Posted on May 31, 2009 by Walter Reaves

Why we need investigative reporters

I recently posted about the decline in the number of investigative reporters, and the effect that would have on death penalty cases. Almost on cue, the Texas Observer came out with its second article looking at cases where convictions have been based on faulty arson evidence.

Granted, this is not a death penalty case. Also, in the interest of full disclosure, I admit this is a case I am working on. Despite that, this is an important issue, which has been getting an increased amount of attention over the last couple of years. Arson is one of those areas of "junk science", and may well be the worst. For years, so called experts testified about things that were at best guesses and speculation. They often testified about how the fire "talked to them", and how they could determine what happened from looking at the scene. The problem is that they know nothing about the scientific principles of fire; most were nothing more than fireman, whose sole training came from other firemen.

There are no telling how many people are in prison for something that was nothing more than an accident. Although there has been publicity, it is has not gained attraction like the DNA exonerations  have. Hence the need for investigative journalists. Unless they are there to get the story out, these people have no voice. Lawyers face an uphill battle in these cases; that battle is easier when public sentiment is our your side - which doesn't happen with the journalists. Anyone who doubts that need only look at the DNA cases, and the widespread acceptance among the general public that innocent people are convicted. That sentiment wasn't there 10 years ago - back then most people would say innocent people are seldom - if ever - convicted.

So to Dave Mann and all the other investigative journalists out there, keep up the good work.

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Posted on September 24, 2008 by Walter Reaves

Responsibility of Reporters for wrongful convictions

Grits had an interesting post on a seldom mentioned factor in causes of wrongful convictions. Innocent until Reported Guilty cited two articles that suggest improved reporting can be a protection against wrongful convictions. Steve Wienberg suggested that reporting on wrongful convictions is not a bleeding heart,liberal activity. Instead, it ensures that criminals will be punished for their crimes.As we have seen with many of the exonerations, when you convict an innocent person, the real criminal remains free, and in all likelihood will continue committing crimes. If you want to get tough on crime, make sure you prosecute the right person.

Rob Warden points out that most reporting is sensationalized, and is usually directed and orchestrated by the police and prosecutors. Until recently, claims of innocence were met with outright hostility; if you were lucky, they were only met with skepticism.

Weinberg also noted something I've always known; prosecutors tend to get a free pass. They are rarely questioned, and reporters believe whatever they tell them. In contrast, many reporters treat criminal defense lawyers exactly the opposite; they don't believe what they tell them. I think the problem is with the underlying assumption most reporters have, which is shared by the general public; they assume the person is guilty, or else they wouldn't have been charged.

As with anything, you cannot generalize, because there are many good reporters. Several of the exonerations are the result of work done by investigative reporters. Led by the pioneering program at Northwestern, more journalism schools are starting innocence programs; St. Thomas in Houston is one of those programs. Reporters are also responsible for getting out the information on exonerations, and keeping it before the public.

In the end, everyone bears responsibility when the criminal justice breaks down - even reporters.

 

 

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Posted on August 26, 2008 by Walter Reaves

Dealing with eyewitnesses

I just got back from a program on Actual Innocence at the Center For American and International Law in Plano. This was one of many seminars that have been conducted the last several years. (the impact of those seminars needs to be the subject of another post)

The focus was on DNA evidence, false confessions, and eyewitness issues. Education on eyewitness testimony is sorely needed, since mistaken identifications have been involved in a substantial majority of wrongful convictions (around 75%) Unfortunately, most jurors, and many lawyers, have mistaken beliefs about the reliability of eyewitness testimony.

There were two points I thought were significant. One concerns juror's beliefs about such testimony. Research has established that most people believe a person is more attentive when they have a gun pointed at them, or are otherwise under stress. They also believe witness' who are certain of their identification are more accurate. They also believe most people are able to accurately estimate time. Research has also established that the truth about those factors is exactly the opposite; you are less accurate when under stress, witness' who are certain of their identification are no more accurate than those who have doubts, and people are terrible at estimating time.

A more disturbing issue was a discussion of the inability of cross-examination to reveal mistaken identifications. Cross-examination is generally effective at uncovering witnesses who are lying, or trying to shade the truth. Eyewitnesses seldom intentionally lie; instead, they sincerely believe they are testifying truthfully. While you can point out the problems with eyewitness identifications, as discussed above, jurors beliefs about many of those problems are exactly the opposite, and as a result, they are unwilling to accept expert testimony. That leaves you with no effective way to uncover a mistaken identification.

Every lawyer knows how powerful eyewitness testimony is. If you don't have something really compelling to rebut it, it is impossible to overcome. There have been many great lawyers who have been unable to convince jurors that an eyewitness was mistaken.

So how do you handle the problem? One solution is to change people's beliefs about eyewitness identification. That requires aggressive education, and time; even with that, it is doubtful that will ever be successful. An easier fix is for Courts to become more aware of these issues, and scrutinize identifications more carefully. Prosecutors also need to be more skeptical, and not blindly accept all eyewitness identifications, even where they appear sincere. Instructions might also help, and are being given in some jurisdictions.

Defense lawyers have a difficult job in handling an eyewitness case. We can no  longer rely on cross-examination. We must use the research and experts that are available, and do the best we can to show jurors the view the witness had. Maybe if enough lawyers consistently take this approach, public awareness will start to slowly increase.

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