Wrongful conviction

California Shaken Baby Conviction Set Aside After 15 Years

Adding to the increasing numbers of exonerations in “shaken baby” cases, the New York Times reports Zavion Johnson may be released:

A California man is set to walk out of prison after 15 years, after a judge on Friday set aside his life sentence for shaking his 4-month-old daughter to death in 2001.

Amazingly,

At least 14 people nationwide had already been exonerated since 2011 in shaken baby cases, attorneys said, citing the National Registry of Exonerations. Northwestern University’s Medill Justice Project said in 2015 that there were more than 3,000 shaken baby syndrome cases nationwide, though attorneys said it’s not clear how many might have resulted in wrongful convictions.

The prosecution typically rely on medical testimony to prove these cases. They allege a certain triad of symptoms cannot occur accidentally or in absence of intentional shaken force. Defending their acquiescence to the judgment being set aside, Johnson’s prosecutors stated:

“Research and scientific studies conducted after the date of Zavion Johnson’s trial have altered the opinions of the prosecution experts,” Sacramento County Chief Deputy District Attorney Steve Grippi said in a statement.

There is a newly released documentary which highlights these prosecutions and the increasing doubt:









And lastly, here is another story of a lady adopting her nephew when she was convicted of murder:

Baumer was able to get her case retried and several expert witnesses were brought in to testify on her behalf. They filed for a 6500 motion which would introduce new evidence that Baumer’s nephew had not suffered from shaken baby syndrome, as originally believed, but rather Cerebral Sinovenous Thrombosis, a form of childhood stroke which had caused the brain hemorage. This process took three years to go through the court system and it wasn’t until Oct. 2010 that the jury finally came to a verdict. . .

Her case demonstrates what can go wrong in the American legal system when pride and ego get in the way of what is right and just. In her second trial, Baumer’s defense lawyer testified that he hadn’t been knowledgeable enough about the medical aspects of her case to provide her with an adequate defense, just one of the many factors that led to her wrongful conviction and imprisonment.

When it was all said and done, Baumer served almost five years of her 10-15 year sentence.

 

 

Lose your right to self-defense defense? ITS INCONCEIVABLE

A new twist has arisen on the Stand-Your-Ground immunity hearings debate. ISSUE: If a Defendant is actually granted an immunity hearing and then loses, has he forfeited his right to raise self-defense at trial. The answer is a resounding NO.
First, there are differing standards of proof and burdens of proof at the pre-trial immunity hearing and in the guilt phase at trial. As discussed on the blog posts about Alabama’s Stand-Your-Ground statute, at the immunity hearing, the standard of proof is preponderance of the evidence and the burden of proof is on the Defendant.
“We hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.  Peterson v. State, 983 So. 2d 27, 29 (Fla. Dist. Ct. App. 2008)
Whereas at trial, the state has the burden to prove beyond a reasonable doubt that the accused did not act in self defense:
“Once the issue of self-defense [merely] is raised, the State ‘must prove that the accused did not act in self-defense in the sense that the State must prove a prima facie case of unjustified homicide.’ Booker v. State, 645 So. 2d 355, 358 (Ala. Crim. App. 1994)
Second, each other appellate court within states adopting a Florida-copycat Stand-Your-Ground statute (like Alabama’s), have declared that there is no preclusive effect of an immunity hearing.  The trial court in Peterson granted him a pretrial hearing and then denied his Motion for insufficient evidence. Nevertheless, the Peterson appellate court, while sustaining the denial of immunity, specifically held “Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.” Peterson v. State, 983 So. 2d 27, 29 (Fla. Dist. Ct. App. 2008)
The Colorado court in  People v. Guenther, 740 P.2d 971, 981 (Colo. 1987) is more direct:

If, on the other hand, the court determines that the defendant has not met his burden of proof and denies the motion to dismiss the charges, there is nothing in [the Stand-Your-Ground statute to suggest that the defendant should somehow be precluded from raising the same statutory conditions for immunity as an affirmative defense to the charges at trial. Since the legislature clearly intended [the Stand-Your-Ground” to operate as a complete immunity to criminal charges when an occupant of a dwelling used physical force against an intruder under the conditions set forth in the statute, it cannot plausibly be argued that the legislature thereby intended to deprive an accused of the lesser benefit of an affirmative defense at trial when those same statutory conditions are established under appropriate standards of proof applicable to the trial of a criminal case. Thus, if the pretrial motion to dismiss on grounds of statutory immunity is denied, the defendant may nonetheless raise at trial, as an affirmative defense to criminal charges arising out of the defendant’s use of physical force against an intruder into his home. . .

Third, such a preclusion would deny him his constitutional rights to due process and a jury trial:

“Evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question for the jury.Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952)

When the accused have exercised their constitutional right to a trial by jury, their right to present a full and complete defense includes the right to have a jury consider and weigh all relevant and probative evidence in support of his defense. See United states v. Scheffer, 523 U.S.  303, 315 (1998); Crane v Kentucky, 476 U.S. 683, 690 (1986)  The Supreme Court of the United States has expressly recognized that, under the Due Process Clause of Fourteenth Amendment, and the Compulsory Process and Confrontation Clauses of the Sixth Amendment, a criminal defendant must be given “a meaningful opportunity to present a complete defense” -i.e., a right to make a full defense , and tell his or her story, by presenting relevant and probative evidence that supports his case. See, e.g. California v. Trombetta, 467 U.S. 479, 485 (1984).

Look at Crane v Kentucky, 476 U.S. 683 (1986). SCOTUS found unconstitutional a Kentucky rule which barred defendant from placing evidence of the facts and circumstances surrounding his confession before the jury, after the confession had been found by a judge at pre-trial to have been voluntary.  SCOTUS declared this violated his right to the fair opportunity to present a defense.

Similarly, just because a Defendant cannot prove self-defense pretrial by a preponderance of the evidence at the immunity hearing should not preclude his ability to require the state to prove lack of self-defense beyond a reasonable doubt

In the words of the Colorado Supreme Court: “it’s implausible”

Or better yet: in the words of the The Princess Bride, “ITS INCONCEIVABLE.”

“In hindsight, it might have been poor science. But it was the science of the day.”

Scary, long-read about “poor” science of arson forensic science: Playing with Fire: How Junk Science Sent Claude Garrett to Prison for Life.

The convictions of Babick, Hugney, Lee and Rosario all relied, at least in part, on the same kinds of burn patterns identified by Special Agent Cooper as telltale signs of arson in 1993. The fire investigative community has since acknowledged such flaws in its old methodology and, although it was slow to do so, has revised its literature and practices. Yet within the criminal justice system, even as the same junk science reappears over and over again in wrongful convictions, there has been no systemic reinvestigation of old arson cases.

TV crime dramas have unfortunately caused too much credence be given generally to forensic experts:

Recent experiments have yielded troubling results. In one 2005 test, ATF researchers asked 53 professional fire investigators to pinpoint the origin of a series of post-flashover fires. Only three were able to do so accurately — most drew false conclusions based on burn patterns. In 2011, a test conducted by  the California-based Arson Research Project asked professional fire investigators to assess 12 post-flashover burn patterns and distinguish between those that involved a liquid accelerant and those that did not. In reality, there is no way to tell the difference based on visual evidence alone. Yet out of 33 investigators, only three responded that such a conclusion could not be determined based on this evidence.

I once had an expert, on the witness stand, state that she had never made a mistake nor had she called her colleagues conclusions into doubt. State forensic scientists, although an independent agency from “law enforcement,” fall into a pro-prosecution bias.

In a subsequent report, the Arson Research Project warned that between their subjective methodology and close identification with law enforcement, fire investigators are “uniquely positioned” to be susceptible to the affects of cognitive bias — in which one’s perception is colored by preexisting knowledge or assumptions.

Scariest thought.

“In hindsight,” Fulton said, this “might have been poor science. But it was the science of the day.”

What forensic “most sophisticated science of today” will be viewed as poor science in 20 to 30 years? How many convictions will be obtained and prison sentences imposed with such “poor science.”

Chocolate chip cookies might get you arrested for drug possession

Radley Balko has a running list of all the materials that field tests have mistaken for drugs:

Sage, Chocolate chip cookies, Motor oil, Spearmint, Dr. Bronner’s Magic Soap, Tortilla dough, Deodorant, Billiards chalk, Patchouli, Flour, Eucalyptus, Breath mints, Loose-leaf tea, Jolly Ranchers

Mom reflects on the 1st year of her 8 year prison sentence

As reported in the Tulsa World News,

One year ago, on the week of Christmas, the first-time offender was checked into the Eddie Warrior women’s prison – the first holiday away from her four young children.

“I cried and cried just thinking of my kids opening presents on Christmas and I wasn’t there,” she said. “This year, it’s going to be any other day. I try not to keep up with days in here.”

At her mother’s home in Kingfisher, there is a somber tone among her children – ages 2, 4, 5 and 10. . .

“The first eight months were a blur,” Spottedcrow said. “I just cried a lot. It’s like I woke up a couple of months ago.”

Her daily schedule starts with breakfast at 5:30 a.m., followed by her job in the laundry. At 4:30 p.m., she is released and goes to the gym, followed by dinner and then church at 7 p.m.

“You have to try and keep your mind busy,” she said. “It’s easy to get sad, depressed and stuck in your own head in here.”

Prison is no picnic, even at a minimum-security campus like Eddie Warrior, she said.

“I took for granted using the bathroom by myself, what clothes you can wear and being able to pick up and go to the store when you want,” Spottedcrow said. “I hate not being able to use your own shampoo and you are limited to spending $10 a month (in the commissary).”

But it’s her kids taking up most of her thoughts.

“I was there every day taking of care of them before this,” she said. “I did everything from going to football games and PTA.”

While in prison, Spottedcrow has taken parenting classes, finished her GED and participates in a grief/loss recovery program, a behavior course, Alcoholics Anonymous/Narcotics Anonymous and a faith-based program. She is on a waiting list to begin higher education and Career Tech classes.

“The life I was living before, that’s over,” Spottedcrow said. “I’m not playing with my life anymore. I would never chance this again for my children.”

Spottedcrow never denied she smoked pot but said she was never a drug dealer or ever used or sold marijuana in front of her children.

“I got myself in this situation, and I’m not saying I shouldn’t be punished,” she said. “But I think this is a little excessive, especially looking at other cases from my county. And I’m sleeping next to people who have killed people, and they have less time than me. There are days I really can’t believe I’m in prison.”

In prison, she has had three misconducts: one for bartering when she gave an inmate cigarettes, one for having contraband when cookies were found in her locker without a receipt and another for aiding and abetting when she did not tell authorities a woman put bleach in the laundry area.

“I have a big heart,” she said. “When I see someone in need, like for food, I want to help if I can. But you can get a misconduct in here for the littlest things.”

In her classes, she has reflected on her life and changes that need to be made, including in her love life.

When she entered prison, she was still in a relationship with her common-law husband, who is the father of three of her children. Now, that relationship is essentially over, and he has not been supporting or caring for the children either, she said.

“The reality is – out of sight, out of mind,” she said. “We were kids having kids. I’m taking it day by day right now. But when I get out of here, I’m only worrying about me and my kids. They are my first concern.”

And there may be some concerns to work through with her children.

At the Kingfisher home, it’s been a tough existence and one that is relying on the generosity and help of others.

Spottedcrow’s oldest child has been acting out since her incarceration.

“He’s in trouble for stealing, and his mouth is real swift and sharp,” Starr said. “He blames me a lot for what happened to his mother. The girls want to cry a lot. They don’t like to listen to me, saying, ‘You’re not my mother.’ We struggle every day.”

Financially, the situation has been devastating at times.

Starr earns $8 an hour at a truck stop and doesn’t have a driver’s license because of a conviction. Spottedcrow’s oldest child pitches in with a few dollars from odd jobs he does at their church.

Starr’s utility and food costs have shot up since she took in the four children, and she owes $8,000 in court fines. As part of her sentence, she must take two drug tests a year, costing $150 each.

“But there are other little things, like I couldn’t buy their school pictures this year,” Starr said. “At school, kids can buy popcorn for $1 on Fridays, and sometimes mine are the only ones not getting popcorn.”