Late last week, Governor Jerry Brown signed SB 1058 into law. According to a release from the NCIP (Northern California Innocence Project), the bill “will help exonerate innocent men and women who have been wrongfully convicted based on outdated expert testimony. It will help assure people wrongfully convicted based on such testimony can have their conviction overturned when the expert later admits he or she was wrong, or when new science proves the testimony wrong.”
Under current law, a judge was prohibited from considering new testimony, including the most recent forensic evidence in evaluating a person’s claim of innocence. This prohibition applied even if a key expert witness recanted his or her earlier testimony or if it was undermined by new scientific research.
“Unfortunately, there are innocent people currently in prison based on outdated forensic evidence that technological developments have later disproven,” said Linda Starr, NCIP legal director. “SB 1058 is a common sense measure that gives courts the ability to weigh the most current, accurate and reliable forensic evidence in determining whether to overturn a potentially wrongful conviction. Our justice system and the wrongfully convicted deserve nothing less.”
The bill, authored by Senator Mark Leno (San Francisco), enables the judge to rule that a wrongful conviction has occurred “has occurred if expert testimony provided during a trial served as the primary basis for an incarcerated person’s conviction and has subsequently been retracted or disproven by scientific or technological advances.”
“Previously, the law allowed a judge to reconsider a conviction if a key eyewitness recanted his or her testimony, but the same standard did not apply to expert witnesses who depend on new and emerging technologies to make their conclusions,” said Senator Leno, D-San Francisco. “This law clarifies that false evidence provided by such an expert witness may be considered when proving a person’s innocence.”
“Over the last few decades we have witnessed tremendous technological and scientific advances in the field of forensics, many of which have proven older theories incorrect and outdated,” said Linda Starr
According to the California Commission on the Fair Administration of Justice, forensic science testing errors are the second most common reason for the wrongful conviction of innocent men and women in the U.S. SB 1058 allows a judge to look at false expert testimony as a factor when considering an individual’s challenge to his or her incarceration.
Current law allows an incarcerated person to demonstrate that there is a reasonable probability that the trial result would have been different had false evidence not been introduced. However, existing law does not account for expert forensic testimony introduced at trial which is later unsubstantiated or disproved, either by that same expert or the scientific community.
“This bill allows us to fix our mistakes,” said Katherine Williams, legislative advocate for the ACLU of California, which supports SB 1058. “It opens the courthouse doors once more so that innocent people who have been wrongly convicted because of someone else’s error will have a chance to clear their name and regain their freedom.”
Governor Brown also signed SB 980, authored by Senator Ted Lieu, that will improve the process for wrongfully convicted prisoners to obtain DNA testing. It gives prisoners improved access to the physical and biological evidence preserved in their cases and clarifies the procedures for obtaining DNA testing in California.
SB 980 was co-sponsored by NCIP, the California Innocence Project, The Project for the Innocent at Loyola Law School, and the American Civil Liberties Union.
“I want to thank Gov. Brown for his courage in signing legislation that promises to help correct the unspeakable offense of a wrongful conviction of an innocent person,” Lieu, a former Air Force JAG prosecutor who remains a lieutenant colonel in the reserves, said about Senate Bill 980. “Compounding this heinous action is the fact the true perpetrator remains free to prey on all of us.”
Backed by the rights group, Innocence Project, and authored by Lieu, D-Redondo Beach, the measure cites research showing that recent improvements in technology related to DNA, or deoxyribonucleic acid, has led directly to the exonerations of hundreds of innocent people.
Specifically, there have been 311 post-conviction DNA exonerations in the United States since 1989. Exonerations through post-conviction DNA testing have been won in 36 states. Since the year 2000, there have been 244 post-conviction DNA exonerations. DNA is a molecule that encodes the genetic instructions used in the development and functioning of all known living organisms and many viruses.
“These DNA-exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed,” Lieu said.
Specifically, SB 980 will:
- Clarifies that the standard to get DNA testing (1) does not require a showing that the DNA testing will prove innocence; and (2) in determining whether to grant testing, the court should not decide that the evidence, if exculpatory, would actually require that the person be released from prison.
- Require law enforcement agencies to provide information and/or documentation about the existence of biological evidence, such as whether it has been destroyed or preserved. In addition, the bill would allow courts to order unknown DNA profiles to be run through the FBI’s Combined DNA Index System database to identify the true perpetrator, as long as such a search does not violate state or national rules.
- Extend from 90 days to 180 days the notice period law enforcement agencies must give prior to destroying evidence; and also extend from six months to one year the time allowed for the filing of a request for DNA testing.
“There have been more than 300 people nationwide who were proven innocent through the use of post-conviction DNA testing,” Alex Simpson, associate director of the California Innocence Project, said. “Many of these people served decades in prison for crimes they didn’t commit. SB 980 would help ensure that innocent people get access to evidence that can prove their innocence.”
However, the news was not all good, as Governor Brown vetoed Assemblymember Tom Ammiano’s AB 885, a bill that would have created a modest sanction in the courts for prosecutors who try to win trials by withholding evidence.
“I’m not just disappointed at the Governor’s veto of this bill, I’m angry,” Assemblymember Ammiano, who was honored by the Vanguard last year for his efforts, said in a statement. “We need so much more than this to balance the system and keep the innocent out of prison, as the writers of the Constitution intended. Most prosecutors are honorable, but we’ve seen too many cases where DAs don’t play fair – hiding evidence or releasing it at the last minute.
“I recently met 40-year-old Obie Anthony, who has spent nearly half his life in prison because prosecutors hid evidence that would have pointed to his innocence,” said Assemblymember Ammiano. “A court has now completely exonerated him, but that exoneration has come 20 years too late. We need this bill to stop the few prosecutors whose zeal for convictions lead them to cut corners on justice. We can’t wait decades to free the innocent while the true perpetrators run free. ”
The bill would have allowed judges to inform a jury when a district attorney has been found to have intentionally withheld significant evidence.
Although such non-disclosure of evidence is prohibited under U.S. Supreme Court decisions, the consequences for prosecutors are few and, despite the governor’s assertions in his veto message, rarely used. In Anthony’s case, he was only granted a 24-hour continuance in his trial.
Defendants can use that non-disclosure in appeals, but that can take years. Having this tool available to courts would have meant that all prosecutors would disclose all evidence, and that innocent defendants would have a fair chance to stay out of prison.
“AB 885 could have saved me from spending 17 years in state prison,” said Mr. Anthony, shortly after it passed the Legislature.
Barry Scheck, the co-founder of the Innocence Project, points out that California is the only state in the nation that does not have any sanction for prosecutors.
In an editorial, Assemblymember Ammiano wrote, “Even AB 885 would be more lenient than what others have.”
He added, “It’s this simple: Brown vetoed a bill that would have helped keep innocent people out of prison.”
The Vanguard’s Fourth Annual Dinner and Award Ceremony will focus on Prosecutorial Misconduct on November 15 (for more details click here).
—David M. Greenwald reporting
““A court has now completely exonerated him, but that exoneration has come 20 years too late. We need this bill to stop the few prosecutors whose zeal for convictions lead them to cut corners on justice. We can’t wait decades to free the innocent while the true perpetrators run free. ”
I do not believe that it takes any special knowledge of our legal system to realize that not having any deterrent to a prosecutor to withhold evidence that does not support his case, while at the same time providing for building a judicial or political career based largely on how many cases he has won, willl prove too great a temptation for some.
Although some hate analogies, I can’t resist one from my profession. Surgeons who operate quickly are highly valued since OR time is very expensive.
So I have a patient whose symptoms might be being caused by one of her ovaries. At the time of surgery, I find that one of her ovaries is readily accessible and can be removed easily even though from its appearance it might be normal, while the other will be because of its location very difficult to remove and will take more time. So I remove the readily accessible ovary leaving the culprit behind. The patient continues to suffer while I move up the career ladder because I just don’t bother to fully disclose my surgical findings while dictating my note. Would any of you believe this is ok ? Would any of you not believe that I should be sanctioned in some manner ? Would you be seeking me out for your surgery ?
“I do not believe that it takes any special knowledge of our legal system to realize that not having any deterrent to a prosecutor to withhold evidence that does not support his case, while at the same time providing for building a judicial or political career based largely on how many cases he has won, willl prove too great a temptation for some.”
Would you also agree that if a defense lawyer has evidence that is a deterrent to his defendant’s case that they should also have to divulge that information?
There are rules of discovery that require the defense to turn over evidence just as the prosecution is required to under Brady.
Then what’s the problem? It’s all about getting to the truth isn’t it? We can’t just point the finger at prosecuters when defense lawyers are guilty of the same practices.
I didn’t say that, what I said was they were bound by certain discovery laws, I made no statement as to whether defense lawyers are guilty of the same practices.
I was more referring to Tia Will’s initial post about prosecutorial misconduct.
BP
I do not believe that we are able to generalize and say that the prosecutor should not be held to a certain standard because defense attorneys do it too. Each case should be judged individually and in my opinion the same penalties should apply to any attorney ( be they prosecution of defense) who knowingly withholds evidence or lies. The case in point happened to be about prosecutorial misconduct. I would apply exactly the same standards to the defense.
Discovery obligations are not entirely reciprocal. Both sides must disclose, e.g., evidence to be used at trial; but, the prosecution has the responsibility to disclose all relevant evidence obtained as part of the investigation of the offense, including exculpatory evidence. The defendant need not disclose information harmful to his or her case. The burden of proof is on the prosecution. It’s the prosecution’s improper withholding of such relevant and expulpatory evidence that is most diffiicult to detect and that has the greatest potential for harm–to the integrity of the process and the defendant’s right to a fair trial.
very good post
And so it is clear that the defendant currently benefits from preference in evidence disclosure rules.
So then why the need for this?
It seems that some people cannot stop rooting for the defendants while being hostile to law enforcement and prosecution.
Personally, I don’t root for the defendants or the prosecution. I root for upholding the principles of constitutional due process and the right of the accused to a fair trial. The need is because such prosecutorial misconduct can result in the wrongful deprivation of an individual’s liberty.
But when we go so far don’t we supplant the right of the accused to a fair trial with advantage to escape righteous justice?
If you compare the resources available to prosecutors with those available to the vast majority of criminal defendants and defense attorneys, I’m not sure how you can say the defense is at an advantage. However, depriving someone of personal liberty is supposed to be difficult. This is why the accused is presumed innocent and the prosecution must meet the most stringent legal standard of proof (beyond a reasonble doubt) to obtain a conviction. And defendants shouldn’t have to assist prosecutors in proving their case; the burden of proof is on the prosecution.
BP
Of course I would. Our legal system is supposed to be about discovery of the truth and ensuring justice. When we have two sides pitted against each other with each having incentives tied to “winning ” rather than how much their activities have contributed to a just outcome, the focus will inevitably be tilted towards getting the “win”. My belief in full disclosure applies to both sides as I have stated multiple times in my suggestion that both sides receive all of the evidence at the same time.
Would we have access to that sort of information concerning a surgeon? Most of us get referred by a GP and have no knowledge of a surgeons ranking.
DavisBurns
I am well aware of that and feel that it is a failing of our medical system. What I recommend in this circumstance is that any one contemplating non urgent surgery proceed in the following manner.
Talk to the surgeon openly about any questions you may have.
Questions that I would encourage be asked.
1. Where did you train to do this procedure. About how many cases did you do in residency ? If the procedure is a very
common one such as cesarean for an ob/gyn or hernia repair or gall bladder removal for a general surgeon, the answer should be “too numerous to count”.
2. How many of these surgeries do you do a year ? This will depend upon the type of surgery. Very common procedures should probably be in the vicinity of at least two to three monthly but could be much more.
3. Do you do the surgery alone, or will you have an assistant ( many procedures should be done by the surgeon alone, others will require an assistant) the reason you are asking is so that you do not get hit with a surprise bill if an assistant is called in who is not covered by your insurance.
4. How many significant complications have you had doing this procedure. How common is a major complication with this type of surgery.
5. What is your process if a complication does occur at the time of surgery ?
IF your doctor spontaneously addresses all of these points prior to your having to ask, you are more likely to be in good hands than if the surgeon acts defensive or is reluctant to provide information.
Over the years, I have seen a trend to more and more openness and full disclosure in the surgical specialties and hope this trend will continue.
Oops !
I forgot something that I consider very important. I would ask your primary care provider what they know about the surgeon. They should be very forthcoming whether they know the surgeon well and equally forth coming if they do not. Also, if there is any doubt in your mind, I recommend a second opinion. I have yet to be insulted or feel in any less trusted or supported if a patient asks for one I will always happily request one, and if when I was still operating, I sensed any hesitation on the patient’s part, I suggested a referral for a second opinion. Sometimes that patient stayed with the second surgeon, sometimes they came back to me. That is as it should be since part of an optimal patient/doctor team is trust.
Tia, thank you for the questions to ask.
As an FYI, here’s what the bill provided:
SECTION 1.
Section 1127j is added to the Penal Code, to read:
1127j. (a) In any criminal trial or proceeding in which the court determines that the prosecuting attorney has intentionally or knowingly failed to disclose specified materials and information required under current law, including Section 1054.1, except subdivision (a) of that section, and Brady v. Maryland (1963) 373 U.S. 83, the court may instruct the jury that the intentional or knowing failure to disclose the materials and information occurred and that the jury shall consider the intentional or knowing failure to disclose in determining whether reasonable doubt of the defendant’s guilt exists.
(b) Nothing in this section shall be construed to limit any other remedy available under law.
And here’s the Governor’s veto message:
I am returning Assembly Bill 885 without my signature. AB 885 would allow a court to instruct the jury to consider intentional or knowing prosecutorial discovery violations in determining whether reasonable doubt exists in a criminal case. Prosecutorial misconduct should never be tolerated. This bill, however, would be a sharp departure from current practice that looks to the judiciary to decide how juries should be instructed. Under current law, judges have an array of remedies at their disposal if a discovery violation comes to light during trial. Sincerely, Edmund G. Brown Jr.
“…the court should not decide that the evidence, if exculpatory, would actually require that the person be released from prison.”
Currently, how long does it take for someone wrongly convicted to be released once they have evidence that proves they are not guilty? Why shouldn’t they be released when the evidence is presented to the judge?
could take years. sometimes the prosecution refuses to drop the case.
DavisBurns
Hopefully you will never need them.