Monday, April 13, 2015

Necrophilia and Migrating Hairs

Medieval justice was scrupulous about holding proper trials and careful not to sentence without proof of guilt, but it achieved proof by confession rather than evidence, and confession was routinely obtained by torture.
Barbara W. Tuchman
A Distant Mirror: The Calamitous 14th Century
Tukhachevsky was tortured. . . .
Tuchachevsky's confession . . . is dappled with a brown spray that was found to be blood spattered by a body in motion.
Stalin had to convince the Politburo of the soldiers' guilt. . . .
It's incredible, admitted Stalin, “but it's a fact, they admit it.” They even signed on each page to avoid “falsification.”
Simon Sebag Montefiore
Stalin: The Court of the Red Tsar

In the April 13, 2015 issue of The New Yorker Ariel Levy in an article subtitled “What’s the right way to compensate someone for decades of lost freedom?”(1) writes about men and women who, in miscarriages of justice, were incarcerated for decades in prisons across the country.

Prison was “like a war zone,” according to John Restivo, whose miscarriage of justice is the central story of Levy's article. And prison was where he spent almost two decades—which should have been the prime years of his life, from his middle twenties to his middle forties—because of fabricated evidence, unfollowed leads, and, perhaps most crucially, the coerced confession of one of his two co-defendants, John Kogut. For a rape and murder none of them committed.

After having been told (falsely) that he had failed a polygraph test and having been grilled for eighteen hours, Kogut signed a confession, according to Levy, “handwritten by one of the detectives.” Kogut then went before a video camera and “confessed to the crime, hewing to the police's version of the events.”

It didn't matter that
(a) “Kogut recanted his confession immediately”;
(b) “Restivo's van [in which the crime allegedly took place] had been up on blocks at his mother's house on the night of the crime”;
(c) “the three men had never ridden in it together”
(d) the owner of a stolen Oldsmobile reported to the police after the car was found that “he had noticed a pair of unfamiliar striped jeans [like those the victim had been wearing] wadded under the passenger seat, and that a length of rope was missing from the vehicle.”

It didn't matter because, as Restivo was told by one of the police officers when first brought in for questioning (he was kept for twenty hours), “This is un-America: you have no rights here.”
[C]oercion, intimidation, deceit and trickery”--that was how H. Lee Sarokin, a retired federal judge, answered the title question “Why Do Innocent People Confess to Crimes They Did Not Commit?”(2) of a Huffington Post blog entry. And, of course, we might add, plain old torture (which is a bit more than coercion and intimidation). For too many police, prosecutors, and judges, from the scrupulous (according to the values of the time) medieval judges to the unscrupulous Soviets--or Chicago police(3)--the determination to convict a defendant by his own words has been single-minded pursuit. As Judge Sarokin put it:
There is no more powerful evidence in a criminal trial than a confession by the defendant himself.
But equally, again in the words of Judge Sarokin:
There is no greater injustice than when those confessions are obtained through threats and intimidation and result in the conviction of innocent persons.
Doing justice may require conceding wrongdoing rather than clinging to convictions . . . fraught with injustice” (again Sarokin). But there seems to be something in the make-up of prosecutors that they cannot admit to error.

Consider Cook County [Illinois] State’s Attorney Anita Alvarez in this excerpt from CBS Sixty Minutes:
Narration: In the case of Robert Taylor, Jonathan Barr and James Harden, DNA found inside the 14-year-old victim Catteresa Matthews was also retested, and a match was made to Willie Randolph, a 34-year-old convicted rapist, with 39 arrests. (Innocence Project Defense attorney) Peter Neufeld says prosecutors rejected the DNA evidence and instead came up with an unusual theory to explain it all away.Peter Neufeld: They suggest perhaps after the kids killed her this man wandered by and committed an act of necrophilia.Byron Pitts: Necrophilia. A lot of our viewers won’t know what that means.Peter Neufeld: Having sex with a dead person.Anita Alvarez: It’s possible. We have seen cases like that.Byron Pitts: Possible?Anita Alvarez: It is. We’ve seen it in other cases.Byron Pitts: It’s possible that this convicted rapist, wandered past an open field, and had sex with a 14-year-old girl who was dead?Anita Alvarez: Well, there’s all kinds of possibilities out there, and what I’m saying is that I don’t know what happened.(4)
We have not uncovered any evidence of any misconduct by the police officers or the State’s Attorneys that took the statements in these cases” is her declaration.
In the past year alone,” according to the New York Times,
nine people who had been sentenced to death were released — and in all but one case, prosecutors’ wrongdoing played a key role.(5)
Fred Klein, the assistant district attorney assigned to the Restivo case, told Ariel Levy that
prosecutors in many states are . . . bound by ethics statutes. But, he added, “practically speaking, most prosecutors don’t spend too much time worrying about that. They assume that the police did their job.”
And for him,
the idea that the police had manipulated the evidence “intentionally would just be beyond my comprehension.”
Klein also asserted that Joseph Volpe, the lead detective, who arrested Restivo, Kogut, and Dennis Halstead (the third defendant), was “a wonderful detective—one of the most tenacious, professional people I have ever worked with.” Volpe's report, claiming that two strands of hair from the victim's head had been found on the floor of Restivo's van, was the major element of the prosecution's case against the three men on trial.

At a retrial of John Kogut, the judge, after examining new forensic evidence, destroyed the prosecution's claim:
The judge concluded that [the hairs of the victim] must have come from elsewhere [other than the van], perhaps from the autopsy; apparently the police had commingled them—accidentally or deliberately—with hairs from the van.
And in 2014, a federal jury declared that Klein's “wonderful detective”
had engaged in official misconduct, including fabrication of hair evidence and withholding of exculpatory evidence in the case.(6)
Which should have been no surprise to Klein, because prior to Volpe's retirement from the police, Levy informs us, “the state had settled another case, in which he was accused of soliciting a false confession.”

But what really surprises me is that today this same Fred Klein is a professor at Hofstra Law School. I can only surmise that his speciality is the Ostrich Theory of Lawyering.

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