In 2011, Maurice Caldwell came to speak at the Vanguard’s first Dinner and Awards Ceremony. He had just been released from prison after serving nearly 20 years for a crime he did not commit. Not only did the conviction take a huge toll on Mr. Caldwell, but because they caught the wrong person, the real perpetrator was not in custody and ended up killing someone else.
That is the tragedy of wrongful convictions – particularly ones involving prosecutorial misconduct. The rush to convict often leaves vulnerable people in the community at risk from the real offender.
At the same time, spending years in custody takes a toll on everyone. This week I read about the story of William Lopez who spent 23 years in prison for a crime he did not commit.
Mr. Lopez was freed due to the work of Jeffrey Deskovic, himself exonerated in 2006 after spending 16 years in prison for a rape and murder he did not commit. Facing his own inner demons upon release, Deskovic would save himself and others by founding the Jeffrey Deskovic Foundation for Justice, with a mission of freeing others wrongly convicted.
Mr. Lopez was their first success – he was walked out of the Brooklyn Supreme Court in January 2013, a free man.
As the news article reports, “Lopez was convicted in 1990 of shooting and killing a drug dealer in Brighton Beach, Brooklyn, despite a complete lack of credible evidence. The federal judge who released him called his case ‘rotten from day one,’ lambasting prosecutors as ‘overzealous and deceitful,’ and urged the state to apologize.”
However, that was not the end of the story. Notorious Brooklyn DA Charles Hynes refused to drop the charges. Never mind that “the prosecution’s evidence was flimsy to begin with,” as U.S. District Judge Nicholas Garaufis wrote, “and has since been reduced to rubble by facts arising after trial.” When Mr. Hynes was defeated finally, the new DA dropped the appeal, arguing it would be “contrary to the interest of justice.”
Still, Mr. Lopez’s story does not end well. Last month, Mr. Lopez suffered a massive, deadly asthma attack in the middle of the night. The article notes, “Lopez suffered from asthma from the time he was a boy; perhaps it would have taken his life even if he had never gone to prison. But it’s not likely. Even without the trauma of a wrongful conviction, prison is like a debilitating illness; it literally speeds up the aging process.”
It is difficult to read stories like these. We read the celebration, and rightfully so, when these guys are released from prison, as Roeling Adams was last week. He walked out of San Quentin, freed after he spent 28 years in prison for a crime he did not commit.
Adams was wrongfully convicted of a shooting in 1986. He provided an alibi at trial and has always maintained his innocence. In an effort to protect the true culprits, the main prosecution witness testified that Adams was responsible. This witness later recanted and identified the true perpetrators.
“One of the leading causes of wrongful conviction is misidentification,” says Justin Brooks, Director of the California Innocence Project. “I am so pleased that Roeling finally has his freedom after 28 years of wrongful incarceration.”
But later, when the excitement fades, I often hearken back to the movie, Shawshank Redemption, where the film depicts not only life in a prison but also what happened to two inmates upon release. They were older men and never able to adjust to life outside of the prison. One committed suicide, while the other was rescued by the main character from a similar fate.
We hear stories locally like that of Ajay Dev, a case that is on appeal. Based on my research into that case, I have come to believe that Mr. Dev is innocent of the charges. But how long will he stay in prison for a crime he most likely did not commit? He has already been in custody for five years.
Last week, the Yolo County DA’s office announced that it was following the lead of other counties by creating a Conviction Integrity Unit. Those I have spoken to, not just in this county but across the state, who know Yolo County’s reputation are understandably skeptical.
Mr. Reisig stated in the release, “A prosecutor’s role is to ensure that our system achieves justice which includes not only convicting the guilty but also guaranteeing the protection of the innocent. The creation of this Unit helps us to obtain both of these goals.”
As the office explains, “This unit will be headed by an Assistant Chief Deputy District Attorney to review all claims of factual innocence made by persons who have been convicted of crimes.“
The release goes on to explain how the process will work: “The Unit will conduct an initial inquiry to determine whether further review or investigation is necessary. The Unit will review transcripts, evaluate forensic evidence in light of new scientific knowledge, conduct additional forensic tests, interview witnesses, or conduct any other investigation deemed necessary. This Conviction Integrity process supplements the appellate process already available to defendants and is designed to avoid the possibility of an innocent person being punished for a crime they did not commit.”
But those we talked to are concerned that the standard of “actual innocence” may be too high a standard. The DA’s office notes, “The existence of a reasonable doubt does not necessarily result in a conclusion that the defendant is actually innocent, the conclusion must be that there is clear and convincing evidence that there exists a plausible claim of actual innocence in the case.”
The model that we support is Santa Clara’s model, which was created in concert with the the Northern California Innocence Project. Santa Clara DA Jeff Rosen said, “Integrity is central to the Santa Clara County District Attorney’s Office. We will protect defendants’ rights, even as we justly prosecute them. For a prosecutor, the ends never justify the means, we do the right thing, and we do it the right way.”
David Angel, a deputy district attorney, runs the program in Santa Clara and he will be one of the featured speakers when the Vanguard holds its Fourth Annual Dinner and Awards Ceremony on Saturday, November 15, at the Senior Center in Davis.
“The reason it is so important for a District Attorney’s office to have a Conviction Integrity Unit is sometimes there’s mistakes made in the criminal justice system,” Jeff Rosen said in a 2011 interview at the Berkeley Law School. “It’s a system made up of human beings — from police officers to witnesses to prosecutors, defense lawyers, and judges. And sometimes there are mistakes.”
He added, “I think that it’s very important that just because a mistake may have been made five or ten years ago and someone perhaps was wrongfully convicted or received a sentence that they should not have received, we should go back and fix that. So, I think it’s part of having an ethic in the office of sort of continuous quality improvement.”
But for a program like this to work, the office has to be able to admit to making mistakes. Skepticism creeps in with a department that has never acknowledged mistakes.
The problem goes beyond that. What represents evidence of actual innocence? If there is new DNA evidence that points to another suspect, that is one thing. But most new and recent cases are not going to involve new DNA evidence.
So, we have issues like eyewitness identification, failure to turn over exculpatory evidence, and witness recantation. Would any of those meet the test of evidence of actual innocence? On the surface that would seem an extremely high bar and would only be used in cases where there was new physical evidence that pointed toward the guilt of someone else.
[callout bg=”#606060″ color=”#ffffff” font=”0″ fontsize=”16″ bt_content=”Click Here” bt_pos=”right” bt_style=”undefined” bt_link=”https://secure.yourpatriot.com/ou/dpd/150/1452/eventsignup.aspx” bt_target=”_blank” bt_font=”0″]David Angel will be in Yolo County on November 15 at the Vanguard Court Watch Dinner and Awards Ceremony to talk about the Santa Clara Convictions Integrity Unit – for more information click the button[/callout]
On the other hand, the Dev case will likely turn on whether the judge properly admitted evidence involving the alleged victim’s interpretation of a 50-minute pretext call that meandered between English and Nepali, the judge’s failure to properly instruct the jury on the law, and the judge’s refusal to allow potentially exculpatory evidence.
The defense argues that the prosecution relied on three pieces of evidence to convict Mr. Dev: the pretext call, the victim’s allegations, and pornographic evidence “which was used to support the intent elements of the sex-related crimes and two separately charged pornography charges.”
The appeal attacks the legal foundations under which this evidence was admitted by Judge Fall, but none of this is likely to meet the standard established by the DA’s office, even though a close reading shows that a series of errors by Judge Fall ultimately led the jury to reach a guilty verdict.
The bottom line is that we believe that the idea of a Conviction Integrity Unit is a good one. However, if Mr. Reisig wishes for this to be more than just talk, he should consult with the Northern California Innocence Project and others to create real safeguards in his department to protect the integrity of his convictions and to keep innocent people out of prison.
—David M. Greenwald reporting
David
I agree with you that consultation would be good. Better still would be to establish an independent review board so as to do away completely with the perception that truly “independent” review will not be possible under the current DA office leadership.
When I talked to David Angel last year, one of the points he made was the importance for having the unit not only in the DA’s office but in the mainstream decision-making portion of it. There are plenty of opportunities for third parties to look at it, but there also needs to be an internal mechanism.
I want to be optimistic and hopeful about this new Yolo Convictions Integrity Unit. Guess only time will tell. For now, I’m extremely skeptical.
I will only believe the above statement when the DA’s office purges itself of the people who try to win cases at all costs. This DA only seems to believe that anyone accused of a crime is automatically guilty of it.
the da is good at talking, but are they really willing to scrutinize their work and admit to mistakes? it’s easy to say the right things in a press release, when push comes to shove, are they willing to undo their victories?
i’d be loathe to point out i’m suspicious that just a month before the vanguard’s dinner on prosecutorial misconduct, where they have invited david angel, that the da’s announcement is coincidence?
David,
I think one of the key points you make is that people have to feel comfortable that a mistake may have been made. These mistakes can happen for a variety of reasons. The main point is that we don’t want wrongful convictions.
If there is a possible case where someone was wrongfully convicted, we have to look with an unbiased perspective. This is tough to do because nobody wants to feel like they put someone in prison when they were innocent.
Ajay Dev’s case brings a lot of emotion and political baggage with it–especially because he was sentences to 378 years. Some may not want to look at his case too closely, but there are too many people who have first-hand knowledge that the accuser was lying about situations in which she claimed rape. The pretext evidence is flawed, and jurors said that the pretext call is what made them say he was guilty. Jurors admitted that the accuser’s testimony was hard to swallow. And her doctor, social worker, family and friends saw no sign of abuse or symptoms of trauma. It is been five years since his conviction, and still people are rallying to have his case heard because a mistake was made.
I invited any who would like to look at the appellate opening brief and the appellate reply brief to see the flaws in this case to go to http://www.seekingjusticefortheinnocent.com/index.php/ajay/ajay-news/legal-case/693-ajay-dev-reply-brief-to-appellate-court
I hope that Mr. Dev will be released and fully exonerated. I wish there was a way for him to get back his lost years, but there isn’t. I hope and pray that the overzealous, win-at-all-cost legal bullies will someday publicly apologize to Mr. Dev.
These Integrity Units sound like Internal Affairs in law enforcement offices. The actual job of IA is to cover up wrong doing in the department, not to expose it.
Ventura County has a seasoned attorney handling “Conviction Integrity”. When I requested a public record, his response was that it couldn’t be released, pursuant to case law from 1938! As soon as he discovered I knew something about public records law, he apologized for “the confusion” and sent the public document. He’s shown no integrity re public records law, who would rely on him for true conviction integrity?
It appears the state association of DA’s has come up with Integrity units as window dressing for their own criminal conduct.
I think the idea of a Convictions Integrity Unit is a great concept especially in Yolo county, but until the DA’s office is willing to admit to mistakes the unit won’t reach its full potential.
Ajay’s case is a perfect example of this. There were multiple mistakes made throughout the trail yet the office has not admitted to anything as of yet. I thank you for publicly stating your support of Ajay’s innocence, it is good to see more people acknowledging the injustice that has happened to Ajay and his family.
Re: adult hard core porn. It is something that the majority of adult males enjoy and understand, but the majority of adult females do not. The DA understands that many women find it somewhat degrading and repulsive, and they use that to their prosecutorial advantage. They know that some women on a jury will not like it if the defendant viewed adult hard core porn. But Playboy and Penthouse and Hustler are legal. Barber shops all over America used to have Playboy magazines in plain sight.
IMHO, a person who is accused of a sexual crime should not be punished for viewing legal adult hard core porn in the privacy of their home, if the (adult) porn participants (models, actors, etc.) gave full consent.
I agree with you, but let me make this clear. Ajay was not convicted on any porn charges.
Also, an email that proved Ajay was at work while porn was viewed at the house was not allowed into the trial. So the porn was viewed by someone at the house–possibly the accuser and whoever was with her.
The pornography shown to the jurors was just a strategy by the prosecution to paint a picture of a “disgusting individual.” The pornography should never have been allowed in the trial because the evidence was so weak.
Most of the pornography they claimed was on his computer came from a “porn storm” that had no content, only titles and was probably downloaded with music files. And finally, the accuser claimed to have had been shown porn when she was 15. But evidence showed that the porn video she claimed to have been shown wasn’t even made then.
So the whole pornography thing was a sham and used only to infuriate the jury.
Re: intent: if a teenager views a Harold & Kumar movie, does that prove she or he intends to smoke or sell cannabis?
If I view that Penelope Cruz movie about cocaine, does that mean I intend to snort some?
If you view Silence of the Lambs, do you intend to become a serial killer?
Do most men who watch porn intend to sexually assault someone? No.
I do want to address a quote attributed to the DA’s office “The existence of a reasonable doubt does not necessarily result in a conclusion that the defendant is actually innocent, the conclusion must be that there is clear and convincing evidence that there exists a plausible claim of actual innocence in the case.”
The American sense of justice posits that when a person is at first granted the stance of innocence and then proven guilty by due process, that they should be subject to the need to be proven innocent thereafter. But a corruption in due process occurs prior to a court case. Americans may profess to abide by the rules of innocent until proven guilty, but how many accused are condemned in spite of a lack of evidence beyond the initial accusations laid upon them?
The case of Ajay Dev, and thereby any case, is unfortunately subject to the repugnance of the so named crime. People are much more adamant and animated that a rapist or murderer is guilty than someone who speeds. There may be a nearly perfect set of evidence to convict the speeder, and lots of ambiguous evidence in the case of a murderer, but many will make harsher condemnation of the murderer. This diversion from the American sense of justice, and another factor in the same vein, a fear of the crime itself, propagates throughout society affecting the original concept of the American judicial system. The the accused are subject to a judicial process mired with controversy and blatant problems. Therefore it seems we must make a much greater effort to distrust the judicial system, and recognize human error.
This of course does not mean we should junk the whole judicial system and start anew, but what if we continue to view every person in prison through the lens of innocent until the expiration of their sentence? What if we retry convicted criminals on the grounds that extraordinary evidence is again needed to prove them guilty?
How can we ever consider the totality in judgement while holding an understanding of the bias and imperfection of humans? To be assumed guilty and thus required to be proven innocent is to weigh potentially misplaced judgments against the possibility of a life stolen.
I for one am not OK with this. I for one wish that an entire branch of the judicial system, and not small semi-autonomous (or semi-functional) judicial checking bodies, like the Conviction Integrity Unity, are all we have to show for the wrongfully convicted. These groups are a must, but our current efforts lack the appropriate repercussions demanded of the thousands of years innocents have already spent in jail.
Why ask, “If a person is guilty or not,” if we can instead ask “Did the judicial system fail in its process of conviction?” The judiciary must always remain on trial.