Bluhm Blog

Innocence in Juvenile Court?

In a decision that is otherwise not particularly noteworthy for wrongful conviction purposes, the First District appellate court recently pointed out that the Post-Conviction Hearing Act does not apply to juvenile proceedings.  In re Timothy P., No. 1-07-1518 (January 28, 2009).  Several previous appellate court cases have so held, although the Illinois Supreme Court has never spoken on the issue. 

The Post-Conviction Hearing Act is the primary procedural vehicle used for asserting innocence claims based on new evidence.  It is also the means of attacking constitutional violations that occurred at a defendant's trial.  What are we to take from the exclusion of minors' adjudicated delinquent in juvenile court from this Act?  Does this mean that no innocent minor is ever found guilty in juvenile court or that no minor has his constitutional rights violated?

We know this is not the case.  Rather, there is reason to believe that young people may be even more susceptible to wrongful convictions.  The growing list of exonerees includes many individuals who were accused when they were under 18.  While most were tried and convicted in adult court, this is because the vast majority of exonerations are in murder and rape cases, which are most often tried in adult court even when the accused is under 18.  We also know that the likelihood of a false confessions increases when the accused is a young person.  Certainly, there are young people who have falsely confessed to lesser crimes who have subsequently been convicted in juvenile court.

In fact, there is reason to believe that juvenile court might be particularly susceptible to wrongful convictions.  With no jury trial right, the same trial judge that may have previously presided over a case of the minor is the fact-finder in the new case.  This mihgt create an inherent bias in the judge's mind against the minor. Moreover, very few juvenile cases are appealed, so the appellate court is not given the opportunity to correct errors in judgment.  Further, the culture of juvenile court -- which at times discourages zealous advocacy in lieu of "the best interests of the minor" -- may contradict the presumption of innocence.  The reality is that the issue of wrongful convictions in juvenile court is largely unexplored.

Why should we care?  While it is true sentences in juvenile court may be less severe, there are serious consequences.  A minor may be imprisoned until he is 21.  A sentence of probation puts a minor in the system, and a subsequent, even non-criminal infranction could lead to prison time.  Even a small adjudication may affect a young person's future. For example, a misdemeanor sex offense requires a minor to register as a sex offender.  All felony offenses require the minor to submit his DNA into a state and national federal database.  And a juvenile adjudication may affect a minor's job or college prospects in the future, specifically a government job.  

The Illinois Supreme Court should address the issue of the applicability of the Post-Conviction Hearing Act to juvenile proceedings.  Alternatively, the general assembly should clarify the Act to make clear that it includes delinquency proceedings.  It does not make sense that Act does not apply to juvenile adjudications.

Latest Illinois exoneree: Alan Beaman

 

When false murder charges against a man who spent 13 years in prison are finally dropped, it is hard to know how to feel.  There is a measure of joy that the ordeal is over, but also great sadness at the years wasted and the damage inflicted -- and anger that it ever had to happen.  A week after Alan Beaman's exoneration on January 29, 2009, anger is uppermost in my mind as I reflect on the case.

First I must disclose that I am not an unbiased observer.  I have been representing Alan for six years.  (My colleague Jeff Urdangen has logged a dozen years in this fight for justice.)  During this time I have pored over all aspects of the case, and I have become very well acquainted with my impressive client Alan and his equally remarkable family.  My conclusion from this study is that Alan is absolutely innocent of the 1993 murder of his ex-girlfriend in Normal, Illinois, for the simple reason that he was 140 miles away in his Rockford home when it happened.

One of our mantras at the Center on Wrongful Convictions is that we cannot correct all miscarriages of justice one by one, so we must use individual cases to shed light on flaws in the criminal justice system that lead to erroneous convictions.  Each exoneration presents a "teachable moment."  What lessons can we learn from the Alan Beaman case?  Why is it that despite no evidence of guilt other than supposition and innuendo, and indeed clear evidence of his innocence, Alan was indicted and convicted?  Why did his conviction stand for 13 years until the Illinois Supreme Court ordered a new trial in May 2008, labeling the case aginst Alan "tenuous" and wholly circumstantial?

In a word, the answer is "Prosecutor."  The prosecutor holds a uniquely powerful position in the criminal justice process that rivals even that of the judge.  Alan Beaman's prosecutor, James Souk, involved himself early in the homicide investigation and eventually took it over.  When information surfaced during the investigation that supported Alan's alibi, the police were directed to try to refute it rather than shift their focus to more likely suspects.  (This phenomenon of tailoring an investigation around a premature conclusion is called "tunnel vision.")  Faced with a high profile murder of a college student in a college town, they indicted Alan rather than leave the crime unsolved.  At trial, the prosecutor hid evidence that supported Alan's innocence and misled the jury about the strength of the State's case.  Thus, the jury that decided Alan's guilt or innocence did not have access to all of the relevant evidence, including information about other potential suspects.  That angers me.

What is the appropriate response to a case like this?  We need to pay attention to the people in whom we invest the awesome powers of the prosecutor.  Candidates for prosecutor should be well screened, and when elected prosecutors (or their staff) abuse their power, they should be voted out of office.  Similarly, when a court of review finds that a prosecutor has committed an ethical or constitutional violation, there should be consequences and sanctions.  Finally, the public must express its outrage when prosecutors cross the line.  In the case of Alan Beaman, it may be that public support for his cause contributed to the dismissal of the wrongful charges against him.

To read more about Alan's case, try these links:

WMBD-TV story

Daily Pantagraph story

Center on Wrongful Convictions

(Photo by Steve Smedley/The Pantagraph)

Three New Must Read Tales of False Confessions

             

In 2008, three books were published detailing the cases of six men who were wrongfully convicted of brutal murders on the basis of their "confessions."  All are must-reads and should be added to the collections of anyone interested in the literature of wrongful convictions. 

Let's start with In Spite of the System, Gary Gauger's (with Julie Von Bergen) haunting first person account of his wrongful conviction in connection with the murder of his beloved parents Ruth and Morrie Gauger.  Short and sweet, this book clocks in at just under 200 pages, and can be read in a single sitting.  Beginning with Gary's account of the day he first noticed his parents were missing and the discovery of his parents' bodies, the book proceeds chronologically through his interrogation, arrest, trial, conviction, incarceration (including time on death row), and his exoneration.  As a client and longtime supporter of the Center on Wrongful Convictions, and a man whose story has been featured in the award-winning play "The Exonerated," I've heard Gary's story many times and it always remains fresh.  This book, based in part on letters Gary wrote from jail to his friend Nikki, gives the reader a true insight into Gary's character.  Filled with Gary's musings about farming (Gary was a budding organic farmer when arrested), Gary's dreams and thoughts about getting back to the farm helped sustain him through the chaos of prison life. The letters also contain very insightful comments about the need for better communication between trial lawyers and clients, the importance of family support for those wrongfully accused, and the almost pathological need for some in law enforcement to insist on a convicted person's guilt even in the face of powerful and overwhelming evidence of innocence.  It is an inspiring and uplifting tale, a tribute to Gary's indomitable spirit.  The book deserves a wider audience.  Self-published, it can be ordered at www.garygauger.com

A Criminal Injustice, Richard Firstman's and Jay Salpeter's book on the twenty year struggle to free Marty Tankleff, is a tour de force of a young man's (only a teenager when he was arrested for murdering his parents) and his family's struggle to regain Marty's freedom against a corrupt Suffolk County criminal justice system.  The book works on all levels.  Two thirds of the book is taken up with telling the back story of the case -- the tony suburb of Belle Terre, the lives of the victims, Marty's privileged, if not spoiled childhood, his relationships with his parents and extended family,  the business disputes between Marty's father and one of his partners that ultimately led to the murders, and the challenges faced by Marty's trial, appellate, and post-conviction lawyers.  Marty was privileged to have quality lawyers at every stage of the process, a reminder that confession evidence is so powerful, that even the best and brightest lawyers face and uphill battle.  The final third of the book reads like a detective novel because that is exactly what it is -- an account of Jay Salpeter's great gumshoe work to develop the evidence that eventually would prove that Marty was innocent and that a trio of other men, connected to Tankleff's father's business partner, were responsible for the killings. Salpeter and a team of lawyers worked for years for Tankleff on a pro bono basis, not only because they believed in his innocence, but because the power of Tankleff's personality, his own dedication to his case and his indomitable spirit, inspired them.  "Get busy living, or get busy dying" says Morgan Freeman in the Shawshank Redemption as he reflects on how he survived all those years in prison for a crime he committed as a youth.  That's precisely what Marty did --he refused to be defined by his surroundings and his circumstances -- he became his own strongest advocate. This attitude, captured by Firstman and Salpeter -- leaves me no doubt he will succeed in his new, post-prison life.

The Wrong Guys by Tom Wells and Richard Leo (one of the leading social scientific experts on police interrogations and false confessions), tells the tragic story of the murder of Michelle Moore-Bosko, a young Norfolk Virginia woman who was the wife of a Navy seaman.  The tragedy is compounded when Norfolk Police focus on another Navy man, Danial Williams, a neighbor, who supposedly showed an interest in Michelle, and browbeat this mentally vulnerable man into confessing to the murder and implicating several other Navy men.  As the Norfolk police pursue these men, they obtain four confessions from the men, and ultimately arrest eight men in connection with the crime.  It is a case of police tunnelvision gone haywire.  None of the confessions are corroborated by physical evidence -- the crime scene suggests a single perpetrator -- and DNA testing later not only excludes the men as the rapists but links an eighth man to the crime, a man named Omar Ballard, who has a history of assaulting women, who knew the victim, did not know the other men, and who later confessed to committing the crime alone.  When Ballard surfaced, police simply changed their story to accomodate Ballard, arguing, without any evidence, that Ballard met up with the sailors in the parking lot where they planned to rape Michelle.  Four men -- Williams, Eric Wilson, Joe Dick, and Derek Tice, were convicted of Ballard's crime (Ballard was also convicted).  There's no happy ending to this complex and gripping tale.    Despite a powerful push for clemency, see www.norfolkfour.org, Governor Tim Kaine, of Virginia, has yet to right this wrong.  Let's hope he reads this book which convincingly demonstrates why the confessions are false and why the men have been wrongfully convicted.

Human Lie Detector Machines?

As I watched Donovan McNabb and my beloved Eagles lose yet another NFL Championship game, I was deluged by promos for Fox's New Television Show "Lie To Me." http://www.fox.com/lietome/ The show features one of my favorite actors Tim Roth (of "Pulp Fiction" and "Reservoir Dogs" fame) as Dr. Cal Lightman, an expert at detecting whether a person is lying by analyzing their eye, facial, and other involuntary body movements. Lightman fancies himself as a human lie detector machine and the promos show scenes of him and the others he works with detecting lies during police interrogations. It's a fascinating premise for a television show and has great potential to be a hit but does it have the potential to mislead the public and increase the risk of wrongful convictions? Perhaps. There are a number of law enforcement officers who believe that they are human lie detector machines. (For a recent example, see Rick Firstman and Jay Salpeter's excellent new book about the Marty Tankleff case, A Criminal Injustice, where Detective James McCready, the interrogator who obtained Marty's confession to murdering his parents, claims that he is better at detecting lies than a lie detector) http://www.acriminalinjustice.com/. They make snap judgments about a suspect's innocence or guilt based on their analysis of a suspect's non-verbal responses to questions. These snap judgments often lead interrogators to launch into highly confrontational interrogations and to refuse to take no for an answer from a suspect. Such tactics can and do lead to false confessions. The problem is that these judgments are often wrong. Signs of nervousness are mistaken for signs of deception. And even when they are correct, the fact that a suspect is being deceptive about one thing does not mean he is guilty of committing the crime he is questioned about. Study after study of the lie-detecting ability of officers shows that while they are extremely confident in their ability to detect deception, especially if they have received training, they are not much better than the average person at detecting deception -- perhaps a little better than chance. Even if the best interrogators were able to detect deception 80% of the time, a 20% error rate would be intolerable and would lead to massive numbers of wrongful convictions. Interestingly, there is some common ground between some of these experts at human lie detection and advocates for the wrongfully convicted. Dr. Paul Ekman, whose work is the basis for "Lie to Me," appears to be a strong supporter of the need to require electronic recording of interrogations. In "Last Call," an October 14, 2008 Op-ed in the New York Times in which Op-ed editors asked a few writers and thinkers what questions they wanted Senators McCain and Obama to answer at their final debate, Dr. Ekman wrote: "Senator Obama helped pass a law in Illinois that requires the police to make audio or videotapes of interrogations of murder suspects. Would either of you require federal law-enforcement agencies to record all interrogations of witnesses as well as suspects in felony cases? And would you urge Congress to encourage recordings by state and local police departments?"

Grisham-Turow discuss death penalty

Ten years ago, a conference on wrongful convictions and the death penalty at Northwestern University School of Law launched the Center on Wrongful Convictions.  The conference brought together, on one stage, 29 former death row inmates who had been exonerated and freed from prison.  The event received national news coverage and many who attended or otherwise heard about it were shocked to learn of the high incidence of wrongful convictions in capital cases.

 

In October 2007, the Center sponsored another thought-provoking event concerning the death penalty, this one featuring two best-selling authors -- John Grisham and Scott Turow -- who discussed their personal journeys leading to death penalty opposition.  The discussion was moderated by former Chicago Tribune editorial board member Cornelia Grumman, who won a Pulitzer Prize for her editorials about the Illinois death penalty system.

 

Through the wonders of YouTube, folks who did not attend the 2007 forum can now view it on their computers, albeit in five separate parts:

 

Part 1: http://www.youtube.com/watch?v=KESB0Ef_F10

Part 2: http://www.youtube.com/watch?v=VpEIWSO2EPI

Part 3: http://www.youtube.com/watch?v=QBI6btoOGMU

Part 4: http://www.youtube.com/watch?v=234ZsNV7ZqI

Part 5: http://www.youtube.com/watch?v=vCMWDFcW4to

Beatrice Six Fallout: No More Plea Bargains, says Prosecutor

In the wake of the Beatrice Six case, the wrongful convictions of six men and women in Beatrice, Nebraska in a 1985 murder and rape case (five of the defendants plead guilty, four of whom had falsely confessed), Gage County Attorney Randall Ritnour has come up with a solution. Beginning February 1, Ritnour has vowed that his office will no longer offer or accept plea bargains. Ritnour said he will not reduce or dismiss felony charges once they have been filed against a defendant in return for a guilty plea. The only reason he would accept a guilty plea to lesser charges would be if the evidence implicating the person changed in a significant way. Ritnour is sounding all of the right notes, selling this reform by promising to more carefully screen cases to prevent overcharging, one of the key problems with unfair plea bargaining but I can't help but think that this reform sidesteps the major lessons of the Beatrice Six case. The defendants in Beatrice did not plead guilty because of overcharging, they pled guilty because police officers and psychologists acting as agents for the police coerced four defendants into confessing to crimes they did not commit. These officers clearly fed details of the murder and rape to the suspects to make their confessions appear credible and then induced the suspects to confess by threatening them with the death penalty if they did not. In other words, the interrogations themselves were a form of plea-bargaining. There are many problems with plea bargaining, including prosecutorial abuse of the process by overcharging and harsh mandatory sentencing schemes that give guilty and innocence defendants little choice but to plead in order to minimize their exposure, but here's hoping that the Beatrice Six case causes Ritnour (who was not the prosecutor at the time of the confessions) to insist that all interrogations of suspects be electronically recorded (a new Nebraska law will require this in serious cases), that he and his deputies and local police officers receive training in the subject matter of false confessions, that he require that confessions be corroborated before charging defendants or proceeding to trial, and that he have a heart to heart with the officers who are investigating the cases about their interrogation tactics. One more thing to consider -- the threat of the death penalty was a key reason why some of these defendants falsely confessed (just as it was in the earlier Murdock, Nebraska false confession of Matthew Livers). Perhaps, Ritnour should consider supporting the abolition of the death penalty in Nebraska, or, at the very least, a policy forbidding police officers in the state from mentioning it during interrogations.

Innocence trumped by technicality

Many folks react with frustration upon hearing that a criminal has been released on a “technicality,” such as an illegal search or lack of a speedy trial. I find it much more infuriating, however, when innocent convicts cannot have their new evidence heard due to tortured legal reasoning (an even more insidious form of “technicality”).

For instance, the Illinois Post-Conviction Hearing Act permits a prisoner to challenge his conviction based on new evidence of actual innocence. But exactly what is “new evidence”?

Let’s take an example. John Q. Unfortunate is charged with an armed robbery that was actually committed by Larry, Curly, and Moe. John knows who the actual robbers were, but not surprisingly, they refuse to testify on his behalf. Larry flees the jurisdiction, Curly lies and says he wasn’t involved, and Moe takes the Fifth. John is convicted based on a mistaken identification and is sentenced to a long prison term.

Years later, however, Larry, Curly, and Moe have a change of heart and sign sworn affidavits admitting their own participation and exonerating John. Is this new evidence? Logically, one would assume so because their accounts weren’t heard at the original trial.

But logic does not always drive the law. Read what one Illinois appellate court panel recently wrote on the subject:

“[E]vidence is not newly discovered when it presents facts already known to a defendant at or prior to trial, though the source of these facts may have been unknown, unavailable or uncooperative.”

In other words, because our John Q. Unfortunate knew before trial who the real offenders were, the recent confessions of Larry, Curly, and Moe cannot be offered as new evidence. On the other hand, had John not learned their identities until after trial, he could now present the affidavits as “newly discovered” evidence and possibly win his freedom. Talk about a “technicality”!

No conceivable societal interest is furthered by the refusal to consider new proof of innocence. The aforementioned appellate court ruling is either blatantly incorrect (my view), or else the Illinois Post-Conviction Hearing Act should be amended so that new evidence of innocence may be offered at any time (also my view). Let us hope that our legislators will be brave enough to take this step without fear of being labeled soft on crime. Remember, for every innocent person locked up for a crime she did not commit, there is at least one unpunished criminal still at large.

Be careful where you are wrongfully convicted

Approximately half of the states, and the federal government, have laws on the books providing for compensation for persons who have been wrongfully convicted and imprisoned.  What is a year of wrongful imprisonment worth?  Those statutes that attempt to put a dollar amount on stolen freedom value it quite differently.  For instance, Florida's new legislation allows for up to $2 million in compensation for wrongful incarceration (although the law is extremely restrictive as to who qualifies).  New Hampshire, on the other hand, caps the amount at $20,000, no matter how many years of imprisonment were involved.  Other jurisdictions come out somewhere in between.

How do we measure up in Illinois?  Our compensation law was recently improved in many respects, and the amounts were slightly increased, but our cap is just $199,150.  That means that if Anthony McKinney (a Center on Wrongful Convictions client who has been locked up for 30 years and who recently petitioned for release based on actual innocence) were exonerated today, he would receive $6,638.33 for each year he spent behind bars as an innocent man.  You be the judge of whether that is adequate or fair.

Update: Bond Denied: "People Have Sex in the Woods" is Prosecutor's Explanation for Semen Found on Victim's Clothing and Body

Yesterday, armed with DNA test results showing that semen had been found on Laura Hobbs's clothing and inside her body, Hobbs's defense attorney appeared in court to ask that Jerry Hobbs (pictured above) be released on bond.  Charged with capital murder in the deaths of his 8-year old daughter Laura and her 9 year old friend Krystal Tobias, Hobbs has been locked up for over three years.  Bond was denied.  The result is not surprising given that prosecutors opposed bond, citing the fact that Hobbs's confession -- which is looking less and less reliable in the face of DNA evidence -- will be admissible at his trial.  But what is surprising is the explanation being offered by Lake County prosecutor Mike Mermel for why semen was found on one of the victims.  The amount of sperm found in the semen sample is too small to have come from sexual contact (but what if the assailant pulled out or used a condom), said Mermel.  Mermel then stated that she probably picked up the semen in a casual way by touching something she came into contact with: "People have sex in the woods."  Unbelievable. 

Unfortunately for Hobbs, the profile of the man whose semen was left on his daughter was not matched to someone in the state and national DNA databases.  Judge Fred Foreman ordered the State to resubmit the profile in the CODIS database and set the case for a status in late December, after the Christmas Holidays.

 

DNA test results suggest that Jerry Hobbs's confession is false

Who could forget this picture? Could Jerry Hobbs be innocent of capital murder?

More than three years ago, on Mother's Day, residents of Zion, Illinois in Lake County were shocked to learn that two little girls, Krystal Tobias, age 9, and Laura Hobbs, age 8, had been brutally murdered in Beulah Park, part of forest preserve.  Suspicion immediately focused on Laura Hobbs' father, Jerry Hobbs (pictured above) because Hobbs had found the girls' bodies in a remote area.  When police learned that Hobbs had a criminal background and had just been paroled from prison in Texas, their suspicions only deepened. 

Hobbs was taken into police custody at 10:00a.m. on May 9, 2005 and interrogated for at least 16 hours until police claim he confessed at 4:45 a.m. on May 10th. Hobbs had not slept the night before (he was out searching for his daughter) and did not sleep once in custody.  While in custody, he was subject to the full battery of psychological techniques by teams of detectives in a tag team fashion.  Hobbs's interrogation was not recorded (a new law requiring recording had passed in 2003 but would not become effective for a month or so), although police did prepare a typed statement which Hobbs signed. 

I've always had my suspicions about Hobbs's confession.  It is, to say the least, bizarre. He claims that he went looking for his daughter because she had been grounded and had left the house to play against his wishes. (He had however, been with her and her siblings flying kites earlier that day so why would he care if she went out?) When he found her, he grabbed her arm and she pulled away.  At this point, Krystal pulled a little knife ("a potato knife") on him (really? sounds like police suggested this "minimization" theme of self-defense to him)  He then snapped, took the knife from her, and repeatedly beat and stabbed Krystal.  He then went over to Laura and stabbed her in the face and the eyes and dragged the two girls into a grassy meadow opening about thirty feet off of the trail.  The confession closes with an apology for what happened, claiming that "things got out of hand." (police are trained to write such expressions of remorse into their statements). 

Prosecutors quickly announced that they were seeking the death penalty against Hobbs.  Throughout the time he was in custody, Hobbs's face was always on the news and reporters were talking about him as a "person of interest" or "being questioned by police" and detailing his criminal history.  The confession is the only evidence the police have against Hobbs.  There were no eyewitnesses to the crime and no murder weapon was recovered.  Although Hobbs was wearing the same clothes when arrested as when he found the girls, no blood was found on him, his clothes or his shoes.  Although some of the details in the confession are consistent with the wounds on the girls' bodies, without a recording of the interrogation, there is simply no way to know whether these details were suggested to Hobbs by the police during the questioning, whether he knew the information because he saw the girls when he found the bodies, or whether he knew the details because he was there when they were killed.

New evidence, however, suggests that Hobbs's confession is false and that police tunnelvision may have let the true killer or killers go free.  DNA testing has found semen on swabs taken from Laura Hobbs's body cavities as well as fabric on her jean skirt. The semen is not from Hobbs.  Hobbs is moving for a new bond and to have the DNA loaded into state and national databases to see if a match can be made to another perpetrator.  When called by Chicago Tribune reporter Steve Mills, Lake County prosecutor Mike Mermel disputed the results, claiming that none of the semen was found in Laura's body, and downplayed their significance:  "None of the sperm was found in a significant place."

Mermel's response is stunning.  Whether the semen was in her body cavity or not, it was found on a dead eight year old girl's body and it was not from the man the police believe killed her.  Morever, Hobbs's confession does not mention any sexual contact with either of the girls -- he describes an impulsive stabbing not a planned rape. 

If the semen is matched to a specific perpetrator and that perpetrator cannot be linked to Hobbs, Lake County prosecutors should admit their error and release Hobbs, rather than try to come up with a new theory to explain away the semen.  But don't count on it.  In the case of Juan Rivera, which Lake County prosecutors are taking to trial in February, DNA test results on semen found inside an 11 year old victim caused prosecutors to suggest that the 11 year old must have had consensual sex with another man or boy within hours or days of her rape and murder by Juan Rivera.  Maybe they'll suggest that 8 year old Laura Hobbs had consensual sex on the day of her murder?  Or perhaps they'll argue that some unknown man came upon the dead girl's body, excited himself, and left his DNA on her? 

Stay tuned.