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Wrongful Convictions

BLIND JUSTICE
THE PROBLEM OF WRONGFUL CONVICTIONS

According to the American Civil Liberties Union, since 1989, more than 200 people in California have been wrongfully convicted of murder, rape, or other serious offenses. These offenses can carry lengthy prison sentences and other penalties. At least, one California resident spent 24 years in prison for a murder he did not commit. He was railroaded by the government's use of a coached "eyewitness" who later recanted and a jailhouse informant who lied on the stand. Another California man was wrongfully convicted of a rape and spent ten years behind bars before he was exonerated by new DNA testing. Persons who were sentenced to death and later found to be wrongfully convicted spent an average of nine years in prison. In almost every case the years of incarceration are marked by unyielding perseverance on the part of the defendants and their lawyers to get to the heart of the truth-even when it takes almost a quarter of a century to do so.

The causes of wrongful conviction

A conviction is the result of a guilty plea or where a criminal trial ends in a judgment that the accused is guilty as charged. An accused is convicted by a verdict levied by either a jury or by the judge where the defendant has waived the right to a jury trial. Though many factors may trigger a decision to convict a person, despite his or her steadfast proclamations of his or her innocence, the three primary causes that ultimately shape the fate of the wrongly convicted are: 1. False and unreliable evidence; 2. Illegal or unethical nolconduct by the government, which includes both police and prosecutors; and 3. Ineffective assistance of counsel. The leading source of wrongful convictions is unreliable evidence in the form of erroneous eyewitness identification-very often by a victim. Following closely behind is false testimony proffered by lying witnesses. The latter category embraces jailhouse informants who often make deals such as a reduction of their sentence, or obtain some other benefits from the government in exchange for their testimony. In addition to false and unreliable testimony, unreliable forensic evidence remains a large contributor to wrongful convictions.

Unfortunately, unethical conduct by the government is an ongoing problem. Unethical conduct can include but is not limited to: mishandling of physical evidence; failing to disclose exculpatory evidence; threatening, badgering or tampering with witnesses; and using false or misleading evidence or false and coerced confessions. Government misconduct may lead to a wrongful conviction. The police, for example, may unlawfully seize evidence which is later introduced into evidence. Also, factual wrongful convictions, which condemn a person who did not commit the crime, may also stem from government misconduct.

Unfortunately, ineffective assistance of counsel is a frequent culprit in wrongful conviction cases. While a person may be wrongfully convicted based just on one factor, more often it is a combination of factors that ultimately prompts the unfortunate result. For example, in a recent federal case charging the accused with murder and drug trafficking, the defense counsel allowed transgressions by the government to slip unnoticed and failed to secure, no less present, mitigating evidence on behalf of his client. This combination of government misconduct and ineffective assistance of counsel resulted in a sentence of death for the defendant. The case is currently on appeal.

Wrongful convictions can occur even without a trial. An accused is not required to stand trial where he chooses to accept a plea offer. Entering a guilty plea is another way to get convicted. Though it may seem like a defendant's choice to enter a guilty plea would be an unlikely source of a wrongful conviction, at least one study has shown that innocent defendants are more likely to accept plea-bargains when they face numerous charges or when the probable punishment is severe. Since the outcome of a criminal case is never certain, many innocent people feel compelled to plead guilty simply out of fear of receiving a greater sentence if convicted at trial. Also, if the accused has a prior criminal record, it may provide additional incentive to plead guilty since it is probable that a prior conviction will re-surface during the current proceeding.

While there are safeguards to prevent innocent persons from coerced guilty pleas, they are not foolproof. For example, in order to ensure that a guilty plea is made voluntarily, the courts must inquire in open court whether an accused understands his or her rights and the consequences of his or her decision to plead guilty, but they (the courts) are not mandated to reject guilty pleas made despite assertions of innocence. See North Carolina v Alford, 400 US 25 (1970). In other words, if the accused maintains his or her innocence but nevertheless pleads guilty, it is a conviction with all its consequences.

Are There Any Remedies?

Every individual convicted of a crime in the state of California has a statutory right to appeal the judgment of conviction except on a plea of guilty or nolo contendere (after a guilty plea, a defendant has a limited right to appeal). Despite this right to review, an appellate court is under no obligation to review a frivolous appeal. This means that a person is entitled to an appeal if there are arguable issues for review.

Although an appeal is a potentially powerful remedy, it is a sophisticated criminal procedure. First, a person appealing a criminal conviction has no right to self-representation even though an accused has a constitutional right to represent himself or herself at trial. Faretta v California, 422 US 806 (1975). As the court explained in In re Barnett, 31 C4th 466 (2003), the Sixth Amendment is the sole source of the right of self-representation and it pertains strictly to the basic rights that an accused enjoys in defending against a criminal prosecution and does not extend beyond the point of conviction.

Furthermore, there are very specific, complex pleading requirements at the appellate level. For example, if the conviction was based on false evidence, the petitioner must prove that the evidence was a) false and b) substantially material or probative of the issues of guilt or punishment. If in the alternative, an erroneous identification of the defendant was the basis for a wrongful conviction, a defendant convicted of a felony may make a written motion to the trial court for DNA testing. The motion must explain how identity was at issue in the case and why there is a reasonable probability that the requested DNA testing would have yielded defendant a more favorable result at trial or sentencing. The defendant's motion must also identify the evidence to be tested, the type of DNA test requested and the results of any prior DNA test. In short, such a motion advises the court that there is biological evidence that points to someone other than the defendant as the perpetrator.

Additionally, practice has shown that appeals in connection with ineffective assistance of counsel are not easily won. If the defendant decides to pursue the ineffective assistance claim, the defendant must prove that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v Washington, 446 US 668 (1984). To do this, it is not recommended that the defendant retain the same attorney who represented him or her at the trial. Most appellate attorneys agree that a basic duty of an appellate counsel in criminal cases is to evaluate the adequacy of trial counsel's representation. There is an obvious and unavoidable conflict involved in any attempt to evaluate one's own performance. See People v Bailey, 9 CA 4th 1252 (1992).

At some point in the lifespan of the appeal, a final decision will be made and there will be no further opportunities to appeal. When all avenues of appellate relief have been exhausted and the defendant remains imprisoned, there is one primary remaining remedy available to the wrongfully imprisoned: he or she may challenge the conviction through a "collateral attack" by a petition for a writ of habeas corpus. The federal constitution does not provide criminal defendants the right to appointed counsel when mounting collateral attacks on their convictions. The right extends to the first appeal and no further. Pennsylvania v Finley (1987 481 US 551, 555). Under California and federal law, the court must appoint counsel for an indigent petitioner mounting a collateral attack on the judgment of conviction when the petitioner has stated facts sufficient to satisfy the court that a hearing is required. People v Shipman, 62 C.2d 226 (1965). In a petition for writ of habeas corpus, the petitioner bears the burden of proving that the conviction was illegal. Unfortunately, such petitions are rarely successful.

In light of the above information, it is wise, and indeed critical, to obtain an experienced and competent attorney as early as possible, even before charges have been filed.

Seth P. Chazin
Elena Thibeault

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer.

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