innocence blog

A Web log for the Innocence Institute of Point Park University

Friday, December 01, 2006

Conviction Overturned in 1997 Rape & Slaying

This article appeared in the Washington Post on December 1, 2006:

Conviction Overturned In 1997 Rape, Slaying
Judge Cites Failure to Contest Confession

By Tom Jackman
Washington Post Staff Writer

A Norfolk judge has ruled that a sailor convicted in a 1997 rape and murder should be retried or released because his attorney did not attempt to have the sailor's confession thrown out.

Derek E. Tice, 36, is one of the convicted "Norfolk 4" sailors, who have launched a campaign to establish their innocence in the attack on Navy wife Michelle Moore-Bosko. Three of the four -- Tice, Danial Williams, 34, and Joseph Dick, 30 -- received life sentences for murder. Williams and Dick pleaded guilty. A fourth sailor, Eric Wilson, 29, was acquitted of murder but convicted of rape, served eight years, and has been released.

At one point, Norfolk authorities charged seven sailors in Moore-Bosko's rape and death, which occurred July 8, 1997, while her husband was at sea. But the defendants' DNA did not match DNA from the scene; their statements contained inaccuracies; and the Norfolk apartment yielded no evidence of a gang rape.

Then, an eighth man, Omar Ballard, confessed and said he had acted alone. And his DNA did match. Prosecutors dismissed charges against three of the sailors and went to trial against Tice and Wilson.

Last year, lawyers agreed to take on the cases of Tice, Williams and Dick at the request of the Innocence Project, which works on behalf of inmates the group believes were wrongly convicted. The group filed clemency petitions with the governor late last year, contending in part that the men were coerced into falsely confessing. The petitions are pending.

But Deborah L. Boardman, a Washington attorney for Tice, also filed a civil habeas corpus suit alleging that Tice was being illegally imprisoned. In particular, she asked how Norfolk homicide detectives obtained Tice's incriminating statement and whether Tice's attorney did enough to suppress it. Such suits rarely succeed.

After being warned against self-incrimination, Tice agreed to talk to two detectives. Then he was turned over to another detective, Randy Crank. According to Crank's notes, Tice told Crank that he had decided "not to say any more; that he might decide to after he talks with a lawyer or spends some time alone thinking about it."

Crank did not question Tice again. But the first two detectives resumed questioning, and Crank apparently did not tell them of Tice's comment, according to Norfolk Circuit Court Judge Everett A. Martin Jr.'s ruling.

Tice's "right to silence was not scrupulously honored," Martin wrote.

Tice was represented at trial by James O. Broccoletti and Jeffrey R. Russell of Norfolk, experienced criminal defense lawyers. Broccoletti testified at a hearing in September that "there must have been some reason I didn't file" a suppression motion, but he couldn't remember why. "I find," Martin wrote, "there is a reasonable probability the jury would have acquitted [Tice] if his confession had not been admitted into evidence." He concluded that Tice's right to competent, reasonable assistance of counsel had been violated.

Tice's father, Larry Tice of Clayton, N.C., said the ruling "just does to prove what I've known for years, that these men are innocent."

Assistant Attorney General Stephen R. McCullough said the state would appeal to the state Supreme Court. If the state loses on appeal, the Norfolk commonwealth's attorney would have to decide whether to retry the case.

Moore-Bosko's parents, Carol and John Moore of Pittsburgh, said they were "profoundly disappointed" by the ruling and believe that the evidence is clear that Tice raped and murdered their daughter.

Wednesday, November 29, 2006

Why the innocent confess

This editorial appeared in the Los Angeles Times:

Why the innocent confess

By Alan Hirsch, ALAN HIRSCH, a visiting professor of legal studies at Williams College, created and operates .

In the penalty phase of his trial, Zacarias Moussaoui declared that he planned to fly a fifth hijacked airplane into the White House on Sept. 11, 2001. No independent evidence suggests that such a plan ever existed. It seems quite possible that Moussaoui, who appears to be deranged in one way or another and clearly enjoys taunting his captors, fabricated it. Nevertheless, many commentators instantly declared that Moussaoui had sealed his fate — death — with this confession.

They may well be right. That's because, in our legal system, confessions are among the most persuasive kinds of evidence juries hear. Juries — like all of us — find it extremely difficult to believe that anyone would confess to a crime he didn't commit, or in this case, that he didn't plan to commit.

It's a notion that requires scrutiny. The commentators in the Moussaoui case, and the jury too, are presumably unaware that more than 200 people claimed to have kidnapped the Lindbergh baby. Desire for notoriety is among the many causes of false confessions. In fact, a surprising number of innocent people confess to crimes they did not commit.Thanks in large part to DNA testing, we have learned that innocent people are convicted with greater frequency than anyone imagined. Since 1989, DNA testing has exonerated 175 people convicted of crimes. Intriguingly, one-fifth of them had confessed (among them, the five teenagers convicted of assaulting the "Central Park jogger").

Spurred by the DNA exonerations, several scholars have sought to show the prevalence of false confessions. Professors Richard Leo and Steven Drizin recently published a study in the North Carolina Law Review documenting 125 false confessions. Although it is impossible to estimate the total number or percentage of false confessions, experts believe that the known cases represent only the tip of the iceberg.

Many social scientists explain that a major cause of false confessions is interrogation tactics that leave an innocent suspect feeling there is no escape except an admission of guilt. Courts condone these tactics, apart from extreme cases. Interrogators exaggerate or fabricate evidence, telling a murder suspect, for example, that he was identified as the culprit in the victim's dying declaration. They threaten him with severe punishment unless he confesses, or they suggest mitigating circumstances and hint at lenient treatment, if only he confesses. Throughout the interrogation, they communicate unbreakable certainty of his guilt.

In the face of all this, at some point many suspects find the situation hopeless and conclude that they are simply better off confessing. That decision may be foolish, but it is not irrational. It reflects a conscious or unconscious cost-benefit analysis — albeit an analysis skewed by fear and fatigue.

But aren't the interrogators obligated to inform the suspect of his rights to counsel and to remain silent? Yes, but many false confessors don't fully understand their Miranda rights. Moreover, the innocent suspect may feel no need to exercise these rights, believing he has nothing to hide. Paradoxically, his innocence only makes things worse. His aggressive denials of guilt cause interrogators to more insistently assert his guilt, triggering a Kafka-esque cycle of deepening despair.

Experts have identified many additional explanations for false confessions. Some innocent suspects actually come to believe they committed the crime. Others may confess to protect a friend or loved one, or to expiate guilt over other improper actions.

Once the confession is made, people assume it to be true because of the incorrect intuition that an innocent person would not confess, absent extreme coercion such as torture. When defendants who ultimately turned out to be false confessors pleaded not guilty and went to trial — aggressively recanting the confession and working to contradict it — studies show that conviction rates were high, ranging 73% to 81%.

The power of confessions also is on depressing display among prosecutors. After DNA exonerations of false confessors, prosecutors generally refuse to admit error, instead coming up with a new theory of the case (for example, that the confessor had an accomplice who physically committed the crime) even if no evidence supports it.

The reality is that confessions should be regarded as one piece of evidence only, and analyzed to determine, among other things, their consistency with other evidence and whether they disclose details of the crime unknown to the public. Instead, the authorities commonly regard a confession as a guarantee of guilt that forecloses the need for further inquiry.

Which brings us back to Moussaoui. It would be foolish to make him the poster child for false confessions — his admissions of involvement with Al Qaeda have been verified; he almost certainly trained to commit terrorist acts, and he is unrepentant, to put it mildly. But if the jury sentences him to death, let's hope it is based on hard evidence of what he actually did rather than on a dubious, unsupported confession.

Few will shed tears for Moussaoui, but the deeply engrained habit of taking confessions at face value is one we desperately need to break.

Monday, November 27, 2006

Ex-inmate's malpractice suit is settled with noted lawyers

This article appeared in the New York Times on November 21, 2006:

Ex-Inmate’s Malpractice Suit Is Settled With Noted Lawyers

By WILLIAM K. RASHBAUM

Barry C. Scheck and Peter J. Neufeld, founders of a legal clinic that pioneered the use of DNA technology to help free innocent prisoners, have agreed to pay $900,000 to a man wrongly convicted of rape who sued them for malpractice, lawyers on both sides of the case said yesterday.

The man, Lee Long, had sued Mr. Scheck; Mr. Neufeld; another lawyer, Nick Joel Brustin; and the law firm of Cochran, Scheck & Neufeld, charging that they missed a deadline for filing his wrongful-imprisonment claim in state court after his rape conviction had been overturned.
Mr. Long, 46, served six years in state prison after a Queens jury convicted him of raping a woman in her car in Jackson Heights in 1994. Mr. Long, who had consistently maintained his innocence, was walking home eating strawberry ice cream when he was arrested and charged in the attack.

He was freed in June 2000 after an investigation by the Queens Legal Aid Society and the office of District Attorney Richard A. Brown uncovered evidence that showed that he did not commit the crime.

Mr. Long hired Mr. Scheck and Mr. Neufeld, founders of the Innocence Project at the Benjamin N. Cardozo School of Law, and the law firm to bring a wrongful-imprisonment lawsuit against New York State. It was filed in 2002.

In his malpractice action, filed in United States District Court in Brooklyn in June 2005 by his new lawyer, Joel Berger, Mr. Long claimed that the lawsuit against the state was filed after the two-year deadline for such claims had passed.

The New York State Court of Claims threw out Mr. Long’s lawsuit in 2003, saying it had been filed improperly and too late. He appealed to the Appellate Division of State Supreme Court, Second Department; it declined to overturn the lower court, but cited other reasons.

The state’s highest court, the Court of Appeals, concluded that he had not missed the deadline in the Court of Claims. But it ruled that the case had been improperly filed because Mr. Scheck had sworn to the truth of the lawsuit’s complaint, as opposed to Mr. Long, as is required for such suits filed in the Court of Claims.

The $900,000 settlement was announced in a single-page news release issued jointly by Mr. Berger, the lawyer for Mr. Long; and Ronald C. Minkoff, who represented the Cochran law firm, Mr. Scheck, Mr. Neufeld and Mr. Brustin. The release also said that a civil rights lawsuit Mr. Long filed against New York City had been settled for $50,000.

The news release said both sides had agreed to make no other public statement about the settlement. Neither Mr. Berger nor Mr. Minkoff would comment yesterday.

Mr. Scheck and Mr. Neufeld, who have won praise for their work on behalf of destitute clients, have represented or assisted in the cases of two-thirds of the 187 post-conviction DNA exonerations that have been obtained by the Innocence Project nationwide.
This article appeared in the New York Times on November 21, 2006:

Ex-Inmate’s Malpractice Suit Is Settled With Noted Lawyers

By WILLIAM K. RASHBAUM

Barry C. Scheck and Peter J. Neufeld, founders of a legal clinic that pioneered the use of DNA technology to help free innocent prisoners, have agreed to pay $900,000 to a man wrongly convicted of rape who sued them for malpractice, lawyers on both sides of the case said yesterday.

The man, Lee Long, had sued Mr. Scheck; Mr. Neufeld; another lawyer, Nick Joel Brustin; and the law firm of Cochran, Scheck & Neufeld, charging that they missed a deadline for filing his wrongful-imprisonment claim in state court after his rape conviction had been overturned.
Mr. Long, 46, served six years in state prison after a Queens jury convicted him of raping a woman in her car in Jackson Heights in 1994. Mr. Long, who had consistently maintained his innocence, was walking home eating strawberry ice cream when he was arrested and charged in the attack.

He was freed in June 2000 after an investigation by the Queens Legal Aid Society and the office of District Attorney Richard A. Brown uncovered evidence that showed that he did not commit the crime.

Mr. Long hired Mr. Scheck and Mr. Neufeld, founders of the Innocence Project at the Benjamin N. Cardozo School of Law, and the law firm to bring a wrongful-imprisonment lawsuit against New York State. It was filed in 2002.

In his malpractice action, filed in United States District Court in Brooklyn in June 2005 by his new lawyer, Joel Berger, Mr. Long claimed that the lawsuit against the state was filed after the two-year deadline for such claims had passed.

The New York State Court of Claims threw out Mr. Long’s lawsuit in 2003, saying it had been filed improperly and too late. He appealed to the Appellate Division of State Supreme Court, Second Department; it declined to overturn the lower court, but cited other reasons.

The state’s highest court, the Court of Appeals, concluded that he had not missed the deadline in the Court of Claims. But it ruled that the case had been improperly filed because Mr. Scheck had sworn to the truth of the lawsuit’s complaint, as opposed to Mr. Long, as is required for such suits filed in the Court of Claims.

The $900,000 settlement was announced in a single-page news release issued jointly by Mr. Berger, the lawyer for Mr. Long; and Ronald C. Minkoff, who represented the Cochran law firm, Mr. Scheck, Mr. Neufeld and Mr. Brustin. The release also said that a civil rights lawsuit Mr. Long filed against New York City had been settled for $50,000.

The news release said both sides had agreed to make no other public statement about the settlement. Neither Mr. Berger nor Mr. Minkoff would comment yesterday.

Mr. Scheck and Mr. Neufeld, who have won praise for their work on behalf of destitute clients, have represented or assisted in the cases of two-thirds of the 187 post-conviction DNA exonerations that have been obtained by the Innocence Project nationwide.