Marissa Boyers Bluestine, Legal Director. A Day in the Life of a PD Lightstream Communications CLE

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1 Marissa Boyers Bluestine, Legal Director A Day in the Life of a PD Lightstream Communications CLE

2 Exonerations Nationwide 311 inmates have been exonerated through DNA. 5 of those have been exonerated posthumously. Approximately 1,262 exonerations (DNA and non-dna) since convictions dismissed in 13 group exonerations following the discovery of major police scandals. 9,969 people in the United States may be wrongfully convicted of serious crimes each year (Convicted But Innocent: Wrongful Conviction and Public Policy (Sage Publications, 1996))

3 Causes of Wrongful Conviction Eyew itness Misidentification (75%) Lim ited, Unreliable, Fraudulent Science (65%) False Confessions (25%) Inform ants/snitches (15%)

4 Reasons for Wrongful Convictions (in first 74 DNA exonerations)* No. % Mistaken ID Serology Inclusion Police Misconduct Prosecutorial Misconduct Microscopic Hair Comparison Defective or Fraudulent Science

5 Reasons for Wrongful Convictions (in first 74 DNA exonerations)* Bad Lawyering False Confessions False Witness Testimony Informants/Snitches Other Forensic Inclusions DNA Inclusions

6 Reasons for Wrongful Convictions 80% of sexual assaults involve erroneous IDs. 51% of all cases involve perjury or false informant information ( jailhouse snitches ). 42% involve official misconduct (police, prosecutors, and judges) 25% of homicides involve false confessions. 24% of all exonerations involve faulty or falsified forensic evidence

7 Have Innocent People Been Executed Yes

8 Eyewitness Mis- Identifications Eyewitness identification is the #1 cause of wrongful convictions in DNA cases and has been involved in 75% of DNA exonerations.

10 Memory Can be Changed

11 Eyewitness Identification: What Can Go Wrong? Memory for faces is more unreliable than most people think and is extremely malleable. Traditional lineup methods used by police cause people to use relative judgment and allow for cues that bolster witness confidence. Human memory, once affected, cannot be reinstated. Even honest mistakes cause permanent damage to memory.

12 Distance 134 Feet

13 Distance 100 Feet

14 Distance 5 Feet

15 Weapon Focus

16 Stress

17 Cross-Racial IDs

18 Forgetting Curve Common belief:

19 Forgetting Curve Actual:

20 Photo commitment

21 State v. John White actual lineup

23 Relative Judgment

24 3% 3% 54% 13% 3% 3% All witnesses are warned that the actual perp might not be in the lineup No choice: 21%

25 11% 3% 3% 6% 12% 54% 13% 3% 3% 38% 7% 5% No choice: 21% + = 75% 32%

26 Confirming Feedback Certainty View Face Ease Basis Source: Wells & Bradfield, Good, you identified the suspect : Feedback to eyewitnesses distorts their reports of the witnessed experience, 83 J. APPLIED PSYCH. 360 (1998) Control Confirm

27 Witness Instructions Who was the highest scorer in the NBA in the 1980 s? a) Larry Bird b) Magic Johnson c) Michael Jordan d) Kareem Abdul-Jabbar e) None of the Above Answer: Alex English

28 Composite Sketches

29 Composite Sketches MISCONCEPTION: That resemblance to a composite sketch necessarily indicates greater reliability of an identification In fact, can alter memories and lead witnesses to pick out suspects who resemble the sketch rather than the actual perpetrator Composites are default descriptions See Wells, G.L. & Hasel, L.E., Facial Composite Production by Eyewitnesses, 16 CURRENT DIRECTIONS IN PSYCHOL. SCI. 6 (2007)

32 We Know How to Curb Mis-IDs Law enforcement all over the country are adopting known best practices based on scientific knowledge.

33 What are law enforcement groups doing? Procedures run by blind administrator Witnesses are warned before viewing an array: Perpetrator may or may not be present Don t have to make an identification Post-identification confidence statements Show arrays sequentially, not

34 The Post-Trial Process Raising Innocence Claims After Conviction

35 Criminal Procedure 101 Inmate is convicted at trial. Inmate pursues a direct appeal to the Superior Court of Pennsylvania, challenging legal errors that occurred during trial. An appellate attorney (paid or appointed) files a legal brief outlining the issues raised. The Commonwealth files an answer. The inmate files a reply brief. The Superior Court reaches a decision.

36 Crim Pro (cont d) A direct appeal generally raises procedural or constitutional errors (i.e., sentencing error, jury error, legal innocence issues, etc.). Is based only on the trial record. May not include claims of factual innocence or ineffective assistance of counsel.

38 Motion for a New Trial A primary vehicle in certain states for bringing forward new evidence of innocence. The standard usually requires defendants to prove that the new evidence probably would result in a different verdict or that no reasonable juror would vote to convicted in light of the new evidence. Subject to very stringent deadlines in Pennsylvania a claim under PCRA must be brought within a year that the conviction became final, or within 60 days of learning about the new evidence.

39 DNA Evidence Proof of Innocence Non-DNA Evidence Finding the real perpetrator. Evidence that it simply wasn t the defendant, even if we don t know who it is. Recanting witnesses. Science other than DNA (such as arson or crime scene experts).

40 PCRA or Habeas PIP files to request reversal of conviction based on new evidence. Can lead to evidentiary hearing. At hearing, petitioner (PIP) presents new evidence of innocence. If judge reverses conviction, the D.A. may retry the inmate.

41 The Difficulty of Raising Innocence Claims on Appeal In Pennsylvania, inmates have a right to counsel on a first PCRA, but not for subsequent petitions. The presumption of innocence ends when a defendant is convicted, so raising innocence on appeal or during the post-conviction process is quite difficult.

42 Post-Conviction DNA Testing Pennsylvania has a post-conviction access to DNA testing, BUT. Defendants must make a strong showing that the evidence would exonerate them. If pled guilty, cannot get testing If the conviction was after 1995, the defendant has to show that he asked for the test and his counsel was denied funds to get it.

43 Post-Conviction Law in Pennsylvania All post-conviction claims of evidence in Pennsylvania must be brought under the Post-Conviction Relief Act ( PCRA ) Inmates have a right to counsel on a first PCRA, but not for subsequent petitions. All PRCRA petitions must be filed within one year the conviction became final The one-year limit is jurisdictional and not subject to equitable tolling

44 Innocence in Pennsylvania Case studies of the wrongly convicted.

45 Thomas Doswell Police showed the white victim a photo array Only Mr. Doswell s had an R on it Testing on rape kit done on blood type only Released after 19 years when DNA test proved he was not involved in the crime

Bruce Godschalk Convicted of 2 counts of rape based on eyewitness testimony and his own confession One witness id ed Godschalk in a photo array, another did a composite

46 Bruce Godschalk Convicted of 2 counts of rape based on eyewitness testimony and his own confession One witness id ed Godschalk in a photo array, another did a composite sketch Serology could not exclude Godschalk as contributor to semen at scenes Jailhouse snitch claimed Godschalk confessed 15 years in prison, fight for DNA took 7 years

47 Vincent Moto Victim spotted Mr. Soto five months after her rape and identified him as the man who attacked her Parents and Mr. Moto testified he was at home the night of the attack DNA testing excluded Mr. Moto as the rapist in 1998 after he served 8.5 years in prison

Drew Whitley Convicted of 2 nd degree murder Hair found in a stocking cap at crime scene could be Mr. Whitley s but that saliva from a mask was not Prosecutor argued that the hairs matched Mr.

48 Drew Whitley Convicted of 2 nd degree murder Hair found in a stocking cap at crime scene could be Mr. Whitley s but that saliva from a mask was not Prosecutor argued that the hairs matched Mr. Whitley Serology on shoes showed type A blood with both the victim and Mr. Whitley had DNA testing on the hairs excluded Mr. Whitley in February, 2006, and he was released in May,2006 after serving 16.5 years in prison

49 Barry Laughman Convicted of rape and murder of a distant relative Confessed to the crime, although he had an IQ of 70 Multiple discrepancies between his statement and evidence Served 16 years in prison before DNA results exonerated him Took DA over a year to withdraw charges

50 Eugene Gilyard Eyewitness identified Eugene 2 years after murder Rolex confessed in 2012 Released Nov. 15, 2013, after 15 years

51 The Pennsylvania Innocence Project Who we are, what we do.

52 The Pennsylvania Innocence Project s mission is to exonerate those who have been convicted of crimes they did not commit and to prevent the innocent from being

53 How we work Volunteer lawyers, law students, journalists and others work as teams to investigate claims of factual innocence. Teams work to gather information needed to assess a claim. If the documentation supports a plausible claim of innocence, an investigative team takes over to work the case for litigation.

54 How does PIP choose cases? Certain factors we look for: Credible alibi. Evidence does not support conviction (e.g., witness misidentification, no physical evidence linking inmate to crime, possible third party culpability). New evidence not known at trial. Gut feeling.

55 And, yes, DNA cases Things to look out for in potential DNA cases: Untested DNA evidence. Evidence tested using older testing methods (RFLP vs. STR). Newer, more accurate testing available now. Mitochondrial DNA testing - used mostly with hairs.

56 Help Prevent Wrongful Convictions Contact the Pennsylvania Innocence Project (215) Join the Act4Innocents in Pennsylvania Campaign

57 Seeking Truth. Giving Hope. Freeing the Innocent

Eyewitness identification is evidence received from a witness who has actually seen an event and can so testify in court.

Eyewitness identification is evidence received from a witness who has actually seen an event and can so testify in court. Eyewitness identifications are among the most common forms of evidence presented