Uncovering Injustices: Reevaluating Post-Conviction Innocence Cases
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Guilty until proven innocent
Changing the narrative in post-conviction innocence cases
MACDL Post-conviction Seminar
March 16, 2018
Lisa M. Kavanaugh & Ira Gant
CPCS Innocence Program
21 McGrath Highway, Somerville MA 02143
Changing the narrative
•
12
NTMs allowed
•
11
allowed in trial court
•
ONLY 1
failed in trial court
but succeeded on appeal.
Facts
win
innocence cases.
Facts
change the
narrative of guilt.
Facts begin in
trial court.
Appellate review of R. 30
Affirming
allowance
Sullivan
(2014)
(IP)
Brescia
(2015)
Ellis
(2016)
(IP)
Rosario
(2017)
(IP)
Overturning
allowance
0
out of 3
IP cases
LeFave
(1999)
Kolenovic
(2015) (IAC)
Weichel
(2006)
2017 exoneration
Perrot
(2003)
2017 exoneration
Reversing
denial
Cowels/ Mimms
(2015)
Cameron
(2015)
(IP)
Epps
(2016)
Affirming
denial
12 out of 15
IP cases
(2 still pending)
Too many others to count
“Abuse of discretion”
“Clear error”
Learning from success
Red flags
•
Eyewitness ID
•
(7 out of 12)
•
Flawed Forensics
•
(6 out of 12)
•
(False) Confessions
•
(3 out of 12)
•
(Egregious) IAC
•
(6 out of 12)
•
Gov’t misconduct
•
(6 out of 12)
No stone left
unturned
•
Treat as an unsolved case.
•
Think across disciplines.
•
Does new evidence cast
old issues in new light?
•
Tell a comprehensive new
story of innocence.
•
Give the Court a reason
to avoid procedural bars
National Registry of Exonerations:
5
Massachusetts exonerations in 2017
Case study: Victor Rosario
•
Confession:
Voluntary
•
Verdict:
Guilty
•
Appeal:
Denied
•
3 NTMs:
Denied
Changing the narrative
•
Bad
science
•
Bad
confession
•
Bad
actors
INVESTIGATORS SWIFTLY
CONCLUDE
“ARSON”
•
Hot fast fire
arson
•
Greatest damage
origin
•
“Separate” origins
arson
•
Patterns
accelerant
•
Eyewitness
Molotov
9
“ARSON” THEORY FILTERED
THRU
INTERPRETER
INTERROGATORS SECURE
“
CONFESSION
”
IN ENGLISH
•
Reject denials
•
False evidence ploy
•
Motivational ploys
•
Formatting
•
Kept at it all night
COMPROMISED
MENTAL STATE
•
Delusional statements
before interrogation
•
Falls to floor
•
Reports hallucinations
(visual and tactile)
•
Trial:
guilt-induced or
mental illness?
GLOBAL RE-INVESTIGATION
FIRE
SCIENCE
•
Starting point
•
Data collection
•
Data interpretation
•
Lack of scientific method
•
Affect on interrogation
•
Lack of
“
fit
”
CONFESSION
•
Police questioning
•
Rosario
’
s state of mind
•
Pre-trial & trial records
•
Medical recs
to present
•
DA & Comm expert files
•
Witnesses re-interviewed
Arson myths revealed
Arson myths revealed
New diagnosis revealed
ROSARIO’S SYMPTOMS
WHEN IS SCIENCE
“
NEW?
”
FIRE SCIENCE
•
1982 trial:
Molotov known
•
1992 NFPA 921
•
1995 NTM didn’t raise
•
1997 first ventilation tests
•
2000 NAS endorse NFPA921
•
2010
Hebshie
(1
st
Circuit)
CONFESSION SCIENCE
•
1982 trial: only mentally ill
suspects
falsely confess.
•
1995 NTM didn’t raise
•
1997 Ofshe/Leo paper
•
2004
DiGiambattista
(MA)
•
2014
Hoose
(MA)
Known to scientists?
Recognized/ admitted by courts?
TRIAL COURT RULING
FIRE SCIENCE
•
It’s “newly discovered”
•
But not enough to
demonstrate justice may
not have been done
•
Because of confession
CONFESSION
•
Delirium diagnosis =
“
new
”
and
substantial
•
New evidence of coercive
police tactics + social
science research =
“new”
and
substantial
•
Fire science
adds weight
to doubts re. confession
LAW AT TIME OF RULING
“NEW BUT NOT ENOUGH”
•
Grace
(1986)
- Newly
discovered evidence may
be
material
to whether
justice done
even if,
standing alone, not
enough to grant relief
.
“NEWLY AVAILABLE”
•
Kobrin
(2008)
–
“due
diligence” measured by
what could be uncovered
by
counsel not by
experts
•
Sullivan
(2014)
(DNA)
–
same standard for
newly
available
as for newly
discovered evidence.
AN EMERGING NEW TEST
Brescia,
471 Mass. 381 (2015)
•
Affirms
allowance
required by
“
extraordinary confluence of
factors
”
that hampered fairness.
•
“[I[f it appears that justice may
not have been done, the
valuable finality of judicial
proceedings must yield to our
system's reluctance to
countenance significant
individual injustices.”
Id.
at 388
Epps,
474 Mass. 743 (2016)
•
Post-conviction analysis by expert
in SBS/AHT case
•
It doesn’t matter
whether science
is new or trial counsel IAC*
•
NT required due to “
confluence of
counsel's failure
to find such an
expert
and the evolving scientific
research
that demonstrates that a
credible expert could offer
important evidence in support of
this defense.”
RELATED DEVELOPMENTS
HOLISTIC ANALYSIS
•
Cowels
, 473 Mass. 607 (2015)
•
Cameron
, 473 Mass. 100
(2015)
•
Overturn
denials
of NTM…
•
Based on DNA exclusions
from evidence previously
characterized as “inconclusive”
or “insufficient to test.”
•
DNA exclusions invalidate the
only “independent” proof of
crime or D’s involvement in it.
OLD
AND
NEW
TOGETHER
•
Ellis
, 475 Mass. 459 (2016)
•
Affirms allowance of NTM
•
Only
some
of records new
•
New evidence can act in
concert with previously known
evidence
to influence jury’s
global view of evidence &
integrity of investigation.
•
Examined crosses, closings,
new available strategies…
SJC APPROACH
BRESCIA + EPPS + ELLIS
•
“
Confluence of factors combined
to create a substantial risk of a
miscarriage of justice.”
•
Unfairness revealed by
new fire
science
combined with these
irregularities in interrogation
:
•
Medical diagnosis
could have
shaped evaluation of
voluntariness
•
Police tactics
increased likelihood
of
false
confession
•
New arson science
might have
changed defense strategy re.
whether fire set or accidental
FUTURE IMPLICATIONS
Confluence of
errors reveals
injustice
Flawed forensics causing
confluence of errors that
reveal injustice
Updates in Chapter 278A Litigation
Chapter 278A Litigation
•
Different from Rule 30
•
Confessions, inculpatory statements not a
bar to testing
•
Evidence of guilt should not be considered
•
Defendant’s Affidavit of Innocence
•
REAC standard ≠ IAC standard
Section 3 Motion
•
Initial
Threshold
•
Expansive discovery rule
•
Pleading burden, elements
under 3(b)(1)-3(b)(5)
•
Not required to actually
establish any 3(b) elements
•
Trial court should not
make credibility
determinations or consider
weight of evidence of guilt
Section 7 Hearing
•
Hearing Threshold
•
More limited discovery rule,
Section 7(c)
•
By a Preponderance burden
•
Can consider case presented
against defendant at trial
(
Clark
and
Moffat
)
Cases Interpreting Chapter 278A
Wade II
467 Mass. 496 (2014)
Donald
468 Mass. 37 (2014)
Clark
472 Mass. 120 (2015)
Coutu
88 Mass. App. Ct. 686 (2015)
Robert Stevens
15-P-732 (Apr. 8, 2016)
Lyons
89 Mass. App. Ct. 485 (2016)
Wade III
475 Mass. 54 (2016)
Marcos Sostre
15-P-1716 (June 9, 2017)
Henry Martineau
16-P-652 (Oct. 12, 2017)
Moffat
478 Mass. 292 (2017)
Marcos Sostre
•
Unpublished decision
•
Motion denied, no hrg
•
Evidence destroyed
•
No REAC would have
sought DNA testing of
clothing, gun, and bag
used by robber, because
ski mask and scarf
excluded Sostre pre-trial.
Cited
Wade II
•
No contempt charges for
police, under section 17
Henry Martineau
•
Unpublished decision
•
Motion denied, no hrg
•
Sought to test blood on
glass, wine bottle, cork
via Raman Spectroscopy
•
Denied because testing
would only impeach
alleged victim, and could
not possibly provide
results material to identity
of a perpetrator
Moffat
278A Standard of Review
•
Sec. 3
always
de novo
•
Sec. 7 motion judge
•
Documents only
de novo
•
Witnesses
abuse of discretion
•
Sec. 7 trial judge
•
Abuse of discretion
(aka AOD plus)
•
Statutory interp.
de novo
Denied testing
•
Moffat sought to test
cigarette butts on street
~100-200 feet from body
•
No potential materiality of
DNA on cigarette butts
•
Court said
: no evidence
besides Moffat’s 278A
affidavit and post-
conviction pleadings links
cigarette butts to shooting
Moffat
Denied testing
•
Court also said
: no REAC
would have sought DNA testing
on cigarette butts, because no
evidence at time of trial linked
cigarette butts to shooting
•
Unanswered
: does this scale
back
Wade II
’s REAC example?
Helpfully
•
Results from 278A testing
do not have to provide
direct evidence
of
perpetrator’s identity
•
278A results could be used
with other evidence to
establish ID
•
Unanswered
: what about
the
Martineau
problem?
Lisa Kavanaugh, Director
lkavanaugh@publiccounsel.net
Ira Gant, Staff Attorney
igant@publiccounsel.net
Kristen Gondim, Support Specialist
kgondim@publiccounsel.net
Innocence Program
Committee for Public Counsel Services
21 McGrath Highway, 2d Floor
Somerville, MA 02143
617-209-5666
Not telling anyone in this room anything they don’t know when I say that by the time cases make it to the community of lawyers who do post-conviction litigation, they are – in the eyes of the prosecutor, court, society at large – GUILTY.
Convicted at trial.
Affirmed on appeal.
Often have had many prior bites at the apple.
From the standpoint of the factual record in their cases, they are guilty until proven innocent.
Presumed guilty.
Examining cases of post-conviction innocence, this presentation challenges the narrative of guilt and underscores the importance of facts in legal decisions. Through detailed case studies and analysis, the speakers emphasize the critical role of new evidence, cross-disciplinary thinking, and the impact of flawed practices on wrongful convictions.
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Presentation Transcript
Guilty until proven innocent Changing the narrative in post-conviction innocence cases MACDL Post-conviction Seminar March 16, 2018 Lisa M. Kavanaugh & Ira Gant CPCS Innocence Program 21 McGrath Highway, Somerville MA 02143
Facts win innocence cases. 12 NTMs allowed 11 allowed in trial court Facts change the narrative of guilt. ONLY 1 failed in trial court but succeeded on appeal. Facts begin in trial court. Changing the narrative
Abuse of discretion Clear error Affirming allowance Sullivan (2014) (IP) Brescia (2015) Ellis (2016) (IP) Rosario (2017) (IP) Reversing denial Cowels/ Mimms (2015) Cameron (2015) (IP) Epps (2016) Overturning allowance 0 out of 3 IP cases LeFave (1999) Kolenovic (2015) (IAC) Weichel (2006) 2017 exoneration Perrot (2003) 2017 exoneration Affirming denial 12 out of 15 IP cases (2 still pending) Too many others to count Appellate review of R. 30
No stone left unturned Treat as an unsolved case. Think across disciplines. Does new evidence cast old issues in new light? Tell a comprehensive new story of innocence. Give the Court a reason to avoid procedural bars Red flags Eyewitness ID (7 out of 12) Flawed Forensics (6 out of 12) (False) Confessions (3 out of 12) (Egregious) IAC (6 out of 12) Gov t misconduct (6 out of 12) Learning from success
National Registry of Exonerations: 5 Massachusetts exonerations in 2017
Confession: Voluntary Verdict: Guilty Appeal: Denied 3 NTMs: Denied Case study: Victor Rosario
Bad science Bad confession Bad actors Changing the narrative
Hot fast fire arson Greatest damage origin Separate origins arson Patterns accelerant Eyewitness Molotov INVESTIGATORS SWIFTLY CONCLUDE ARSON 9
ARSON THEORY FILTERED THRU INTERPRETER
Reject denials False evidence ploy Motivational ploys Formatting Kept at it all night INTERROGATORS SECURE CONFESSION IN ENGLISH
Delusional statements before interrogation Falls to floor Reports hallucinations (visual and tactile) Trial: guilt-induced or mental illness? COMPROMISED MENTAL STATE
FIRE SCIENCE CONFESSION Starting point Data collection Data interpretation Lack of scientific method Affect on interrogation Lack of fit Police questioning Rosario s state of mind Pre-trial & trial records Medical recs to present DA & Comm expert files Witnesses re-interviewed GLOBAL RE-INVESTIGATION
DAY ONE DAY TWO DAY THREE DAY FOUR DAY FIVE ROSARIO S SYMPTOMS PROGRESSION OF DELERIUM TREMENS SYMPTOMS New diagnosis revealed
FIRE SCIENCE CONFESSION SCIENCE 1982 trial: Molotov known 1992 NFPA 921 1995 NTM didn t raise 1997 first ventilation tests 2000 NAS endorse NFPA921 2010 Hebshie (1st Circuit) 1982 trial: only mentally ill suspects falsely confess. 1995 NTM didn t raise 1997 Ofshe/Leo paper 2004 DiGiambattista (MA) 2014 Hoose (MA) Known to scientists? Recognized/ admitted by courts? WHEN IS SCIENCE NEW?
FIRE SCIENCE CONFESSION Delirium diagnosis = new and substantial It s newly discovered But not enough to demonstrate justice may not have been done New evidence of coercive police tactics + social science research = new and substantial Because of confession Fire science adds weight to doubts re. confession TRIAL COURT RULING
NEW BUT NOT ENOUGH NEWLY AVAILABLE Grace (1986) - Newly discovered evidence may be material to whether justice done even if, standing alone, not enough to grant relief. Kobrin (2008) due diligence measured by what could be uncovered by counsel not byexperts Sullivan (2014) (DNA) same standard for newly available as for newly discovered evidence. LAW AT TIME OF RULING
Brescia, Brescia, 471 471 Mass. 381 Mass. 381 (2015) (2015) Epps, Epps, 474 474 Mass. 743 (2016) Mass. 743 (2016) Post-conviction analysis by expert in SBS/AHT case Affirms allowance required by extraordinary confluence of factors that hampered fairness. It doesn t matter whether science is new or trial counsel IAC* [I[f it appears that justice may not have been done, the valuable finality of judicial proceedings must yield to our system's reluctance to countenance significant individual injustices. Id. at 388 NT required due to confluence of counsel's failure to find such an expert and the evolving scientific research that demonstrates that a credible expert could offer important evidence in support of this defense. AN EMERGING NEW TEST
HOLISTIC ANALYSIS HOLISTIC ANALYSIS OLD AND NEW TOGETHER Cowels, 473 Mass. 607 (2015) Cameron, 473 Mass. 100 (2015) Overturndenialsof NTM Based on DNA exclusions from evidence previously characterized as inconclusive or insufficient to test. DNA exclusions invalidate the only independent proof of crime or D s involvement in it. Ellis, 475 Mass. 459 (2016) Affirms allowance of NTM Only some of records new New evidence can act in concert with previously known evidenceto influence jury s global view of evidence & integrity of investigation. Examined crosses, closings, new available strategies RELATED DEVELOPMENTS
BRESCIA + EPPS + ELLIS FUTURE IMPLICATIONS Confluence of factors combined to create a substantial risk of a miscarriage of justice. Confluence of errors reveals injustice Unfairness revealed by new fire science combined with these irregularities in interrogation: Medical diagnosis could have shaped evaluation of voluntariness Police tactics increased likelihood of false confession New arson science might have changed defense strategy re. whether fire set or accidental Flawed forensics causing confluence of errors that reveal injustice SJC APPROACH
Chapter 278A Litigation Different from Rule 30 Confessions, inculpatory statements not a bar to testing Evidence of guilt should not be considered Defendant s Affidavit of Innocence REAC standard IAC standard
Section 3 Motion Section 7 Hearing InitialThreshold Expansive discovery rule Pleading burden, elements under 3(b)(1)-3(b)(5) Not required to actually establish any 3(b) elements Trial court should not make credibility determinations or consider weight of evidence of guilt Hearing Threshold More limited discovery rule, Section 7(c) By a Preponderance burden Can consider case presented against defendant at trial (Clark and Moffat)
Wade II 467 Mass. 496 (2014) Donald 468 Mass. 37 (2014) Clark 472 Mass. 120 (2015) Coutu 88 Mass. App. Ct. 686 (2015) Robert Stevens 15-P-732 (Apr. 8, 2016) Lyons 89 Mass. App. Ct. 485 (2016) Wade III 475 Mass. 54 (2016) Marcos Sostre 15-P-1716 (June 9, 2017) Henry Martineau 16-P-652 (Oct. 12, 2017) Moffat 478 Mass. 292 (2017)
Marcos Sostre Henry Martineau Unpublished decision Motion denied, no hrg Evidence destroyed No REAC would have sought DNA testing of clothing, gun, and bag used by robber, because ski mask and scarf excluded Sostre pre-trial. Cited Wade II No contempt charges for police, under section 17 Unpublished decision Motion denied, no hrg Sought to test blood on glass, wine bottle, cork via Raman Spectroscopy Denied because testing would only impeach alleged victim, and could not possibly provide results material to identity of a perpetrator
Moffat Denied testing Moffat sought to test cigarette butts on street ~100-200 feet from body No potential materiality of DNA on cigarette butts Court said: no evidence besides Moffat s 278A affidavit and post- conviction pleadings links cigarette butts to shooting 278A Standard of Review Sec. 3 always de novo Sec. 7 motion judge Documents only de novo Witnesses abuse of discretion Sec. 7 trial judge Abuse of discretion (aka AOD plus) Statutory interp. de novo
Moffat Helpfully Results from 278A testing do not have to provide direct evidence of perpetrator s identity 278A results could be used with other evidence to establish ID Denied testing Court also said: no REAC would have sought DNA testing on cigarette butts, because no evidence at time of trial linked cigarette butts to shooting Unanswered: does this scale back Wade II s REAC example? Unanswered: what about the Martineau problem?
Lisa Kavanaugh, Director lkavanaugh@publiccounsel.net Ira Gant, Staff Attorney igant@publiccounsel.net Kristen Gondim, Support Specialist kgondim@publiccounsel.net Innocence Program Committee for Public Counsel Services 21 McGrath Highway, 2d Floor Somerville, MA 02143 617-209-5666
