial defendants in terror-related cases. She notes with modesty that these are simply off the top of her head and attributes their application to the radical political views Hashmi embraced before he was arrested. Yet last time Prism looked this up, expressing such views was the most basic of our First Amendment freedoms.
Theoharis charges that people like Fahad Hashmi and Tarek Mehanna were targeted in part for their political speech and association, which formed part of the government's case against them. Also, she adds, in many of these cases with FBI informants, what informants are sent into mosques to listen for, initially, are people voicing opinions and ideas critical of the United States.
Tarek Mehanna is an American pharmacist serving a 17-and-a-half year prison sentence after having been convicted of conspiring to help Al Qaeda.
Following the Mehanna sentencing, the ACLU released a statement saying that the suppression of unpopular ideas is contrary to American values, and that the verdict undermines the First Amendment.
Theoharis points to the right of a defendant to see and examine the evidence against him/her. But in many of these cases, much of the evidence is classified under CIPA, the Classified Information Act, passed by Congress in 1980. CIPA presents guidelines for the use of classified information by both government and defendant in a legal case. But defendants don't get to review it.
Theoharis also sees a defendant’s right to counsel diminished in terror-related cases. She says that one of the side effects of CIPA is that lawyers often go through a CIA-level screening to be able to review the evidence but they are not allowed to share what they saw with their client. According to Theoharis, this drives a wedge into the attorney client relationship.
Punishment before conviction is one of Theoharis’s most serious concerns. Like her former student, many terror suspects spend years in pre-trial solitary confinement. This degrades their health and ability to participate in their own defense, she says.
Due process: Theoharis says that while there are ostensibly ways to challenge these conditions of confinement and the application of SAMs, almost no one succeeds in using these administrative processes to actually get their SAMs removed or conditions altered.
Right to a speedy trial: Because much of the evidence is classified in many of these cases, people are impelled to waive their speedy trial rights under the Eighth Amendment to give their counsel adequate time to review the evidence. One defendant, Sami Al Arian, has been largely locked up, in one type of facility or another, for more than nine years.
Confidentiality of attorney-client communications. Lawyers representing people accused of terror-related offenses have been notified that their working sessions with their clients are no longer confidential. This ruling was made because prison authorities feared that defendants were using their attorneys to deliver messages to their colleagues. But the ruling struck a body blow at one of the bedrock principles of legal representation. One result is that lawyers are becoming reluctant to take on the defense of terror suspects.
Numerous legal experts have commented that ordinary citizens who have been charged but not tried would be unlikely to be punished for speaking out, regardless of how radically -- because speech is protected by the Constitution. But where terrorism is involved, prosecutors and judges find themselves conflating free speech with overt action.
How has this erosion of liberties taken place? Is it government by the rule of law or the law of the Wild West? Or is it some informal ad hoc arrangement between prosecutors and jailers?
Amy Fettig, a senior counsel with the ACLU’s Prison Project, has studied the SAMs regimen and is familiar with both its content and its application by Federal authorities.
She told Prism:
“Less than two months after the September 11 terrorist attacks on the United States, the Department of Justice issued an interim rule that drastically expanded the scope of the Bureau of Prisons’ (BOP) powers under the special administrative measures (SAMs) promulgated in the mid-1990’s after the first bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma. The regulation became effective immediately without the usual opportunity for prior public comment.
“The original SAMs promulgated during the Clinton Administration allowed the government to impose special administrative measures on certain federal inmates, including solitary confinement, interception of mail, and restriction on telephone calls and visitors.
“Before imposing a SAM, the rule required a specific determination by the Attorney General that the measure was ‘reasonably necessary’ in order to deter future acts of violence or terrorism. The rule also limited the extent of a SAM by placing a 120-day time limit, renewable on reapplication in 120-day increments.
“In contrast, the SAMs re-promulgated after 9/11 are an unprecedented frontal assault on the attorney-client privilege and the right to counsel guaranteed by the Constitution.
“The current SAMs allow the Attorney General unlimited and unreviewable discretion to strip any person in federal custody of the right to communicate confidentially with an attorney. In any case in which the Attorney General believes that there is ‘reasonable suspicion’ that a person in custody ‘may’ use communications with attorneys or their agents ‘to further or facilitate acts of terrorism,’ the Director of BOP ‘shall … provide appropriate procedures for the monitoring or review of communications between the inmate and attorneys or attorneys’ agents who are traditionally covered by the attorney-client privilege…’
“It is especially disturbing that the provisions for monitoring confidential attorney-client communications apply not only to convicted prisoners in the custody of the BOP, but to all persons in the custody of the Department of Justice, including pretrial detainees who have not been convicted of crime and are presumed innocent, as well as material witnesses and immigration detainees, who are not accused of any crime.
“In addition to the broad nullification of the attorney-client privilege allowed under these BOP regulations, SAMs no longer have a 120-day time limit and the revised regulation also permit monitoring and measures that include extreme forms of social isolation, such as housing in segregation and limitations on visitation and other contact with the outside world, for one-year periods with indefinite renewal of additional one-year intervals.
“The revised BOP SAMs rules are a direct assault on the attorney-client privilege that flies in the face of our Constitution and the underlying principles of our legal system. Under the SAMs, a defendant and his counsel are confronted not just by the fear that the government is monitoring communications, but by the certain knowledge that it is doing so. Such a defendant is told that none of his communications with his attorney will be confidential – that all such communications, whether conducted in person, by mail, or by telephone, are subject to government monitoring. Under such conditions, the right to counsel as consistently defined by our courts, is essentially undermined.
“Additionally, the SAMs regulations may subject individuals, including individuals who are seriously mentally ill, to indefinitely renewable, long-term solitary confinement without any evaluation of their mental state or existing mental illness. Federal courts have consistently held that such isolation violates the Constitution when inflicted on the seriously mentally ill. This callous disregard for Constitutional protections in regulations promulgated by the U.S. Department of Justice sends a disturbing signal that automatic deference to assertions of national security is dangerously trumping our rule of law.”
Many prison experts believe SAMs, including solitary confinement, are both cruel and ineffective, and needlessly increase the anger of prisoners toward their captors.
But the Director of the Bureau of Prisons, Charles E. Samuels Jr., doesn’t see it that way.
At the very first Congressional hearing ever held on the subject of segregation, or solitary confinement under the SAMs, he explained that “SAMs are special conditions of confinement or limitation of privileges that are reasonably necessary to prevent disclosure of national security information or prevent acts of violence and/or terrorism…SAMs restrict access to mail, media, telephone, and/or visitors, depending upon the specific risk factors.”
Testifying that “this restricted form of housing applies to only a small number of inmates within the Bureau,” Samuels told the Senators that “the use of restricted housing, however limited, remains a critical management tool that helps us maintain safety, security, and effective reentry programming for the vast majority of federal inmates housed in general population.”
But that is not the issue here. The issue here is whether the justice system should be using these administrative tools to put a gag on prisoners who have every right to speak out.
The precise number of prisoners living under SAMs is difficult to know – the Bureau of Prisons will not comment. The Director of the Bureau also testified at the Senate last week that he didn’t know the exact number of mentally ill inmates locked up in the US prison system as well as the number of those living under SAMs.
The number under SAMs is thought to be about 50, with 30 of those charged with terror-related crimes. But if the Director of the Bureau of Prisons has the slightest interest in making this problem less disgraceful, he needs to begin with an accurate count.
And he needs to disclose it to the public.
Senator Durbin and the members of the Judiciary Committee hope to attract support for a full-blown review of SAMs and other administrative coercions, leading to regulations that achieve more with a lot less pain.
Virginia’s Political Asset
By William Fisher
The news item, bylined by the Washington Post’s Anita Kumar, was so small I almost missed it. But I didn’t.
It reported that “the Republican-controlled Virginia House of Delegates killed a bill that would have required the state to study ways to limit the use of solitary confinement in state prisons,” especially those housing mentally ill inmates as is done at Red Onion State Prison in Wise County.
Should we be surprised? After all, Virginia (at least Southern Virginia) is among the reddest of the red states. The Republican zoo animals who sit in the House of Delegates have this urgent need to throw large dollops of red meat out to their constituents with some frequency.
And, it seems, there’s no redder meat than being super-tough on crime. Especially when Democrats are trying to understand how their most violent inmates are treated and what, if anything, could be done to reduce the mayhem.
It was precisely that investigative mission that Del. Patrick A. Hope (D-Arlington), Del. Charniele Herring (D-Alexandria) and Sen. Adam Ebbin (D-Alexandria) had in mind when they proposed a bill after visiting state prisons last fall.
The Republican-controlled House killed the bill in short order in its Rules Committee, Ms. Kumar reports. A similar bill in the Senate has yet to be heard, but she says it’s unlikely that the House would change its position.
Just by way of background, Kumar reports that Virginia is one of 44 states that use solitary confinement, has 1,800 people in isolation, a sizable share of the estimated 25,000 people in solitary in the nation’s state and federal prisons.
Lamentably, the GOP’s Kill-Bill action synchronized awkwardly with Sen. Dick Durbin’s efforts at the national level to shine a little sun on the unspeakably barbarian practices of our penal system.
The Senate’s Number Two Democrat had called a hearing – the first of it kind ever to be held by Congress. The audience heard blood-curdling descriptions of endless solitary confinement, lack of food, lack of health care, mental illness, suicide, and – perhaps worst – lack of dignity.
As we work overtime to stuff our prisons with low-level, mostly brown-skinned, mostly non-violent inmates, more will become known about the effects of isolation — on inmate health, public safety and prison budgets.
And prison authorities in some states, even Red ones, may finally understand that the chances of a relatively smooth-running prison do not improve in direct ratio to the cruelty meted out.
The Washington Post story says that, according to lawyers and inmates, some of the state’s 40,000 prisoners, including some with mental health issues, have been kept in isolation for years, in one case for 14 years. That’s unlikely to produce warm and fuzzy feelings from those who are isolated.
What’s totally predictable is that those prisoners are going to be exponentially more frustrated and full of rage – very bad candidates for better behavior.
Even if their anger is a political asset.
Our lawmakers desperately need to understand some of the paths toward better behavior. If they don’t, we’ll just go on spending more money and throwing more lives on the landfill of broken lives.
The news item, bylined by the Washington Post’s Anita Kumar, was so small I almost missed it. But I didn’t.
It reported that “the Republican-controlled Virginia House of Delegates killed a bill that would have required the state to study ways to limit the use of solitary confinement in state prisons,” especially those housing mentally ill inmates as is done at Red Onion State Prison in Wise County.
Should we be surprised? After all, Virginia (at least Southern Virginia) is among the reddest of the red states. The Republican zoo animals who sit in the House of Delegates have this urgent need to throw large dollops of red meat out to their constituents with some frequency.
And, it seems, there’s no redder meat than being super-tough on crime. Especially when Democrats are trying to understand how their most violent inmates are treated and what, if anything, could be done to reduce the mayhem.
It was precisely that investigative mission that Del. Patrick A. Hope (D-Arlington), Del. Charniele Herring (D-Alexandria) and Sen. Adam Ebbin (D-Alexandria) had in mind when they proposed a bill after visiting state prisons last fall.
The Republican-controlled House killed the bill in short order in its Rules Committee, Ms. Kumar reports. A similar bill in the Senate has yet to be heard, but she says it’s unlikely that the House would change its position.
Just by way of background, Kumar reports that Virginia is one of 44 states that use solitary confinement, has 1,800 people in isolation, a sizable share of the estimated 25,000 people in solitary in the nation’s state and federal prisons.
Lamentably, the GOP’s Kill-Bill action synchronized awkwardly with Sen. Dick Durbin’s efforts at the national level to shine a little sun on the unspeakably barbarian practices of our penal system.
The Senate’s Number Two Democrat had called a hearing – the first of it kind ever to be held by Congress. The audience heard blood-curdling descriptions of endless solitary confinement, lack of food, lack of health care, mental illness, suicide, and – perhaps worst – lack of dignity.
As we work overtime to stuff our prisons with low-level, mostly brown-skinned, mostly non-violent inmates, more will become known about the effects of isolation — on inmate health, public safety and prison budgets.
And prison authorities in some states, even Red ones, may finally understand that the chances of a relatively smooth-running prison do not improve in direct ratio to the cruelty meted out.
The Washington Post story says that, according to lawyers and inmates, some of the state’s 40,000 prisoners, including some with mental health issues, have been kept in isolation for years, in one case for 14 years. That’s unlikely to produce warm and fuzzy feelings from those who are isolated.
What’s totally predictable is that those prisoners are going to be exponentially more frustrated and full of rage – very bad candidates for better behavior.
Even if their anger is a political asset.
Our lawmakers desperately need to understand some of the paths toward better behavior. If they don’t, we’ll just go on spending more money and throwing more lives on the landfill of broken lives.
Monday, July 09, 2012
Texas Justice: 22 Years on Death Row
By William Fisher
An increasing number of headlines these days seem to start the same way: Joe Smith, wrongfully convicted of murder in 1989, walked out of prison today, a free man after more than two decades on Death Row.
That’s the good news. The double-whammy of bad news is that thousands of wrongfully convicted men and women are serving long sentences for crimes they did not commit – and at least one of these free men is not really free. Which doesn’t make putting his shattered life back together any piece of cake.
He is Kerry Max Cook, 56, whom Texas still considers a convicted murderer. Cook was convicted of the 1977 raping and murdering Linda Jo Edwards in Tyler, Tex. He’s had three trials: a first conviction that was reversed, a hung jury outcome in a second trial, and a third conviction that was overturned because it was found to be tainted by prosecutorial misconduct.
Prosecutorial Misconduct: A phrase you will find many times in this article.
While Smith County was considering a fourth trial for Cook, he entered into an unusual plea bargain. In 1999, under a bizarre Texas law, he pleaded “no contest” – neither an admission of guilt nor a profession of innocence – and walked out of jail.
DNA tests on the victim’s clothes eventually shone light on another man’s biological matter.
To Texas lawmen, however, Cook is a convicted murderer – no more, no less. Which means he is usually unable to find steady employment and experience the normal, everyday life of a non-felon.
“Thirteen years after his release, Mr. Cook is battling with Smith County prosecutors to officially clear his name. This freedom means nothing with a conviction,” said Cook. He is seeking new DNA testing to establish his innocence..
Cook’s anger-making story is part of a landmark report from the National Registry of Exonerations. The new institution, a partnership between the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, reveals that more than 2,000 wrongfully convicted individuals have been exonerated nationally since 1989.
The Texas Tribune has published a report by Brandi Grisssom, analyzing Texas cases involving prosecutorial misconduct but where the state bar has failed to take any action against the lawyers.
The item opens:
“In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today. None of those prosecutors has ever been disciplined.”
The Tribune noted, “It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states.”
In Texas, Ridolfi told the Trib, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.
Key Findings from the Report:
Snapshot figures of the 873 exonerated defendants:
93% are men, 7% women; 50% are black, 38% white, 11% Hispanic and 2% Native American or Asian; 37% were exonerated with the help of DNA evidence; 63% without DNA; as a group, they spent more than 10,000 years in prison – an average of more than 11 years each.
Since 2000, exonerations have averaged 52 a year – one a week – 40% of which include DNA evidence.
DNA exonerations are increasingly older cases: The average time from conviction to a DNA exoneration is now about 18 years, up from less than 7 years in the early 1990s, and murder cases – since 2008 most DNA exonerations are murder prosecutions, usually rape-murders, rather than sexual assaults.
The exonerations in the Registry are unevenly distributed geographically. They concentrated in several states, led by Illinois, New York, Texas and California.
Some counties, like Cook (Chicago), Illinois, and Dallas, Texas, have dozens of exoneration; other counties with millions of people, like San Bernardino, California and Fairfax, Virginia, have none. Neighboring counties are often very far apart. Santa Clara County, California – home of the Northern California Innocence Project – has 10 exonerations; directly to its north, Alameda County has more violent crime but no known exonerations.
The 873 exonerations are mostly rape and murder cases, but the data also include 18-20 many more exonerations for other crimes than previously known. All told, we have:
48% homicides (416) including 12% death sentences (101)
35% sexual assaults (305)
5% robberies (47)
5% other violent crimes (47)
7% drug, white collar and other non-violent crimes (58)
Causes of False Convictions
For all exonerations, the most common causal factors that contributed to the underlying false convictions are perjury or false accusation (51%), mistaken eyewitness identification (43%) and official misconduct (42%) – followed by false or misleading forensic evidence (24%) and false confession (16%).
The frequencies of these causal factors vary greatly from one type of crime to another. See Table 13.·Homicide exonerations: The leading contributing cause is perjury or false accusation (66%) – mostly deliberate misidentifications (44%).n Homicide case also have a high rate of official misconduct (56%). Homicide exonerations include 76% of all false confessions in the data.
Some exonerees were falsely implicated by a co-defendant who confessed. Including such cases, the convictions in 39% of homicide exonerations were caused in part by false confessions.
Juvenile and mentally disabled exonerees were, respectively, five times and nine times more likely to falsely confess than adult exonerees without known mental disabilities.
Sexual assault exonerations are overwhelmingly cases with mistaken eyewitness identifications (80%).
53% of all sexual assault exonerations with mistaken eyewitness identifications involved black men who were accused of raping white women. This huge racial disproportion (about 10 to 1) is probably caused primarily by the difficulty of cross-racial eyewitness identification.
Many sexual assault cases also include bad forensic evidence (37%).
Child sex abuse exonerations, by contrast, primarily involve fabricated crimes that never occurred at all (74%).
Robbery exonerations (like adult rape exonerations) are overwhelmingly cases with mistaken eyewitness identifications (81%).
The small number of drug crime exonerations we have found (25) include a high rate of deliberate misidentifications (48%).
Most individual no-crime exonerations are sexual assault cases in which the complaining witnesses fabricated crimes
Most fabricated crime exonerations are child sex abuse cases (70).
Two-thirds of the child sex abuse exonerations are child sex abuse hysteria convictions from the 1980s and early 1990s.·
Group Exonerations
By far the largest concentrations of no-crime cases are group exonerations: At least 1,170 defendants were exonerated in the aftermath of the discovery of 13 major scandals around the country in which police officers fabricated crimes, usually by planting drugs or guns on innocent defendants. We are confident that there are others that we have not yet identified.
Overall Frequency of False Convictions and Exonerations.
There is no way to estimate the overall number of false convictions from these reported exonerations, but it is clear that there are many more false convictions than exonerations.
The exonerations that we know about are: Overwhelmingly rape and murder cases in which defendants went to trial rather than plead guilty and received very severe punishments, especially death sentences.
They are also: Concentrated in several states and a small number of counties; disproportionately likely among the small fraction of criminal cases in which DNA evidence can prove guilt or innocence, and often the result of unpredictable and improbable lucky breaks.
Obviously there are many more false convictions among cases that don’t fit that description, and that didn’t end in exoneration: lesser crimes than rape or murder; defendants who pled guilty and received comparatively mild punishments; cases in states and counties with few exonerations or none; cases without DNA evidence; defendants who were just unlucky.
According to The Texas Tribune – a non-profit public service newsgathering and reporting organization -- The Registry lists 891 exonerations in the United States since 1989. It is thought to be the largest database of exonerations ever compiled.
Of the 873 who are covered in the report, 93 percent are men. Half are African-Americans. Thirty-seven percent were exonerated due to DNA evidence.
Juvenile and mentally disabled individuals who were freed were, respectively, five and nine time more likely to falsely confess, sometimes under duress, than other groups.
Most exoneration cases involve rape and murder, including 12 percent in death penalty cases. That last statistic implicitly raises the possibility that innocent men may be awaiting execution on death rows across America. Some may even have been wrongfully executed.
"The most important thing we know about false convictions is that they happen and on a regular basis," University of Michigan law professors Samuel Gross and Michael Schaffer, co-authors of the study, said in the report.
The Texas Tribune found that in nearly one-quarter of those cases — 21 in total — courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome.
The wrongfully convicted in those cases spent a combined total of more than 270 years in prison.
In the cases, judges found that prosecutors broke basic legal and ethical rules, suppressing important evidence and witness testimony and making improper arguments to jurors. Despite the courts’ findings of some serious missteps, the State Bar of Texas reports very little public discipline of prosecutors in recent history.
Since 2000, there has been an average of one exoneration per week in the United States. But those who languish behind bars have spent more than 10,000 collective years in prison for crimes they did not commit, an average of more than 11 years per person.
The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might
prevent future wrongful convictions.
According to the report, the main causes of exoneration are perjury or false accusation (51 percent), followed by mistaken eyewitness identification (43 percent), official misconduct (42 percent), false or misleading forensic evidence (24 percent) and false confession (16 percent).
As of January 1, 2012, there were 3,189 people awaiting execution in the United States, which executed 43 people in 2011. Only four other countries-- China, Iran, Saudi Arabia and Iraq-- put more people to death, according to Amnesty International.
The State Bar does not track discipline of prosecutors separately from other lawyers. But Linda Acevedo, the chief disciplinary counsel for the State Bar who has been at the agency since 1985, said she could recall three prosecutors who were publicly reprimanded. None of the reprimands were related to the 86
The report uses a conservative definition of exoneration. Only formal decisions by courts and executive officers count. It also highlights at least 1,170 defendants whose convictions were thrown out in group exonerations, usually resulting from police scandals, bringing the total number to over 2,000. Those freed in group exonerations, however, are not included in the National Registry.
Meanwhile, a coalition of such organizations as the Innocence Project has embarked on a first-of-its-kind series of visits to major U.S. cities to meet with lawyers, judges, law professors and other public interest figures to consider policy and practice options that would discourage prosecutorial misconduct. The group has thus far visited California, New York, Texas and Louisiana.
The coalition has found that courts, state bar associations, and other official organizations dedicated to protect defendants’ rights, take virtually no actions against prosecutors suspected of misconduct.
And, in arguably stronger evidence that the power of prosecutors in finally beginning to lead to misgivings among other lawyers, as well as judges, bar associations and law schools, Texas Supreme Court Chief Justice Wallace Jefferson has ordered a court of inquiry to investigate whether the former Williamson County District Attorney violated Texas law by refusing to turn over evidence that could have prevented Michael Morton from serving 25 years for a murder of his wife that DNA evidence has now proven he didn’t commit. The court of inquiry will begin in September.
Michael Morton walked out of a Williamson County courtroom today after his 1987 murder conviction was overturned because of new DNA evidence pointing to another man. Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.
It isn’t often that a story about prosecutorial misconduct ends up even as half-heartedly punitive as this:
Richard Convertino is a former federal prosecutor in Detroit, Michigan. Convertino was the lead Assistant U.S. Attorney in the "Detroit Sleeper Cell" prosecutions of Karim Koubriti and Abdel-Ilah Elmardoudi. However, the U.S. Department of Justice subsequently removed Convertino from his position and asked courts to dismiss those convictions, on the grounds that Convertino had failed to disclose evidence to which the defense was entitled. Convertino is still practicing law privately.
What should be our takeaway from all this?
There are thousands of prosecutors in the U.S. As we appear bent on stuffing every one of our federal, state and local lockups with inmates – mostly non-violent drug-users – the prosecutors’ caseloads will inevitably increase.
As they do, more and more mistakes – and misconduct – will surface. And more and more people will be fraudulently incarcerated.
Some important initiatives have already started to take hold. For example, since his election in 2006, Dallas County District Attorney Craig Watkins has made a very public commitment to reform. The ACLU of Texas says he deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past.
The current tour by the innocence coalition is likely to produce more ideas worth considering.
But the linchpin of real progress against over-zealous prosecutors has to be the Bar Associations of the 50 states. Our prosecutorial bar will be perceived as weak and uncaring until these peer groups are ready to use their power to aggressively weed out bad behavior.
An increasing number of headlines these days seem to start the same way: Joe Smith, wrongfully convicted of murder in 1989, walked out of prison today, a free man after more than two decades on Death Row.
That’s the good news. The double-whammy of bad news is that thousands of wrongfully convicted men and women are serving long sentences for crimes they did not commit – and at least one of these free men is not really free. Which doesn’t make putting his shattered life back together any piece of cake.
He is Kerry Max Cook, 56, whom Texas still considers a convicted murderer. Cook was convicted of the 1977 raping and murdering Linda Jo Edwards in Tyler, Tex. He’s had three trials: a first conviction that was reversed, a hung jury outcome in a second trial, and a third conviction that was overturned because it was found to be tainted by prosecutorial misconduct.
Prosecutorial Misconduct: A phrase you will find many times in this article.
While Smith County was considering a fourth trial for Cook, he entered into an unusual plea bargain. In 1999, under a bizarre Texas law, he pleaded “no contest” – neither an admission of guilt nor a profession of innocence – and walked out of jail.
DNA tests on the victim’s clothes eventually shone light on another man’s biological matter.
To Texas lawmen, however, Cook is a convicted murderer – no more, no less. Which means he is usually unable to find steady employment and experience the normal, everyday life of a non-felon.
“Thirteen years after his release, Mr. Cook is battling with Smith County prosecutors to officially clear his name. This freedom means nothing with a conviction,” said Cook. He is seeking new DNA testing to establish his innocence..
Cook’s anger-making story is part of a landmark report from the National Registry of Exonerations. The new institution, a partnership between the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, reveals that more than 2,000 wrongfully convicted individuals have been exonerated nationally since 1989.
The Texas Tribune has published a report by Brandi Grisssom, analyzing Texas cases involving prosecutorial misconduct but where the state bar has failed to take any action against the lawyers.
The item opens:
“In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today. None of those prosecutors has ever been disciplined.”
The Tribune noted, “It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states.”
In Texas, Ridolfi told the Trib, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.
Key Findings from the Report:
Snapshot figures of the 873 exonerated defendants:
93% are men, 7% women; 50% are black, 38% white, 11% Hispanic and 2% Native American or Asian; 37% were exonerated with the help of DNA evidence; 63% without DNA; as a group, they spent more than 10,000 years in prison – an average of more than 11 years each.
Since 2000, exonerations have averaged 52 a year – one a week – 40% of which include DNA evidence.
DNA exonerations are increasingly older cases: The average time from conviction to a DNA exoneration is now about 18 years, up from less than 7 years in the early 1990s, and murder cases – since 2008 most DNA exonerations are murder prosecutions, usually rape-murders, rather than sexual assaults.
The exonerations in the Registry are unevenly distributed geographically. They concentrated in several states, led by Illinois, New York, Texas and California.
Some counties, like Cook (Chicago), Illinois, and Dallas, Texas, have dozens of exoneration; other counties with millions of people, like San Bernardino, California and Fairfax, Virginia, have none. Neighboring counties are often very far apart. Santa Clara County, California – home of the Northern California Innocence Project – has 10 exonerations; directly to its north, Alameda County has more violent crime but no known exonerations.
The 873 exonerations are mostly rape and murder cases, but the data also include 18-20 many more exonerations for other crimes than previously known. All told, we have:
48% homicides (416) including 12% death sentences (101)
35% sexual assaults (305)
5% robberies (47)
5% other violent crimes (47)
7% drug, white collar and other non-violent crimes (58)
Causes of False Convictions
For all exonerations, the most common causal factors that contributed to the underlying false convictions are perjury or false accusation (51%), mistaken eyewitness identification (43%) and official misconduct (42%) – followed by false or misleading forensic evidence (24%) and false confession (16%).
The frequencies of these causal factors vary greatly from one type of crime to another. See Table 13.·Homicide exonerations: The leading contributing cause is perjury or false accusation (66%) – mostly deliberate misidentifications (44%).n Homicide case also have a high rate of official misconduct (56%). Homicide exonerations include 76% of all false confessions in the data.
Some exonerees were falsely implicated by a co-defendant who confessed. Including such cases, the convictions in 39% of homicide exonerations were caused in part by false confessions.
Juvenile and mentally disabled exonerees were, respectively, five times and nine times more likely to falsely confess than adult exonerees without known mental disabilities.
Sexual assault exonerations are overwhelmingly cases with mistaken eyewitness identifications (80%).
53% of all sexual assault exonerations with mistaken eyewitness identifications involved black men who were accused of raping white women. This huge racial disproportion (about 10 to 1) is probably caused primarily by the difficulty of cross-racial eyewitness identification.
Many sexual assault cases also include bad forensic evidence (37%).
Child sex abuse exonerations, by contrast, primarily involve fabricated crimes that never occurred at all (74%).
Robbery exonerations (like adult rape exonerations) are overwhelmingly cases with mistaken eyewitness identifications (81%).
The small number of drug crime exonerations we have found (25) include a high rate of deliberate misidentifications (48%).
Most individual no-crime exonerations are sexual assault cases in which the complaining witnesses fabricated crimes
Most fabricated crime exonerations are child sex abuse cases (70).
Two-thirds of the child sex abuse exonerations are child sex abuse hysteria convictions from the 1980s and early 1990s.·
Group Exonerations
By far the largest concentrations of no-crime cases are group exonerations: At least 1,170 defendants were exonerated in the aftermath of the discovery of 13 major scandals around the country in which police officers fabricated crimes, usually by planting drugs or guns on innocent defendants. We are confident that there are others that we have not yet identified.
Overall Frequency of False Convictions and Exonerations.
There is no way to estimate the overall number of false convictions from these reported exonerations, but it is clear that there are many more false convictions than exonerations.
The exonerations that we know about are: Overwhelmingly rape and murder cases in which defendants went to trial rather than plead guilty and received very severe punishments, especially death sentences.
They are also: Concentrated in several states and a small number of counties; disproportionately likely among the small fraction of criminal cases in which DNA evidence can prove guilt or innocence, and often the result of unpredictable and improbable lucky breaks.
Obviously there are many more false convictions among cases that don’t fit that description, and that didn’t end in exoneration: lesser crimes than rape or murder; defendants who pled guilty and received comparatively mild punishments; cases in states and counties with few exonerations or none; cases without DNA evidence; defendants who were just unlucky.
According to The Texas Tribune – a non-profit public service newsgathering and reporting organization -- The Registry lists 891 exonerations in the United States since 1989. It is thought to be the largest database of exonerations ever compiled.
Of the 873 who are covered in the report, 93 percent are men. Half are African-Americans. Thirty-seven percent were exonerated due to DNA evidence.
Juvenile and mentally disabled individuals who were freed were, respectively, five and nine time more likely to falsely confess, sometimes under duress, than other groups.
Most exoneration cases involve rape and murder, including 12 percent in death penalty cases. That last statistic implicitly raises the possibility that innocent men may be awaiting execution on death rows across America. Some may even have been wrongfully executed.
"The most important thing we know about false convictions is that they happen and on a regular basis," University of Michigan law professors Samuel Gross and Michael Schaffer, co-authors of the study, said in the report.
The Texas Tribune found that in nearly one-quarter of those cases — 21 in total — courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome.
The wrongfully convicted in those cases spent a combined total of more than 270 years in prison.
In the cases, judges found that prosecutors broke basic legal and ethical rules, suppressing important evidence and witness testimony and making improper arguments to jurors. Despite the courts’ findings of some serious missteps, the State Bar of Texas reports very little public discipline of prosecutors in recent history.
Since 2000, there has been an average of one exoneration per week in the United States. But those who languish behind bars have spent more than 10,000 collective years in prison for crimes they did not commit, an average of more than 11 years per person.
The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might
prevent future wrongful convictions.
According to the report, the main causes of exoneration are perjury or false accusation (51 percent), followed by mistaken eyewitness identification (43 percent), official misconduct (42 percent), false or misleading forensic evidence (24 percent) and false confession (16 percent).
As of January 1, 2012, there were 3,189 people awaiting execution in the United States, which executed 43 people in 2011. Only four other countries-- China, Iran, Saudi Arabia and Iraq-- put more people to death, according to Amnesty International.
The State Bar does not track discipline of prosecutors separately from other lawyers. But Linda Acevedo, the chief disciplinary counsel for the State Bar who has been at the agency since 1985, said she could recall three prosecutors who were publicly reprimanded. None of the reprimands were related to the 86
The report uses a conservative definition of exoneration. Only formal decisions by courts and executive officers count. It also highlights at least 1,170 defendants whose convictions were thrown out in group exonerations, usually resulting from police scandals, bringing the total number to over 2,000. Those freed in group exonerations, however, are not included in the National Registry.
Meanwhile, a coalition of such organizations as the Innocence Project has embarked on a first-of-its-kind series of visits to major U.S. cities to meet with lawyers, judges, law professors and other public interest figures to consider policy and practice options that would discourage prosecutorial misconduct. The group has thus far visited California, New York, Texas and Louisiana.
The coalition has found that courts, state bar associations, and other official organizations dedicated to protect defendants’ rights, take virtually no actions against prosecutors suspected of misconduct.
And, in arguably stronger evidence that the power of prosecutors in finally beginning to lead to misgivings among other lawyers, as well as judges, bar associations and law schools, Texas Supreme Court Chief Justice Wallace Jefferson has ordered a court of inquiry to investigate whether the former Williamson County District Attorney violated Texas law by refusing to turn over evidence that could have prevented Michael Morton from serving 25 years for a murder of his wife that DNA evidence has now proven he didn’t commit. The court of inquiry will begin in September.
Michael Morton walked out of a Williamson County courtroom today after his 1987 murder conviction was overturned because of new DNA evidence pointing to another man. Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.
It isn’t often that a story about prosecutorial misconduct ends up even as half-heartedly punitive as this:
Richard Convertino is a former federal prosecutor in Detroit, Michigan. Convertino was the lead Assistant U.S. Attorney in the "Detroit Sleeper Cell" prosecutions of Karim Koubriti and Abdel-Ilah Elmardoudi. However, the U.S. Department of Justice subsequently removed Convertino from his position and asked courts to dismiss those convictions, on the grounds that Convertino had failed to disclose evidence to which the defense was entitled. Convertino is still practicing law privately.
What should be our takeaway from all this?
There are thousands of prosecutors in the U.S. As we appear bent on stuffing every one of our federal, state and local lockups with inmates – mostly non-violent drug-users – the prosecutors’ caseloads will inevitably increase.
As they do, more and more mistakes – and misconduct – will surface. And more and more people will be fraudulently incarcerated.
Some important initiatives have already started to take hold. For example, since his election in 2006, Dallas County District Attorney Craig Watkins has made a very public commitment to reform. The ACLU of Texas says he deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past.
The current tour by the innocence coalition is likely to produce more ideas worth considering.
But the linchpin of real progress against over-zealous prosecutors has to be the Bar Associations of the 50 states. Our prosecutorial bar will be perceived as weak and uncaring until these peer groups are ready to use their power to aggressively weed out bad behavior.
Sunday, July 08, 2012
Focus on the Suez Canal
Steven Lee argues that transforming the Suez Canal to an integrated industry and services zone would deliver accelerated and more equitable growth for the Egyptian economy and help it become a G20 member.
Today Egypt sits at a crossroads in its long history. The people have spoken and established their right to practised democracy. However the pay-off to this freedom to elect a president and parliament means delivery to the people of a more equitable economic system, which creates more income with fairer distribution.
Even before 2004, the government’s socio-economic objective was to ensure the economy could absorb the annual 600,000 to 800,000 new job market. This is a vital objective; however it does not reflect a high-level vision for the country’s development or its economic future.
A new high-level vision is proposed that by 2050 Egypt become a member of the G20, the expanded “Rich club of nations”. Egypt’s population is projected at 120 million by 2050; however the size of Egypt’s economy by 2050 will largely depend upon the decisions taken by this government.
It will compete for membership with Nigeria and Vietnam; both shared with Egypt a GDP of of approximately 1 per cent of the USA’s in 2009. Nigeria’s and Vietnam’s average projected growth rates until 2050 are respectively, 7.9 per cent and 8.8 per cent. Egypt must surpass its economic growth average of 7 per cent which it recorded between 2006 and 2009.
To deliver a G20 vision of Egypt’s economic future, policy makers must be realistic about Egypt’s previous levels of international competitiveness. On the positive side tourism receipts, Suez Canal fees, overseas remittances and foreign direct investment (FDI) have all experienced unprecedented levels. But although manufacturing exports doubled from 2006 to 2010, imports grew at a much faster rate, too often displacing domestically manufactured products.
One important reason for this trade imbalance is that the international competitiveness of Egyptian enterprises is too often dependant on an export model of trade preferences and government transfer payments. This distorts the flow of investment.
Although international competitiveness policy reforms were targeted, such as those found in the World Bank’s, Doing Business survey, this was not prioritized in all decision making. Nor was there a transparent framework to coordinate macroeconomic reforms with individual economic sectors.
Today Egypt and its people are looking for reliable economic outcomes including more productive jobs, at improved wage levels. For this reason Egypt should move ahead promptly to establish an integrated industry and services zone able to deliver accelerated economic growth: the much spoken of Suez Economic Corridor. Located to the East and the West of the Suez Canal it would, incorporate existing ports of East and West Port Said in the North and North West of Suez to the Canal’s South, as well as agricultural and industrial zones and all physical infrastructure.
Whilst the Canal’s contribution to Egypt’s GDP recently peaked at four per cent in 2007/08 it has since fallen to 2.3 per cent of GDP in 2010/11, despite near record levels of transit fee income of US$ 5.1 billion. There are, however, many additional services that could be delivered to ships in transit, which could translate into significant new income for Egypt.
The Republic of Panama already has a long-term plan to leverage its Canal traffic to add substantially to overall economic growth from value-adding logistics. It has estimated that the contribution of logistics alone would add an average of 19 per cent to economic growth between 2014 and 2020.
It is proposed that a first step for the new President would be to establish the Suez Economic Corridor Commission. This agency would implement this platform for accelerated economic development, adding value to the Suez Canal’s maritime traffic with impact on the rest of Egypt through linkages and multiplier effects.
The Corridor’s regulatory environment would deliver streamlined regulations favourable to employment, investment and social development, avoiding Egypt’s historical bureaucracy and stifling regulations which have too often hindered investment. At the heart of the process will be a 20-year strategy to create value-adding employment and lift the Corridor’s economic contribution to national GDP to 10 per cent in ten years, targeting the creation of 1.5 million new jobs within the first 5-year phase.
It is also proposed that the Commission would coordinate strategies for the economic sectors of agriculture, finance, industry and services, with enterprises in Egypt. They would simultaneously create accountable new agencies for enterprise development, exports, innovation, investment, quality and standards, and skills Building.
This streamlined environment for employment and business would encourage investors to transform their enterprise model, delivering sustainable international competitiveness, dependent on domestic factors of production. The Corridor would prioritise the attraction of a skilled workforce able to deliver productivity increases matched by higher per capita levels of investment. Enterprises would replace imported inputs with investments that deliver connected supply chains. This would enable Egyptian manufacturers to be more competitive with higher levels of domestic value-added and faster delivery times, targeting both domestic and export markets.
The government must also play its role and ensure that state enterprises do not allow primary inputs to leave the country as raw materials, but are fed into domestic supply chains to manufacture finished products or components.
This tumultuous period in Egypt’s history is a unique opportunity to forge a new economic contract recognizing the people’s ambition for better incomes and improved social conditions. Targeting Egypt’s G20 membership by 2050 gives the country a long-term vision through which to guide economic and social decision making. Launching the Suez Economic Corridor Commission to oversee a unified economic zone to the East and West of the Suez Canal creates a zone for accelerated economic growth. Using the Canal’s existing operations supported by favourable employment and business regulations creates an environment favourable to high levels of investment. These policy reforms would deliver an acceleration of economic growth, impacting development throughout Egypt.
The writer is a marketing and economic strategy consultant who has worked extensively in Egypt for donor programmes.
Today Egypt sits at a crossroads in its long history. The people have spoken and established their right to practised democracy. However the pay-off to this freedom to elect a president and parliament means delivery to the people of a more equitable economic system, which creates more income with fairer distribution.
Even before 2004, the government’s socio-economic objective was to ensure the economy could absorb the annual 600,000 to 800,000 new job market. This is a vital objective; however it does not reflect a high-level vision for the country’s development or its economic future.
A new high-level vision is proposed that by 2050 Egypt become a member of the G20, the expanded “Rich club of nations”. Egypt’s population is projected at 120 million by 2050; however the size of Egypt’s economy by 2050 will largely depend upon the decisions taken by this government.
It will compete for membership with Nigeria and Vietnam; both shared with Egypt a GDP of of approximately 1 per cent of the USA’s in 2009. Nigeria’s and Vietnam’s average projected growth rates until 2050 are respectively, 7.9 per cent and 8.8 per cent. Egypt must surpass its economic growth average of 7 per cent which it recorded between 2006 and 2009.
To deliver a G20 vision of Egypt’s economic future, policy makers must be realistic about Egypt’s previous levels of international competitiveness. On the positive side tourism receipts, Suez Canal fees, overseas remittances and foreign direct investment (FDI) have all experienced unprecedented levels. But although manufacturing exports doubled from 2006 to 2010, imports grew at a much faster rate, too often displacing domestically manufactured products.
One important reason for this trade imbalance is that the international competitiveness of Egyptian enterprises is too often dependant on an export model of trade preferences and government transfer payments. This distorts the flow of investment.
Although international competitiveness policy reforms were targeted, such as those found in the World Bank’s, Doing Business survey, this was not prioritized in all decision making. Nor was there a transparent framework to coordinate macroeconomic reforms with individual economic sectors.
Today Egypt and its people are looking for reliable economic outcomes including more productive jobs, at improved wage levels. For this reason Egypt should move ahead promptly to establish an integrated industry and services zone able to deliver accelerated economic growth: the much spoken of Suez Economic Corridor. Located to the East and the West of the Suez Canal it would, incorporate existing ports of East and West Port Said in the North and North West of Suez to the Canal’s South, as well as agricultural and industrial zones and all physical infrastructure.
Whilst the Canal’s contribution to Egypt’s GDP recently peaked at four per cent in 2007/08 it has since fallen to 2.3 per cent of GDP in 2010/11, despite near record levels of transit fee income of US$ 5.1 billion. There are, however, many additional services that could be delivered to ships in transit, which could translate into significant new income for Egypt.
The Republic of Panama already has a long-term plan to leverage its Canal traffic to add substantially to overall economic growth from value-adding logistics. It has estimated that the contribution of logistics alone would add an average of 19 per cent to economic growth between 2014 and 2020.
It is proposed that a first step for the new President would be to establish the Suez Economic Corridor Commission. This agency would implement this platform for accelerated economic development, adding value to the Suez Canal’s maritime traffic with impact on the rest of Egypt through linkages and multiplier effects.
The Corridor’s regulatory environment would deliver streamlined regulations favourable to employment, investment and social development, avoiding Egypt’s historical bureaucracy and stifling regulations which have too often hindered investment. At the heart of the process will be a 20-year strategy to create value-adding employment and lift the Corridor’s economic contribution to national GDP to 10 per cent in ten years, targeting the creation of 1.5 million new jobs within the first 5-year phase.
It is also proposed that the Commission would coordinate strategies for the economic sectors of agriculture, finance, industry and services, with enterprises in Egypt. They would simultaneously create accountable new agencies for enterprise development, exports, innovation, investment, quality and standards, and skills Building.
This streamlined environment for employment and business would encourage investors to transform their enterprise model, delivering sustainable international competitiveness, dependent on domestic factors of production. The Corridor would prioritise the attraction of a skilled workforce able to deliver productivity increases matched by higher per capita levels of investment. Enterprises would replace imported inputs with investments that deliver connected supply chains. This would enable Egyptian manufacturers to be more competitive with higher levels of domestic value-added and faster delivery times, targeting both domestic and export markets.
The government must also play its role and ensure that state enterprises do not allow primary inputs to leave the country as raw materials, but are fed into domestic supply chains to manufacture finished products or components.
This tumultuous period in Egypt’s history is a unique opportunity to forge a new economic contract recognizing the people’s ambition for better incomes and improved social conditions. Targeting Egypt’s G20 membership by 2050 gives the country a long-term vision through which to guide economic and social decision making. Launching the Suez Economic Corridor Commission to oversee a unified economic zone to the East and West of the Suez Canal creates a zone for accelerated economic growth. Using the Canal’s existing operations supported by favourable employment and business regulations creates an environment favourable to high levels of investment. These policy reforms would deliver an acceleration of economic growth, impacting development throughout Egypt.
The writer is a marketing and economic strategy consultant who has worked extensively in Egypt for donor programmes.
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