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Rising number of exonerees reflects flaws in justice system

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Justice in Question

The legal system isn’t perfect, and sometimes innocent people go to prison.

That’s true even in Indiana, a state with its share of exonerees as evidence that justice failed the first time around. The potential for that number to rise is expanding here just as it is nationally, as a growing number of convicts hope to add their names to the list of the exonerated. They’re doing this by turning to methods that have freed others who were wrongfully convicted, as well as new issues that continue surfacing in the nation’s court system.

Attorneys and advocates may recite any number of underlying, intangible reasons - a demanding public and political pressure on police and crime-tough prosecutors, overloaded public defenders, and congested court calendars. But the practical reasons can be found with witness misidentifications, invalid or faulty forensic science, or investigative techniques that have been modified or disproven through the years.

Whatever the reason, attorneys know it all comes down to getting it right the first time, and when that doesn’t happen, cleaning up the legal or investigative mess from years or even decades before. They must look in the mirror and at the state’s system, learning from wrongful-conviction cases about how to ensure better justice in the future.

“This is very frustrating work,” said Hilary Bowe Ricks, an Indianapolis attorney who represents clients believed to have been wrongfully convicted. “It’s a very long process, and you can’t fix what happened. You can only make sure it doesn’t continue. But maybe, by doing all of this, we can show that we’re sometimes too quick to judge.”
 

Common causes

Contributing causesThe most common factors leading to wrongful convictions are eyewitness misidentifications and invalidated or improper forensics, followed by false confessions or admissions, and bad information from informants or snitches. The New York-based nonprofit Innocence Project reports that 238 people have been exonerated nationally because of post-conviction DNA testing. In Indiana, four of the five DNA exonerations have also involved witness misidentification, consistent with the national trend of that being a factor in 75 percent of wrongful-conviction cases, according to Stephen Saloom, an attorney and the Innocence Project’s policy director.

“These DNA cases give us a window into the arena of wrongful convictions and what causes them, and that goes far beyond the window through which we’re looking,” he said.

Some say the legal review process should be more like when an airplane crashes and investigators scour the wreckage to discover what went wrong and learn from the experience. Even with appellate review the courts don’t always take notice of the errors that can occur in the initial stages, a result of appeals judges not typically reconsidering a jury’s factual findings but instead focusing on procedural matters, whether the trial judge handled evidence and issues appropriately, and broader legal theories.

A Columbia Law Review article published in 2008 by University of Virginia Law professor Brandon L. Garret looked at the trials and appeals of 200 people convicted of violent crimes for which they were later exonerated because of DNA evidence. He found only 18 were granted reversals, while 67 had their appeals denied without any written ruling. In 63 cases, the appellate court’s opinion referred to the defendant’s guilt while in 12 others, the courts referred to the “overwhelming” evidence of guilt. Of the remaining cases, the appeals courts either found the defendant’s appeal without merit, or found some merit in defendant’s claims but ruled the trial court’s errors were “harmless” or unlikely to have affected the jury’s verdict.

That’s only to date, though. Even without DNA factors, emerging areas of forensic science are casting more doubt on the justice once given by juries and judges and later reviewed by higher courts. For example, one of the most recent trends leading to wrongful-conviction claims involves what’s known as “junk” forensic science, particularly in arson cases. The issue has surfaced in recent years and is becoming a more frequent claim in post-conviction cases, as well as at the trial level. These re-examinations come as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances.

In February 2009, the National Academy of Sciences issued a congressionally mandated report finding serious deficiencies in the nation’s forensic science system and called for major reforms. Part of that report says that in many fire cases, investigators routinely relied on indicators that were common at the time but have since become outdated and discredited by scientific research. Bottom line: Fires once thought to be arsons are now being proven to be the result of some other factor.

“That’s why to this day there are people in prison convicted on arsons that have been debunked before, after, or during their adjudication. But many are still in prison because of the scattershot nature of understanding the advance in that practice and applying it to these cases so long after the fact,” Saloom said.
 

Calls for reform

Indiana gets mixed reaction from people opining about how the state compares to others in adjudicating justice and analyzing injustice. Some say the system is ahead of the curve in various ways, while others point to it being behind nationally; still others say Indiana differs from nearby states by offering automatic post-conviction relief hearings and how appellate or postconviction courts have ways to review the trial court process. They also point to how the Indiana Supreme Court and General Assembly are exploring ways to make the system even stronger.

Saloom“My sense would be that we are definitely in the game, meaning we recognize the existence of invalid science used to convict and the appropriateness of providing common law and statutory remedies for newly discovered evidence,” said attorney and law professor Fran Watson, who leads the wrongful-conviction clinic at Indiana University School of Law - Indianapolis.

Watson said several state efforts put Indiana ahead of the curve, such as the automatic post-conviction relief hearings available to convicts, the post-conviction DNA testing they can utilize, and how Indiana has a statewide public defender agency to work on post-conviction cases. She’s also encouraged by efforts the courts are making to study the wrongfulconviction causes even more.

Whether that’s enough is debatable, according to some looking at Indiana from the outside.

“When it comes to preventing wrongful convictions, virtually no jurisdiction in Indiana and certainly not the state itself has significantly implemented reform on those leading causes,” Saloom said. “That puts them slightly behind most of the country.

“The good news is that (Indiana) is talking about it, there’s general preservation practices in place, and the court is taking some of these issues seriously,” he added. “While Indiana’s slightly behind, fortunately there are indications that the state does take these issues seriously and may very soon consider taking affirmative action on those reforms.”

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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