Coverage this week includes four cases of potential innocence in the appellate courts of Florida and Illinois. In three of the cases of potential innocence the state Supreme Court ordered a new trial (Illinois v. Tenney and Garcia v. Florida) or additional evidence to be heard (Illinois v. Johnson). In the fourth case, Swafford v. Florida, a bitterly divided Florida Supreme Court upholds conviction and a sentence of death despite a case of potential innocence that goes to the very marrow of Florida's death penalty scheme and the competency of that legal system in capital cases. The systemic problems highlighted by the dissent in Swafford v. Florida are "hot listed" this week.

The stay granted in Abdur' Rahman v. Bell reported last week has become a certiorari grant. [Petition for Certiorari] The issue before the court is the interplay between Rule 60(b) of the Civil Rules and the 28 U.S.C. § 2244.

The Federal District court for the Southern District of New York dropped a bombshell on Thursday holding that the death penalty may no longer be permissible under the Eighth Amendment in light of the large number of innocence cases. The Federal Death Penalty Resource Counsel website should have the decision and/or motion sometime Friday morning (http://www.capdefnet.org/fdprc/contents/recent_dev/recent_developments.htm). Further briefing has been ordered and a final decision on the issue should be handed down sometime this summer.

As if to punctuate the decision, across the East River from the Southern District, New York's third noncapital murder conviction, Hector Gonzalez, in as many months was reversed. Three more cases of probable innocence may, purportedly, result in exonerations in New York in the next few weeks thanks to the hard work of the Innocence Project, the legendary Legal Aid Society of New York, and lawyer turned talk show host Ron Kuby. In light of these developments the New York State Defenders Association's Innocence section is the Focus of the week.

Execution Information

Since the last edition the following have been executed:

The following executions dares are considered serious:*

HOT LIST

Swafford v. Florida, 2002 Fla. LEXIS 789 (4/18/2002) (dissents) Florida Supreme Court plurality affirms on a postconviction end that in the end boils down to a potential case of actual innocence being turned aside on procedural grounds in large part due to CCR being so inadequately staffed and resourced that it could not conduct a meaningful and timely post-conviction investigation and related litigation. The issues on appeal include (1) the State's false argument in 1990 as to its investigation and discarding of three potential suspects defeats any procedural bar that could arise from prior decisions of this Court; (2) the State failed to disclose evidence that was material and exculpatory; (3) the circuit court erred in refusing to admit or take judicial notice of the Overton Commission Report and the Shevin Report as to adequacy of staffing of the Capital Collateral Representative; (4) the circuit court erred in concluding that collateral counsel did not use due diligence in locating newly discovered evidence; and (5) the circuit court erred in denying Swafford's motion to disqualify the office of State Attorney John Tanner. The sole redeeming grace of the decision is that only three judges signed onto the majority opinion and therefore the plurality decision would seemingly lack full precedential value. [Note that additional information on Swafford's case is available at http://www.oranous.com/innocence/RoySwafford/].

To qualify as newly discovered evidence, Swafford must not only show that the evidence is new but also prove the evidence could not have been discovered earlier through the exercise of due diligence. A new trial will only be ordered after this threshold is met and the defendant shows that the newly discovered evidence is of such a nature as to probably produce an acquittal on retrial. See Melendez v. State, 718 So. 2d 746 (Fla. 1998); Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). Here, it appears that Swafford's CCR attorneys were diligent in trying to find Lestz, but were unable to do so until 1994 because Lestz moved, used fake addresses, and told his family not to disclose his whereabouts. As soon as Lestz was found, CCR obtained an affidavit and filed the third 3.850.

First, it is important to remember [*39] that Swafford's case arose during CCR's 1990s funding crisis. When CCR began working on the case, Governor Martinez had already signed Swafford's death warrant. This was common practice at CCR during that time period because CCR was understaffed and had to prioritize cases where death warrants had been signed. At that time, CCR had four experienced attorneys and a handful of attorneys who had just graduated from law school who had no experience in handling capital cases. Moreover, CCR was also working on eight other capital cases where the death warrants had been signed. Thus, there were limited resources and CCR could not have begun working on Swafford's case prior to September 7, 1990, which is the date the death warrant was signed.

Mr. Nickerson, Swafford's first CCR attorney, described the impossible working conditions at CCR at that time as follows:

Q. What kind of hours did you work in the weeks leading up to filing the 3.850 on Swafford's case?

A. Incredible hours. Just absolutely incredible. I was at CCR -- I had a couch in my office. I was sleeping in the office. There was a shower that was there. And basically I'm looking at waking up about 7:00 in the morning [*40] and working until 12:00, 1:00, 2:00, 3:00 in the morning and then trying to get some sleep and starting the cycle again.

Although Mr. Nickerson moved for additional time to investigate Swafford's case prior to the thirty-day deadline to file the 3.850, he was only able to get a short extension. The first 3.850 was filed on October 15, 1990, a mere six weeks after the death warrant had been signed. Although Mr. Nickerson was aware of Levi, Lestz, and Walsh as other possible suspects from some of the documents in his possession at the time he filed the first 3.850, he did not have time to investigate those leads because he was busy reading the record, finding the witnesses who had testified at the trial, and writing the initial 3.850. CCR did not have the funding to hire additional investigators, and the few who were on staff were sparsely divided between all of the priority cases. Mr. Nickerson had one investigator to work on Swafford's case, but that was only for a week or two at a time. He could not send out the new attorneys because they had no experience and did not know how to begin investigating. Thus, the majority of the investigation had to be done by Mr. Nickerson.

Despite [*41] the fact that Mr. Nickerson had included in the 3.850 motion information concerning outstanding public record requests which had not been received prior to the deadline for filing the brief and had indicated that he would be filing an amended brief when those documents were received, the trial court summarily denied 3.850 relief on October 24, 1990, less than two months after the signing of the death warrant. At that point, Mr. Nickerson had to discontinue all investigations and concentrate on the appeal to this Court based upon the record as it existed below. During that time, Mr. Nickerson received over 1000 documents related to the case, many of which he had only had a chance to briefly glance at prior to filing his brief in this Court. In describing the process, Mr. Nickerson commented:

I remember that it was so bad that the appendix that was submitted to the Florida Supreme Court on the brief to them was scary. Because we were submitting in -- we just had to take documents, put them all together and give them to the Florida Supreme Court saying, we haven't had a chance to look at them, this is what they have provided us, we think these support our allegations. And they were [*42] submitted to the [Court] without any type -- attempt to try and integrate them, because we didn't have time.

This Court affirmed the summary denial, which forced Mr. Nickerson to file a federal habeas corpus action. The Eleventh Circuit ultimately stayed the case.

Around November of 1990, after the Eleventh Circuit granted the stay, Mr. Nickerson resigned from CCR. The case was not officially reassigned to another lead attorney until approximately April of 1991, when Mr. McClain joined CCR and inherited it. The reason for the delay between December of 1990 and April of 1991 was that there were no experienced CCR attorneys available to take the lead on the case and it was a lower priority than many of the other capital cases which had not been stayed. Mr. McClain assigned the task of finding Levi, Lestz, and Walsh to a young attorney named Mr. Shabazz.

Mr. Shabazz testified that between April 1991 and October 1992 he was responsible for trying to locate Levi, Lestz, and Walsh. Mr. Shabazz tried many avenues to accomplish this task, including checking with Florida and federal prison systems, Florida and other likely states' departments of motor vehicles, credit computer [*43] checks, and a national tracking organization called Global Tracking. At that time, Global Tracking was the best method for finding individuals who did not want to be found. Unfortunately, none of these attempts were successful.

In October of 1992, CCR hired Mr. Chavis as an investigator. The responsibility to find Levi, Lestz, and Walsh was then turned over to him. Mr. Chavis pursued many of the same avenues that Mr. Shabazz had previously pursued, including contacting Global Tracking on at least two occasions in 1993 and 1994. In 1993 Global was unable to find an address for Lestz; however, in 1994, Global was successful. Mr. Chavis promptly flew to Indiana to pursue Lestz. Within two to three weeks of getting the address from Global, Mr. Chavis obtained the affidavit referenced above. The third 3.850 was filed within two weeks of receiving this affidavit.

The court below found that CCR was not diligent in pursuing Mr. Lestz after 1990 and therefore the affidavit did not meet the threshold requirement for newly discovered evidence. The court primarily relied upon three pieces of information that CCR had access to: (1) Lestz's former address; (2) Lestz's brother's name; and (3) [*44] Lestz's probation officer's name. The court reasoned that CCR should have flown to Illinois to personally investigate the old address. The court concluded that if CCR had done this, it would have discovered that Lestz's brother lived in a small town in Illinois, near the town where Lestz lived. By going to these small towns, CCR should have been able to discover Lestz's address and been able to get the affidavit by 1992. The court also relied upon the fact that CCR did not approach Lestz's brother or probation officer to get information on his whereabouts.

The court's logic appears to be flawed because it was premised on an illogical conclusion and anchored in a foundation of hindsight. First, the court premised its argument on an illogical conclusion that CCR attorneys or investigators should have jumped on a plane to personally investigate the old Illinois address. This premise gives no consideration to the fact that the address in the police reports was seven years old in 1990 and that all of CCR's attempts to link this address with Lestz were unsuccessful. CCR repeatedly called the phone numbers associated with the old address and could never get anyone to acknowledge that they [*45] even knew Lestz. The police reports had painted Lestz as a transient drifter traveling the country and supporting himself by stealing. Lestz even testified that he never stayed in an area for more than a week at a time from age thirteen until he was thirty years old in 1982. He also testified that the address contained on his Illinois driver's license was a false address of a hotel where he would stay sometimes when he drifted into Southern Illinois. Accordingly, the court's premise, that CCR was not diligent for failing to jump on a plane and fly to Illinois, appears to be illogical when there was no information to show that the address had any current links to Lestz's whereabouts.

The court also errs in relying upon the clarity of hindsight. The court concludes that by going to a small town it would have been easy for CCR to find Lestz. This analysis seems clear when the whole picture has been painted; however, this Court should look at CCR's actions and judge the reasonableness of the actions based upon the facts known to CCR at that time. Lestz moved two times after getting out of prison. The first time was to the small town near the town where the seven-year-old address was located. [*46] The second move was to another small town a few miles away. The court concluded that this trail should have been easy to follow because the town was small and nearby, but it does not explain how CCR should have done this. First, as discussed above, CCR was not able to link Lestz with the first small town. Second, there was a move after the first move. Lestz never forwarded any mail and put all traceable documents in his brother's name. Lestz's reason for doing these things was that he did not want to be found.

The court also states that CCR should have been able to get Lestz's address from his brother or his probation officer. This is not supported by the record. In fact, Lestz testified that his entire family was told not to tell anyone where he was because he did not want to be found. His former probation officer told the state's investigator information about Lestz, but specifically told her that the only reason he was allowed to give her the information was because she worked for the state. Accordingly, there was nothing in the record to support the court's analysis that talking to Lestz's brother and probation officer would have revealed his whereabouts.

The court's analysis [*47] looks at what CCR did not do, rather than looking at the actions CCR took. CCR called the phone numbers associated with the former address trying to make a link to Lestz, checked with the state and federal prison systems, ran credit checks, and hired a tracing company which specializes in finding people who do not want to be found. This is not a case where the defendant's counsel has intentionally waited until the eleventh hour to file a last-minute appeal alleging a whole new series of facts. Rather, CCR made systematic and continuous efforts to locate Lestz, Levi, and Walsh. Thus, it appears CCR acted with due diligence, and the trial court's contrary decision is not supported by competent, substantial evidence in the record.

Prejudice

Having demonstrated due diligence in presenting his claims to the courts, Swafford must also show that the new evidence substantially undermines confidence in the outcome of prior proceedings or is of such a nature as to probably produce an acquittal on retrial. See Robinson v. State, 707 So. 2d 688 (Fla. 1998); Blanco v. State, 702 So. 2d 1250 (Fla. 1997). As directed in Swafford v. State, 679 So. 2d 736 (Fla. 1996), [*48] a determination must be made whether the statement in conjunction with the evidence introduced in Swafford's first and second 3.850 motions, as well as the evidence introduced at trial, would have probably produced an acquittal. See State v. Gunsby, 670 So. 2d 920 (Fla. 1996). Swafford has also demonstrated this prong of his newly discovered evidence claim.

From the time of his arrest, Swafford has maintained his innocence. During opening argument the defense indicated the evidence would demonstrate that innocence: evidence that included a composite drawing n2 which did not resemble Swafford; a description by a witness, Paul Seiler (Seiler) that was not a description of Swafford; a description of the last vehicle to leave the FINA station, the vehicle believed to be involved in the abduction of Rucker that was not the vehicle Swafford was in; and the fact that the gun from the Shingle Shack was given to the police by a bouncer. During Seiler's deposition he was sure of the descriptions he had given to the police. He even indicated he had seen the person and the car a few days later; he followed the car to the Hidden Hills neighborhood, recorded the tag number, and [*49] called the police with a further description and indicated he could positively identify the driver of the vehicle. However, at trial Seiler's description of the individual was more tentative, and he could not remember how he arrived at the description he gave the police.

Swafford's initial motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 contained a number of allegations that the State violated the principles espoused in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by withholding exculpatory or impeaching evidence from the defense. At the first 3.850 proceeding it was revealed that prior to trial, Seiler was arrested and indicted on charges of sexual acts with [*50] children. Four months after he testified in the Swafford trial, Seiler pled guilty and did not receive any jail time. It was also learned that Seiler had been hypnotized by the police to clarify his memory. This information was not disclosed to defense counsel.

In closing argument, defense counsel pointed out the inconsistencies in the State's case, such as the fact that the bouncer indicated he retrieved the gun from the men's room and gave it to the police, while a waitress from the Shingle Shack testified she escorted Swafford to the ladies' room, saw him put the gun in the trash in the ladies' room, and the police retrieved it from that location. Counsel also opined that Roger Harper (Harper), whom Swafford implicated in a robbery, implicated Swafford in the murder case to further his own chances of getting out of jail. Furthermore, counsel pointed out the fact that Harper was in touch with his family, the Johnsons, while he was in jail, and that one of the Johnsons testified at trial concerning an alleged conversation with Swafford about getting a girl and shooting her. Counsel also indicated that it was only after Harper cooperated with the police that they tested the gun retrieved [*51] from the Shingle Shack.

At the initial 3.850 hearing, information was revealed that Harper was granted early release in exchange for his testimony at the Swafford trial. He also received a $ 10,000 reward from the FINA Corporation for cooperating at trial. Harper blamed Swafford for the breakup of his marriage and was instrumental in getting his family member from Tennessee to testify against Swafford.

Another Brady allegation in the first 3.850 motion was that the State violated Brady by withholding police investigative and other reports regarding Walsh, Levi, and Lestz. These investigative materials revealed the following information which pointed to other persons as the likely perpetrators of the murder. Rucker was shot nine time with different bullets, one of which was homemade. The Lestz affidavit puts Walsh in possession of two .38 caliber weapons. There was also evidence that Walsh had various .38 bullets, and that his modus operandi was using various .38 caliber shells. Several types of .38 bullets were removed from Rucker's body during the autopsy. Walsh has a history of sexual conduct, and even burned Lestz with cigarettes during a homosexual encounter. Similar [*52] cigarette burns were found on the murder victim's body. Additionally, Walsh's wife had a car that was similar to the description given to the police by Seiler.

When Walsh was interviewed by the police, he became nervous when asked about Rucker. When he was arrested for a robbery, he had a composite BOLO of the Rucker murder suspect in his back pocket, and that composite resembled him. The arresting agency called the Volusia County police to give them this information. Also, there were statements made by Lestz concerning Walsh, including a statement that Walsh admitted committing three murders in Florida and that one of the three victims was a white female. Lestz placed Walsh in the vicinity of the murder at a laundromat one day before the murder. Additionally, Lestz told investigators that Walsh and Levi n3 left the motel around 6 a.m. on the day of Rucker's murder. The Lestz affidavit also places Walsh in the Shingle Shack trying to dispose of two .38 caliber guns at or near the same time that the police either were given or retrieved a gun from one of the restrooms at the Shingle Shack.

Thus, when the evidence from the trial, the evidence from the prior 3.850 proceedings, and the newly discovered evidence are viewed for their cumulative effect, Swafford has demonstrated he is entitled to a new trial. Defense counsel promised the jury in his opening statement that he would show that Swafford was not guilty and that someone else committed the murder. But defense counsel's only real witness was Seiler, a person who had originally given the police a description of someone at the FINA station, a description that did not match Swafford. However, by the time of trial, Seiler was tainted, incredible, and unable to remember whether he could actually identify the person he saw, even saying he could not rule out Swafford. Defense counsel had no idea why Seiler was suddenly unable to confirm his initial description. Defense counsel was unaware of Seiler's own problems with the criminal justice system and did not know that the police had hypnotized Seiler to help clarify his memory.

Additionally, defense counsel was not given information concerning the prior investigations of Walsh, Levi, and Lestz. Thus, defense counsel was unable to present testimony that Walsh was the person [*54] who matched the description given by Seiler. Had defense counsel been given the investigative materials, he could have identified Walsh as the man in the composite. Moreover, defense counsel would have been able to connect Walsh with the type of bullets removed from the victim's body based in part on the Lestz affidavit, which connected Walsh with .38 caliber weapons and ammunition.

This cumulative evidence also indicates that the other investigations that were commenced were suddenly abandoned when Harper approached the police and implicated Swafford. Defense counsel was not provided with copies of all of the correspondence between the State and Harper negotiating Harper's testimony. Harper negotiated to be released from jail in exchange for his testimony. This information, coupled with the fact that Johnson, the witness who said he talked with Swafford about finding a girl, and Harper were relatives, provides a much more compelling impeachment tool.

In reviewing the impact that the withheld materials might have on the defendant's case, we must assess the cumulative effect of all of the evidence. See Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995). [*55] We should assess the importance of the suppressed materials together with the evidence actually presented in the case. Additionally, we must consider not only the fact that the suppressed evidence deprived Swafford of direct evidence but that it also hindered his ability to investigate other aspects of the case. As the United States Supreme Court directed in United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985), we must consider any adverse effect the prosecutor's failure to disclose information might have had on the defendant's ability to prepare and present evidence. This defendant was left without the tools to demonstrate and argue to the jury his theory of the case, that another person committed the murder.

The highly circumstantial evidence produced at trial, along with the evidence Swafford claimed in his first 3.850 motion was not disclosed by the State concerning other suspects and witnesses, when considered in conjunction with the Lestz affidavit, would probably produce an acquittal at trial. I would therefore reverse the trial court's decision denying 3.850 relief and remand this case for a new trial.

SUPREME COURT

Abdur' Rahman v. Bell, --- U.S. --- (U.S. 4/8/2002) The Court gratned cert on of the interplay between Rule 60(b) of the Civil Rules and the 28 U.S.C. § 2244.[Petition for Certiorari]

1. Whether the Sixth Circuit erred in holding, in square conflict with decisions of this Court and of other circuits, that every Rule 60(b) Motion constitutes a prohibited “second or successive” habeas petition as a matter of law.

2. Whether a court of appeals abuses its discretion in refusing to permit consideration of a vital intervening legal development when the failure to do so precludes a habeas petitioner from ever receiving any adjudication of his claims on the merits.

CAPITAL CASES (Favorable Disposition)

Illinois v. Tenney, 2002 Ill. LEXIS 310 (Ill 04/18/2002) As the government's case-in-chief was underwhelming, exclusion of a nontestifying witnesses inculpatory statements that tended to exonerate the accused was reversible error.

Garcia v. Florida, 2002 Fla. LEXIS 787 (FL 04/18/2002) Conviction reversed for failing to permit impeachment one of the state's chief witnesses with prior inconsistent statements, erred in admitting certain hearsay statements (including one of the victims' alleged distrust of the accused) and erred in excluding co-defendant's statements exonerating Garcia in the guilt and penalty phase.

Illinois v. Johnson, 2002 Ill. LEXIS 301 (Ill 04/18/2002) The trial court, sitting in post conviction review, erred in refusing to allow DNA testing of the "Vitullo rape kit," erred in dismissing without an evidentiary hearing the defendant's post-conviction claim that he received

CAPITAL CASES (Unfavorable Disposition)

Hurst v. Florida, 2002 Fla Lexis 784 (FL 4/18/2002) (dissents) Death sentence upheld despite striking of one of the three aggravating circumstances (avoiding arrest aggravating circumstance struck) even though the trial court may have erred in affording enough weight to mitigation evidence.

Riddle v. Cockerell, 2002 U.S. App. LEXIS 6855 (4/15/2002) Testimony by the trial prosecutor during the guilt phase of trial and counsel's failure to object to that testimony was not sufficiently egregious to warrant habeas relief even assuming there was no "reasonable tactical basis" for such failure to object.

Cooey v. Coyle, 2002 U.S. App. LEXIS 6875 (6th Cir 04/16/2002) State court's reweighing of death sentence was well within the permissible realm that the AEDPA's deference requires. Counsel's performance fell within Strickland's permissible range concerning failure to argue that aggravating circumstances should not have been merged, failing to adequately inform his client concerning jury waiver at sentencing, not objecting to prosecutorial misconduct, not challenging the three-judge sentencing court's composition and failing to conduct an adequate mitigation investigation.

OTHER NOTABLE CASES

Johnson v. McKune, No. 003113 (10th Cir 04/15/2002) Retroactive application Sandstrom v. Montana is not possible under the nonretroactivity doctrine announced in Teague. Appellant properly preserved the Sandstrom issue by raising it in his first of four postconviction motions.

Tiede v. Texas, No. 1348-00 (Tex Crim App 04/17/2002) Remand ordered on question of whether the exclusion of a psychiatrist's proffered testimony at the punishment stage of the trial deprived defendant of his constitutional right to present witnesses to establish a defense,

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

The Focus this week is on innocence and New York. The New York State Defenders Association (whose website www.nysda.org is nothing short of amazing) online examination of innocence (http://www.nysda.org/Hot_Topics/Eyewitness_Evidence/eyewitness_evidence.html) is the focus of the week as it covers many of the basics that go into building a successful claim of actual innocence at trial and on appeal.

Current Developments

• Bronx judge lays out standard for admitting expert eyewitness evidence in light of New York Court of Appeals opinion in People v Lee. Standard Set for Expert Evidence, New York Law Journal, April 11, 2002
• All surveillance photographs to be preserved by law enforcement for discovery according to a Brooklyn Supreme Court Justice. Police Must Turn Over to Defense All Taxi Photos, New York Law Journal, April 1, 2002
• Expert testimony supported decision to suppress identification testimony of police officer in Brooklyn Family Court. Judge Suppresses Identification by Eyewitness, New York Law Journal, February 25, 2002. Read more about the expert witness,Dr. Jonathan Schooler, Professor of Psychology, University of Pittsburgh
• Wrongly accused defendant filed suit against Brooklyn DA for delaying disclosure of exculpatory surveillance tape. Wrongly Jailed Man Sues Brooklyn DA, Newsday, December 14, 2001
• Brooklyn court has ordered first sequential line-up in a New York criminal case. Judge Orders First Use of Sequential Lineup, New York Law Journal, November 9, 2001
• New Jersey Attorney General has issued guidelines to improve the fairness of identification procedures. New Way to Insure Eyewitnesses Can ID The Right Bad Guy, New York Times, July 21, 2001. Read the guidelines, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (NJ Dept of Law and Public Safety 2001)
• Bronx Defenders advocate new method for conducting police lineups to reduce risk of misidentification. Court Declines to Order Change in Lineup Rules, June 29, 2001 and Lawyer Dares Bronx Judges to Change the Way the Police Conduct Lineups, New York Times, June 28, 2001
• Review of changing judicial views about expert evidence on eyewitness identification. Judicial Attitudes and Expert Testimony on Eyewitness Identifications, New York Law Journal, June 8, 2001
• New York ruling on admission of expert testimony has fueled debate over reliability of eyewitness testimony. Eyewitness Testimony Faces Increasing Criticism, National Law Journal, May 18, 2001
• Court of Appeals opened the door for the admission of expert evidence on eyewitness identification. Court Lets Experts Challenge Witnesses' Accuracy in Trials, New York Times, May 8, 2001. Read the court's decision in People v Lee, 1 No. 57 (NY May 8, 2001)
• Face recognition technology tested for use by law enforcement. Face-Recognition Systems Offer New Tools, But Mixed Results, New York Times, May 3, 2001
• Trial of panhandler in New York City brick attack case focused attention on the dubious nature of eyewitness identification. When Justice Hinges on What Is Seen, and Believed, New York Times, December 4, 2000
• Defense presented expert evidence challenging identification made in New York City brick attack case on Nicole Barrett. In Brick-Attack Trial, Questions Over Identifications of an Assailant, New York Times, November 25, 2000
• A white witness over time is more than likely to misidentify a white suspect as being African-American according to a Penn State Researcher. Memory of Criminal Suspects Can Go From White to Black, Penn State News, December 14, 1999) and White Suspects 'Misremembered' as Black, Voices of Central Pennsylvania, February, 2000. Eyewitness Evidence: A Guide for Law Enforcement (National Institute of Justice, October 1999) [PDF]
• 'Yes, I'm Sure That's Him': Eyewitness Reliability Under Question by Experts, Courts , American Bar Association Journal, October 1999
• Handbook on Questioning Children: A Linguistic Perspective (2nd ed. 1999)
• A cross-racial instruction should be given only when, as in the present case, identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability. State v. McKinley Cromedy (A-166-97) (NJ April 14, 1999). New Jersey Supreme Court ruled that failure to give special jury instruction on cross-racial identification is reversible error. Special Jury Instructions Needed if Cross Racial ID Uncorroborated, New Jersey Law Journal, April 19, 1999
• Distortions in Eyewitnesses' Recollections: Can the Post-identification Feedback Effect be Moderated?, Psychological Science, 1999
• Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads (White Paper 1998)

Special Reports

SEQUENTIAL LINE-UPS

Scientific research shows that sequential lineups will produce fairer results and reduce the risk of misidentification. The Bronx Defenders Office, among others, has filed motions in many cases asking courts to order sequential line-ups, for more information contact David Feige, (718) 838-7878.

Decisions and Motions

• People v. Wilson, New York Law Journal (Brooklyn Sup. Ct. March 22, 2002) (motion granted in part; double-blind non-sequential lineup ordered)
• People v. Alcime, New York Law Journal, February 19, 2002 (Sup. Ct. Kings Co.) (motion denied)
• People v. Martinez, New York Law Journal, January 18, 2002, p. 18, col. 3 (Sup. Ct. NY Co.) (motion denied)
• Defendant's Motion (2.6 MB PDF)
• Defendant's Memo of Law (433K PDF)
• Prosecutor's Motion (1.2MB PDF)
• In re Thomas, No. 42374-01(Supreme Court Kings County November 14, 2001) (761K PDF) (motion granted)
• Prosecutor's Motion (1.2MB PDF)
• New York Capital Defender Office
• Defendant's Motion (2.6 MB PDF)
• Defendant's Memo of Law (433K PDF)
• Defendant's Motion in Opposition (131K PDF)
• Expert's Affidavit (72K PDF)
• Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations (Law and Human Behavior 2001) (76K PDF)
• People v. Franco, No. 903-01 (Supreme Court Bronx County June 28, 2001) (429K PDF)
• Prosecutor's Motion (535K PDF)
• Bronx Defenders Office
• Defendant's Motion (16.4 MB PDF)

Articles

• Police Lineup Rules Questioned by Judge, New York Law Journal, March 21, 2002
• Courts Give Suspicious Glances to Cop Lineups, New York Post, December 23, 2001
• Cutting Edge: Criminal Lawyers Fight For New Lineup, LexisONE, November 26, 2001
• Judge Orders Rare Lineup of Suspects One at a Time, New York Times, November 9, 2001
• Judge Orders First Use of Sequential Lineup, New York Law Journal, November 9, 2001
• Court Declines to Order Change in Lineup Rules , June 29, 2001
• Lawyer Dares Bronx Judges to Change the Way the Police Conduct Lineups, New York Times, June 28, 2001

PSYCHOLOGY AND THE LAW

A collection of tutorials, literature, research and links, sponsored by the Criminal Justice & Behaviour Research Centre in the School of Psychology, Victoria University of Wellington, Wellington New Zealand.

• Who Done It? Identifying a Suspect: Eyewitness Issues
• The Police Officer and Eyewitness Memory
• Is that What You Wanted Me to Say? Suggestible Interviewing Techniques Used with Children
• Is that What Really Happened? Memory and the Misinformation Effect
• Recovered Memory

Reports

• Eyewitness Evidence: A Guide for Law Enforcement (NIJ 1999) is intended to provide local law enforcement with recommendations for improving the accuracy and fairness of identification proceedings, including the use of sequential lineups.

• Drawing a Blank (ACLU 2002). TheAmerican Civil Liberties Union investigated a police experiment in face recognition technology conducted in Tampa, Florida. The face recognition software used a point matching system to compare scanned faces with images stored in a database. According to the ACLU report, the "system has never correctly identified a single face in its database of suspects, let alone resulted in any arrests."

• Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (NJ Dept of Law and Public Safety 2001)

• Model Identification Rules: An Act to Improve the Accuracy of Eyewitness Identification Procedures (American Psychology Law Society)

Law Reviews and Scholarly Articles

• Admissibility of Expert Identification Testimony in New York After People v Anthony Lee, Public Defense Backup Center Report, June 2001 (PDF)
• Distortions in Eyewitness Recollections: Can the Post-Identification Feedback Effect be Moderated?, 10 Psychological Science 138 (1999)
• Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law and Human Behavior 603 (1998)
• Good You Identified the Suspect: Feedback to Eyewitness Distorts Their Reports of the Witnessing Experience, 83 Journal of Applied Psychology (No. 3) 360 (1998)
• It's Him-Or Is It? Mistaken Identity Can Land Innocent People in Jail? (ABC News 1998)
• No Confidence: A Step Toward Accuracy in Eyewitness Trials, Champion, Jan/Feb. 1998
• Eyewitness Identification Sample Questions, 24 California Attorneys for Criminal Justice Forum (No. 2 1997)
• Attacking Reliability of Eyewitness Testimony after Daubert, Champion, June 1997, at 60
• Eyewitness Identification: 'I Noticed You Paused on Number Three,' Champion, November 1996, at 10
• In the Eye of the Beholder: Did the Witnesses Really See What They Think They Saw?, Champion, November 1996
• Capital Cases--Dead Wrong: Mistaken Identifications and Capital Prosecutions, Champion, June 1989, at 42
• Disputed Eyewitness Investigations: Can Experts Help?, Champion, June 1989, at 10
• Exposing the Fallibility of the Eyewitness, Champion, April 1986, at 14

Books

• New York Identification: The Wade Hearing, The Trial (Gould Publishing 1998). This resource contains an exhaustive review of New York Identification Law including up-to-date citations and statute references. Reviewed in New York Identification Law—The Wade Hearing—The Trial, Public Defense Backup Center Report, June-July 1998, at 8
• The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (St. Martin's Press 1996). "The nation's leading expert on memory exposes the recent wave of sex abuse charges based on 'repressed memories' as a modern-day version of the Salem witch trials. " New York Review of Books
• Mistaken Identification: The Eyewitness, Psychology, and the Law, (Cambridge University Press 1995). This book reviews "the empirical research bearing on the adequacy of procedural requirements for eyewitness identification and concludes that traditional safeguards such as presence of counsel at lineups, cross-examination, and judges' instructions, are ineffective safeguards against mistaken eyewitness identification."
• Witness for the Defense: The Accused, the Eyewitness and the Expert Who Puts Memory on Trial (St. Martin's Press 1991). "[Elizabeth] Loftus, a psychologist and an expert on memory, has testified on the fallibility of eyewitness identification in over 150 trials during the last 16 years. Here she recounts her experiences as an expert witness for various defendants, including Steve Titus, whose rape conviction was overturned with her help. She also presents her review of the John 'Ivan the Terrible' Demjanjuk case. In discussing her research on memory, Loftus reveals how some information is lost from memory or never stored." Library Journal
• Eyewitness Testimony (Harvard University Press 1980). "[T]his engaging and highly praised study makes the psychological case against the reliability of the eyewitness. By shedding light on the many factors that can intervene and create inaccurate testimony, Elizabeth Loftus illustrates how memory can be radically altered by the way an eyewitness is questioned, and how new memories can be implanted and old ones changed in subtle ways." [Reprinted in 1996]

Research Links

General

• Eyewitness Laboratory in Psychology (University of Texas at El Paso)
• Eyewitness Research References (University of Nebraska)

Experts

• Elizabeth Loftus (University of Washington)
• Steven D. Penrod (John Jay College of Criminal Justice)
• Jonathan Schooler (University of Pittsburgh)
• Robert W. Shomer (California)

Gary Wells (Iowa State University)

OTHER NEWS

The Death Penalty Information Center reports:

Judge Questions the Constitutionality of Federal Death Penalty

U.S. District Judge Jed S. Rakoff said he was ready to declare the federal death penalty unconstitutional on the ground that innocent people are being sentenced to death "with a frequency far greater than previously supposed." In an order regarding the death penalty eligibility of two men facing capital charges, Rakoff wrote: "If the court were compelled to decide the issue today, it would . . . grant the defendants' motion to dismiss all death penalty aspects of this case on the ground that the federal death penalty statute is unconstitutional." Rakoff is giving federal prosecutors an opportunity to present arguments on the subject before he issues his final ruling in late May. (Associated Press, 4/25/02) See also, Innocence and the Federal Death Penalty.

Inmate Facing Execution May Be Innocent

A recent editorial in the St. Louis Post-Dispatch urged clemency for a Missouri death row inmate who may be innocent:

Gov. Bob Holden has on his desk a pardon application from one of several Missouri death row inmates who have strong cases of wrongful conviction. He is Joseph Amrine, who has spent 16 years on death row for a prison murder. All of the key evidence against him has been refuted or recanted. Yet Amrine's date with the executioner is approaching.

Amrine's case illustrates the same serious flaws that led to the wrongful convictions of 13 men in Illinois: no physical evidence; self-interested witnesses; alleged misconduct by investigators; poor defense lawyer and an appeals process stacked against defendants.

. . .

Mr. Holden should spare Amrine's life and order a inquiry into other cases of wrongful conviction on death row. Then he should go one further step -- the courageous step Gov. George Ryan took -- and suspend the death penalty while a commission studies the system's failures.

(St. Louis Post-Dispatch, editorial, 4/23/02) (Amrine was convicted on the testimony of three other inmates, one of whom was first suspected of the killing. When questioned about the murder, all three inmates gave different accounts of what happened. In addition, all three have since retracted their testimony, saying they gave it only under heavy pressure from prison authorities in exchange for easier living conditions and eventual parole. (Independent.co.uk, 4/13/02)). See also, Innocence and the Death Penalty.

NEW RESOURCES: "State Killing in the English Speaking Caribbean: A Legacy of Colonial Times"

A new report, released on April 23, by Amnesty International notes that the judicial systems of the English-speaking Caribbean that administer the death penalty fall short of international standards governing the imposition of capital punishment. "Inadequate provision for defence lawyers, both at the trial and on appeal, the imposition of death sentences on those suffering from mental health problems and the use of coerced confessions are all commonplace violations of international standards in the English-speaking Caribbean," said Piers Bannister, the organization's researcher on the region. "Even the most ardent supporter of the death penalty should be concerned at the quality of the judicial system employed to inflict the ultimate punishment." (Amnesty International Press Release, 4/23/02). Read the report. See also, International Death Penalty.

U.S. Supreme Court to Hear Tennessee Death Penalty Case

The U.S. Supreme Court has agreed to hear the case of Tennessee death row inmate Abu-Ali Abdur'Rahman. A lower court ruled that it was too late for Abdur'Rahman to present new evidence in federal court. The Supreme Court will decide when new developments in a criminal case can be brought in federal court. Abdur'Rahman claims that prosecutors did not turn over exculpatory evidence and misled jurors. Moreover, his own trial attorney did not present mitigating evidence that jurors now say would have kept them from sentencing Abdur'Rahman to death. Abdur'Rahman v. Bell, No. 01-9094, is scheduled to be argued next fall. (Associated Press, 4/22/02) For more information see Abu-Ali Abdur'Rahman. See also, Supreme Court.

New Voices: Democrats should "take the high ground on capital punishment"

In a recent op-ed in The New York Times, Bill Keller suggests that Democratic presidential hopefuls either voice opposition to the death penalty or stand behind death penalty reform efforts, such as those cited in the recent Illinois Capital Punishment Commission's report (see below):

A gutsy Republican governor, George Ryan of Illinois, has now pointed the way to a moral high ground that happens to be politically tenable, too. Mr. Ryan appointed a commission rich in courtroom experience to study the state's practice of capital punishment, and this week it produced a clearheaded (and surprisingly readable) document. The report inventories the arbitrary and error-prone system that puts people Ñ sometimes the wrong people Ñ on death row. It proposes a menu of reforms, among them videotaping interrogations to prevent dubious confessions, expanded use of DNA testing and diminishing reliance on single-witness or stool-pigeon accounts. Democrats should press for a nationwide moratorium on executions pending real reforms to minimize the risk of killing people by mistake.

Real boldness would be to join a narrow majority of the Illinois commission, and the rest of the civilized world, in disavowing the death penalty as a barbaric practice. But the Ryan commission offers a political halfway house for the less courageous. "Repair or repeal," said Thomas P. Sullivan, the former prosecutor and co-chairman of the Illinois commission. "Fix the capital punishment system or abolish it. There is no other principled recourse."

(New York Times, op-ed, 4/20/02) See also, New Voices.

Ohio Execution Set Despite Evidence of Racial Bias

Alton Coleman is to be executed in Ohio on April 26 even though the jury selection at his trial appears tainted with racial discrimination. ÊThe state used 75% of its discretionary strikes to eliminate 9 potential black jurors at Coleman's trial. ÊAlthough objections were made by trial counsel, the defense attorneys failed to raise this issue in Coleman's original appeal. ÊThe U.S. Supreme Court has agreed to hear a case in its next term regarding racial bias in jury selection. ÊSee the ACLU's Press Release.

New Voices: Judge Who Imposed Sentence on Innocent Man Says He Doubted Prosecution's Case

Judge James McDougall sentenced Ray Krone to life in prison in 1996, even though he had serious doubts about the case. Krone, who was exonerated by DNA tests last week (see below), was originally sentenced to death in 1992, but was granted another trial. Judge McDougall presided over that second trial, and says he has been thinking about the case every day since Krone's release. "I keep going over and over it in my mind, and it still bothers me," said McDougall. The judge says he doubted the prosecution's case, which he says was largely circumstantial, but felt he could not go against the jury's guilty verdict. McDougall says he even considered calling for a new trial, but did not. (Associated Press, 4/13/02) See also, New Voices and Innocence and the Death Penalty.

Amnesty International Report Shows Decline in Use of Death Penalty Internationally

A new report by Amnesty International states that over half of the countries in the world no longer use capital punishment. The report also notes:

111 countries have abolished the death penalty in law or practice

Over 30 countries and territories have abolished the death penalty for all crimes since 1990, including countries in Africa, the Americas, Asia, and Europe

Recent crime figures from abolitionist countries show that abolition does not have harmful effects. In Canada, or example, the homicide rate fell 43% from a high of 3.09 in 1975, a year before the abolition of the death penalty, to 1.76 in 1999.

(Chicago Tribune, 4/15/02) Read the report. See also, International Death Penalty.

Execution of Juvenile Offender Scheduled in Missouri

Chris Simmons is to be executed in Missouri on May 1. Simmons, a 17 year-old high school student at the time of the crime, was under the influence of drugs and alcohol and was also found to be suffering from schizotypal disorder, a mental illness. At trial, Simmons' attorney failed to present evidence of this mental disorder or evidence of Simmons' childhood abuse by his father. (Missourians to Abolish the Death Penalty, Action Alert, 4/13/02)

Currently, there are 83 juveniles on death row across the U.S., and 2 on death row in Missouri. Since the death penalty was reinstated, Missouri has executed one juvenile offender. See also the American Bar Association Juvenile Justice Center's Web page on the Simmons case and Juvenile Death Penalty.

Note: Simmons' execution was stayed by the Missouri Supreme Court until June 5.

OTHER RESOURCES:

If you have found this e-zine useful you might want to visit: www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised).

SUBSCRIBING & ARCHIVES

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CITATION

This edition may be cited as:

Capital Defense Weekly, Volume V, Issue 14 (http://capitaldefenseweekly.com/archives/020422.htm).