Wrongful Conviction

Leading Causes of Wrongful Convictions: 27% involve False Confessions.

This chart is incredibly revealing. The wrongfully convicted persons in these cases of exoneration were conclusively proven innocent, not just not guilty. In 72% of the cases, there was an eyewitnesses mis-identification.  Craziest: there was a false confession in 27%.

Alabama Expungement Statute is Almost Useless

When the law passed, the current Alabama expungement statute was received with great fanfare. However, the statute was too heavily amended on the floor of the Senate to be very effective. Having a broad expungement statute is so beneficial.

AL.com published article detailing the collateral consequences of arrest in Alabama generally but specifically if the person is wrongfully accused.

After felony charges against Steven McDowell were dropped and another person turned himself in for the crimes, the Army reservist from Huntsville still wasn’t free. McDowell was left with thousands of dollars of debt, struggled to find a job and lived without utilities for over two months. That’s because even though prosecutors now consider him innocent, being falsely accused comes with a cost.

One study found that “the record clearing intervention boosts participants’ employment rates and average real earnings.”

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential.

The article further details the costs and hurdles to clear his record in Alabama.

To be eligible for expungement, the charges have to end with a not guilty verdict, a dismissal or through completion of a diversion program. The defendant completes an application and the judge will set a hearing date. Prosecutors may contest the expungement, but the final decision lies with the judge.

Steven McDowell was lucky. He wasn’t charged with a violent crime. If so, he would not have been eligible for expungment regardless of the baseless of the charges. (UPDATE: A violent felony can be charge can only be dismissed if the person is actually found to be not-guilty; a dismissal will not suffice.) For instance, I represented a young man charged with a Class A felony, Discharging a Firearm into an Occupied Dwelling; the charges were dismissed at the preliminary hearing. Nevertheless, this conviction will remain on his “record” until the Legislature modifies the statute. Can people be charged with “violent” crimes as frivolously as drug charges? Absolutely.

If you have actually been convicted of a crime, you cannot have your record expunged under the statute.

The expungement process is not easy or inexpensive generally.

Prosecutors may contest the expungement, but the final decision lies with the judge. To apply, the defendant must pay the state of Alabama $300 for each charge that is to be expunged and pay for copies of a $25 certified criminal history (one for each charge) and fingerprint cards from the Alabama Law Enforcement Agency. McDowell paid about $25 for his fingerprint cards, he said.

According to Al.com, “here’s the way it’s supposed to work, according to the language in the bill:”

Who’s eligible? A person who has been charged with a misdemeanor criminal offense, a traffic violation, or a municipal ordinance violation – if the charge was dismissed with prejudice, no-billed by a grand jury, the person was found not guilty of the charge, or the charge was dismissed without prejudice more than two years ago and has not been refiled.

What about felony charges? The act allows for expunging non-violent felony charges, in the event of a no-bill by a grand jury, a dismissal of the charge with prejudice, a finding of not guilty, and one year after completion of a diversion program like drug treatment, mental health treatment or veterans court. A person is also eligible, if the charge was dismissed without prejudice more than five years ago, has not been refiled, and the person has not been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous five years.

What felony charges are not eligible to be expunged? Violent felonies listed in the Alabama code are not eligible, including: capital murder, murder, manslaughter, assault, kidnapping, rape, sodomy, robbery, burglary, arson, stalking, sexual abuse and domestic violence 1 and 2.

How will it work? A petition has to be filed with the circuit court in the location the charge was filed. The petition has to include: – a sworn statement that the person meets the expungement requirements; – a case action summary or certified copy of arrest and disposition; – a certified copy of the arrest record from the Alabama Criminal Justice Information Center; – description of the charges to be considered for removal and description of the agencies involved in the arrest and any incarceration; – the filing fee is $300 plus any court costs; – all court fees, restitutions, fines and fees have been paid.

Who has to be notified? A copy of the petition submitted to the circuit court also has to be provided to the district attorney’s office, the law enforcement agency and the clerk of court. The DA’s office is expected to review the petition and make an effort to notify any victims in the case.

Can the request be opposed? The DA’s office and the victims have 45 days to file a petition opposing the expungement. If the objection is filed, the court is to set a hearing date at least 14 days after the filing.

What if nobody objects? The court can review the petition and rule without a hearing.

If the court approves the request, what happens to the records? The court is to order the expungement of all records in the custody of the court and any records held by any other agency or official, including law enforcement records, except privileged investigation reports by the Alabama Board of Pardons and Paroles and files of the district attorney. The related agencies are then to certify to the court within six months that the expungement has been completed.

What if somebody asks about the case after it’s been expunged? The proceedings regarding the charge shall be deemed never to have occurred,” the act says. The court and other agencies are supposed to reply to any inquiry that “no record exists on the matter,” and the person shall not have to disclose the related facts on job or credit applications and other applications.

So it becomes totally secret? The law says a petitioner has the duty to disclose the “fact of the record” to any government, regulatory or licensing agency, any utility or its affiliates or any bank or financial institution.

Will the record exist anywhere? The related agencies have to send the records to the Alabama Criminal Justice Information Center which will archive them in a protected file. The records cannot be used for a non-justice purpose and can only be made available when a criminal justice agency provides notice of an investigation of the individual.

What records are expunged? Arrest records, booking or arrest photos, index references for public records searches and other documents or electronic files concerning the arrest or charge.

Battered Woman Syndrome Evidence in Alabama Self-Defense Cases

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 or her case. See, e.g. California v. Trombetta, 467 U.S. 479, 485 (1984). See also Crane, 476 U,S, at 689

Rule 405(b) of Alabama Rules of Evidence states:  “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.” The Alabama Court of Criminal Appeals has previously ruled that Rule 405(b) “authorizes the admission of testimony concerning specific instances of a victim’s violent conduct in a case where the victim’s violent character is essential to a defendant’s claim of self-defense.” Clancy v. State, 886 So. 2d 166, 169 (Ala. Crim. App. 2003)

Prior specific acts actually are proper evidence of the reasonableness of a defendant’s actions and his “state-of-mind” in  a self-defense case. Williams v. State, 938 So. 2d 440, 448 (Ala. Crim. App. 2005)

The Alabama Court of Criminal Appeals has even found that evidence of a general reputation for violence, blood-thirstiness or dangerousness, much less specific acts toward the accused, is admissible as having probative value on elements of the doctrine of self- defense. “Evidence of this type is also admissible for the purpose of showing a reasonable apprehension of immediately pending danger which would justify the accused in striking more quickly, under the circumstances prevailing at the time of the homicide.” Brooks v. State, 263 Ala. 386, 389, 82 So. 2d 553, 555 (1955) Alabama law even recognizes the right of one who has received mere threats to “act more promptly and on slighter overt act or demonstration than it would in the absence of such proof”. Raines v. State, 455 So. 2d 967, 971 (Ala. Crim. App. 1984)

Also, evidence of “physical and emotional injuries received by [a Defendant] in the prior difficulties” was relevant and probative on the issue of state-of-mind “by reason of continuing pain from injuries suffered by him.” Dickerson v. State, 360 So. 2d 1045, 1053 (Ala. Crim. App. 1978)

However, Alabama also fully allows expert testimony of battered syndrome.

 “[E]xpert testimony on Battered Woman Syndrone can be admitted to assist the jury in understanding the syndrome, and also to help the jury determine whether the defendant had an honest belief that she was in imminent danger, as that determination related to a claim of self-defense.

Harrington v. State, 858 So. 2d 278, 294 (Ala. Crim. App. 2002) Alabama courts have actually elaborated extensively on the policy behind these principles of admissibility of testimony, both lay and expert, on the effects of being a battered woman.  This Court in Bonner quoted, at length, State v. Kelly, a New Jersey case:

What the expert could state was that defendant had the battered-woman’s syndrome, and could explain that syndrome in detail, relating its characteristics to defendant, but only to enable the jury better to determine the honesty and reasonableness of defendant’s belief. Depending on its content, the expert’s testimony might also enable the jury to find that the battered wife, because of the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to the day he died, is particularly able to predict accurately the likely extent of violence in any attack on her. That conclusion could significantly affect the jury’s evaluation of the reasonableness of defendant’s fear for her life.

Accordingly, lay and expert testimony regarding the history of abuse and the resulting behavioral responses are admissible and relevant in self-defense cases to provide the jury with a proper understanding, unencumbered by prevailing myths concerning battered women, of the circumstances surrounding the reasonableness of the defendant’s actions. Alabama case law makes such evidence admissible and relevant to the state-of-mind necessary for the defense of self-defense.

Many states have actually enacted statutes to specifically allow such evidence. This issue is so important that the Alabama Court of Criminal Appeals made an unusual request of the Legislature.

“In light of these and similar tragic events, a reevaluation of Alabama’s body of law surrounding self-defense and battered spouse syndrome is necessary. It has become increasingly clear that leaving an abusive relationship may not, in fact, mean that the victim’s safety is no longer threatened. As our own cases show, domestic violence often escalates to deadly levels. . .The difficult situation presented to this Court in [battered woman cases] can be avoided in future cases if the Alabama Legislature seizes the opportunity to address this important issue, as the legislatures in other jurisdictions have done. We encourage the Legislature to address the existing body of law on self-defense as it relates to battered spouse syndrome.

Harrington v. State, 858 So. 2d 278, 299 (Ala. Crim. App. 2002)

So far, the Legislature has not taken up this call.

False Confession: Corrupting the Investigation

As reported by the New York Times:

False criminal confessions set in motion other errors by police, informants and witnesses, suggests a review of 240 overturned convictions.

In experiments, confessions have been shown to shape the interpretation of other evidence by polygraph examiners, fingerprint experts and witnesses, but real-world proof of the phenomenon has been hard to come by. To remedy that, researchers looked at cases overturned with the help of the non-profit group the Innocence Project, on the basis of DNA evidence, from 1992 through July 2009.

Fifty-nine of the cases involved false confessions — mostly by the suspect, sometimes by a supposed accomplice. The confession cases were significantly more likely than the others to have also involved other mistakes, such as incorrect findings by forensic labs (63% vs. 48%), or an informant whose tale did not reflect the truth (19% vs. 11%).

The researchers verified that most confessions happened very early in investigations, making it plausible that they clouded what happened later. Errant eyewitnesses were actually the most common glitch in the cases studied, appearing in three-quarters. But cases that involved eyewitness errors (and not confessions) were less likely to have multiple errors than cases that involved confessions (and not witness errors); in other words, eyewitness errors weren’t as contaminating as false confessions.

Life sentence set-aside after wrongful conviction for robbery

In another case of wrongful conviction:

Sentenced to life in prison in November for armed robbery, LaDondrell Montgomery insisted he was not the shadowy figure on surveillance video. He swore the eyewitness identifying him were flat wrong.

If only the 36-year-old habitual offender had an alibi. If only he could remember exactly where he was that day of the robbery.

A week after jurors sentenced Montgomery, his attorney was researching the felon’s lengthy rap sheet.

In that file was a report that had details about a 2009 arrest and an iron-clad alibi: He was in jail.

Released from custody about nine hours after the December 13, 2009 crime, Montgomery was actually innocent.