innocence blog

A Web log for the Innocence Institute of Point Park University

Wednesday, August 30, 2006

Asking a Rottweiler to Purr

This op-ed piece ran in the Hosuton Chronicle on August 30, 2006.
Asking a Rottweiler to purr

By RICK CASEY
Copyright 2006 Houston Chronicle

A statement by District Attorney Chuck Rosenthal in yesterday's front-page story about his decision not to prosecute Brandy Del Briggs a second time raises a $125,000 question.

Briggs had spent five years in prison before the Texas Court of Criminal Appeals last year threw out her conviction in the 1999 death of her 2-month-old baby.

The DA's office took eight months to reinvestigate the case before deciding not to prosecute her again.

"It's not a situation where I can say she's completely innocent," Rosenthal said. "It's a situation where we can't prove our case."

His second sentence is probably an understatement.

Briggs pleaded guilty in 2000 to a reduced charge of second-degree injury to a child. The plea came under pressure, she says, from her attorney.

He had told her he needed more money — money she didn't have — to hire experts to fight the prosecution's case. She says he told her she would receive probation under the plea bargain (something he denies) and avoid a possible life sentence if she lost her case to a jury.
She was sentenced to 17 years.

Autopsy finding reversedBriggs had told authorities that she found her baby lifeless in his bed and, in a panic, shook him to try to wake him. He died in a hospital a week later.

But an autopsy by then-Assistant Medical Examiner Patricia Moore found evidence of head trauma and ruled the baby's death a homicide.

A later investigation by the Houston Chronicle found Moore had been criticized by her boss for being prosecution-oriented and who reminded her "that our office is neutral and that we are not doing cases for the DA's office," according to an internal memo.

In 2000, after Briggs found a lawyer who would fight for her, Medical Examiner Dr. Luis Sanchez reviewed Moore's work on the Briggs case and found the evidence did not support her conclusion. He changed the cause of death to "undetermined."

A similar change of a Moore ruling was made in at least one other baby death.

No evidence of traumaOther problematic issues turned up. The baby had a urinary tract birth defect that may have caused sepsis, a severe infection of the blood.
He had been in an auto accident.

When he was taken to a hospital, a breathing tube was accidentally guided into his stomach rather than his lungs. The mistake wasn't found for 30 minutes, resulting in severe brain damage from lack of oxygen.

Finally, a pediatric pathologist hired by DA Rosenthal's office reviewed the autopsy report and brain scans and found no evidence of head trauma or of "shaken baby syndrome."

No wonder Rosenthal decided not to go to a jury with this case. Twelve people, honest and true, would have blasted prosecutors for wasting their time.

Under our legal standards, Briggs is not guilty.

Texas, like many states, has a law providing compensation to innocent people who have been wrongly imprisoned. It provides $25,000 per year of incarceration.

But unlike any other state, our law provides not only that the courts overturn a wrongful conviction but that the district attorney whose office won the conviction certify in writing that the person is innocent.

The problem is that the average district attorney doesn't have a gene that looks for innocence. It's not his vocation. It's not his personality. He is geared only to see if there's enough evidence to convict.

Asking a district attorney to declare a person innocent is like asking a Rottweiler to purr.

It's an even tougher hurdle to ask him to admit he sent an innocent person to prison. That's true even in a case such as this one, in which the wrongful conviction appears to be because of a poor defense, not prosecutorial overaggressiveness.

State Sen. Rodney Ellis, who has spearheaded compensation legislation, says the provision was apparently inserted into a lengthy bill in 2003 by someone in Comptroller Carole Keeton Strayhorn's office, and nobody noticed.

"I don't think Strayhorn had anything to do with it," he said. "I think a staffer wanted to protect her from the Willie Horton syndrome."

He referred to an infamous 1988 political ad blaming presidential candidate Michael Dukakis for a rape committed by a convicted murderer who had been furloughed from prison.

Ellis nearly removed the provision requiring the DA's certification last year, but the bill was blocked at the last minute by a fellow senator who was angry with him.

"I'm optimistic we can pass it next year," he said. "The district attorneys didn't testify against it."

Why should they? They didn't ask to be part of the innocence process, and they don't deserve to be asked to go against their nature.

You can write to Rick Casey at P.O. Box 4260, Houston, TX 77210, or e-mail him at rick.casey@chron.com.

Tuesday, August 29, 2006

Junk Science Fuels Lawsuit Abuse

This op-ed piece ran in the Tallahassee Democrat on August 29, 2006.

Junk science is distorting justice in Florida

By Slade O'Brien
MY VIEW

As the lazy days of summer begin and the deluge of vacationers hits Florida's pristine beaches, sparkling waters and world-class theme parks, we should all take a moment and ask, “Who else are we inviting in?”

Each year, Florida's courts play host to personal injury lawyers from far and wide, stirring together a toxic brew of lawsuits, litigants and so-called expert witnesses who are ready to provide flavor in the form of junk science.


So what is this junk science? Junk science is questionable, unfounded or misleading information that is put forth as medical or scientific fact. It's not terribly difficult to identify junk science, because it is driven by speculative theories outside of the thoroughly peer-reviewed mainstream of science.

Junk science is typically medical or a scientific claims made by so-called "expert witnesses," claims that are not supported by fact but theory, and are not validated by others within the scientific and medical community. In Florida, these "experts" are free to believe in their theories and testify in court as if the theory is fact - even in the face of compelling evidence to the contrary.

The proliferation of these so-called "experts" for hire, promulgating lawsuits based on junk science, is a very real concern and one of the prime culprits of the lawsuit abuse epidemic in our state. In Florida, expert witnesses are given extreme latitude to offer the court their opinions and, unlike a normal witness, their testimony can be based on hearsay or what would normally be regarded as inadmissible evidence solely for the purpose of supporting their opinions.

In fact, the issue of highly “misleading”- even fraudulent-expert testimony made national headlines when Dr. Ray Harron from West Virginia and other medical experts were found to have made fraudulent silica diagnoses in a Texas courtroom. These diagnoses were characterized by the judge in the case as "driven by neither health nor justice - they were manufactured for money."

A congressional panel is investigating Harron, and a medical screening company with which Harron worked is the subject of a probe by federal prosecutors in New York.

While this happened in a Texas case, it could just have easily have happened in Florida.

Aggressive personal injury lawyers know that jurors are made to believe, because a witness is labeled an "expert" and is testifying in court, that the expert is credible and therefore their testimony should be strongly considered. Knowing this flaw in our system, personal injury lawyers pick Florida again and again as one of their lawsuit venues of choice and continue to view our state as fertile ground to try out the best science money can buy.

With no ethical standards to protect our legal system from these bad apples, Florida will continue to be a haven for on-call experts and purveyors of junk science.

The state needs to stop casting a blind eye to the problem and take action.

Florida should require our courts to follow the highest standards when admitting expert testimony on medical, scientific and technical matters. Common sense tells us that only those who are actually qualified in a specific field should be able to testify as experts on issues concerning that field of science, and should be compensated only for their time - not their ability to help secure sizable judgments.

Put plainly, a reasonable person would not go to an ophthalmologist, demand a diagnosis of foot fungus, and then reward that diagnosis with an exorbitant fee for telling others it is true. It just wouldn't make sense and wouldn't be ethical, especially if we were talking about doing this in a court of law.

Unfortunately, this happens more often then we would like to believe and exemplifies why Florida's courts must adopt a straightforward, common-sense approach to the use of expert witness testimony. By doing so, our courts can ensure that the testimony given is reliable, trustworthy and based on the highest of ethical standards. This common-sense approach would also go a long way in sending a message to those who file lawsuits based on junk science that we are watching and ready to take action against abusive and unethical behavior in our courts.

Floridians deserve better. We deserve a court system where those who truly have been injured or harmed get their day in court. But almost more importantly, we deserve a court system based on truth, fairness and plain old common sense. Only by eliminating the frivolous, extortive and junk lawsuits that crowd our legal system will good honest people who truly need restitution receive it in a timely manner.

Monday, August 28, 2006

Why False Confessions Occur

This article ran in the Pittsburgh Tribune Review on Sunday, August 27, 2006.

Only sometimes are confessors big liars

By David ContiTRIBUNE-REVIEW
Sunday, August 27, 2006

The question crops up during just about any discussion of John Mark Karr: If he didn't kill JonBenet Ramsey, why would he confess?

"There's any number of reasons for a false confession," said Saul Kassin, a professor of psychology at Williams College in Massachusetts and a leading national researcher on the topic. "Sometimes, they have a pathological need for attention. More often than not, the false confession comes from the pressure of a police interrogation."

Within hours of Karr's surfacing in Thailand last week, many criminal justice experts and pundits -- including former Allegheny County Coroner Dr. Cyril Wecht -- began airing their doubts about the former teacher's confession to killing the 6-year-old beauty queen.

History shows false confessions are a reality. Retired Edinboro University Professor Jim Fisher proved that it happened here in Western Pennsylvania, with two high-profile cases from the 1950s.

As detailed in his 1996 book, "Fall Guys: False Confessions and the Politics of Murder," heavy-handed police tactics pushed two young boys to confess to two separate murders in 1956 and 1958. Both were cleared of the crimes in 1991.

"Karr will make an interesting case study when this confession is eventually corroborated or disproved," said Fisher, who was an FBI agent from 1966 to 1972 before he began teaching criminal justice.

False confessions played a role in nearly 30 percent of cases in which a conviction has been overturned by DNA testing, according to the New York-based Innocence Project at the Benjamin N. Cardoza School of Law.

Kassin said false confessions come about in two ways: through interrogation tactics or because of psychological issues.

"The interrogation is designed to break down the suspect's resistance," he said, detailing the isolation, confrontation and bluffing that often occurs in the police interview room.

Charlie Zubryd, 11, and Jerry Pacek, 13, were victims of that process, according to Fisher.

Zubryd confessed to killing his mother, Helen, with a hatchet in their Sewickley home in 1956 when he was 8. Because he was only 11 when he confessed -- too young to prosecute -- Zubryd was never jailed, but spent the next 30 years shunned by his family.

In 1958, Pacek confessed to raping and killing Lillian Stevick, 51, in Brackenridge. The admission came after 41 hours of interrogation, Fisher said. Pacek spent 10 years in prison.
"Time in the interrogation room is a huge factor in these confessions," said Kassin. "Eventually, the person just wants to get out of there."

Fisher's research led to a pardon for Pacek -- who died in 2004 -- and the identification of Zubryd's mother's real killer.

Local prosecutors and police said state laws and local procedures safeguard against false confessions today.

"It does us no good to put the wrong person in jail," said Pittsburgh police Lt. Kevin Kraus.
According to Kraus and Deputy District Attorney Mark Tranquilli -- who oversees homicide prosecutions in Allegheny County -- the goal of a good police interrogation is to elicit information from the suspect that only the perpetrator would know.

"We want to know what they know, and the police won't tell (a suspect) what they already know," Tranquilli said.

State law limits a police interrogation in most cases to six hours, Tranquilli said. And police often will spend hours after a confession confirming what a suspect told them, Kraus said.

"The investigation does not stop with a confession," Kraus said.

That process of confirming details from the admission should keep the other group of false confessors -- those with mental illness or a pathological need for attention -- out of court.

"Most confessions in those cases, it's obvious and they can be disproved quickly," Fisher said.

Police have grown accustomed to sifting through false statements from social misfits who want to claim responsibility for high-profile murders, from the Lindbergh kidnapping in 1932 to the O.J. Simpson case in 1994.

"I don't think there is a way to know with Karr until we hear more about the evidence and the confession," Kassin said. "I want to hear what information he has on this."