Tuesday, August 23, 2011

It's Time for Pennsylvania to Get Moving Against Wrongful Convictions

The Pennsylvania Law Weekly
August 23, 2011

In November 2006, Sen. Stewart J. Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, sponsored a resolution passed by the Pennsylvania Senate that created an Advisory Committee on Wrongful Conviction. Senate Resolution 381 directed that the joint state government committee, which is responsible for performing research for both houses and both parties of the General Assembly, establish the advisory committee.

The Senate resolution provided that the advisory committee on wrongful conviction shall, "Study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future innocent persons will be wrongfully convicted."

The resolution further directed the committee to, "review cases in which an innocent person was wrongfully convicted and subsequently exonerated, review any other relevant materials, identify the most common causes of wrongful convictions." Finally the committee must "consider potential implementation plans, cost implications, including possible savings, and the impact on the criminal justice system for each potential solution."

Nearly five years have passed without the committee issuing a report. Greenleaf's office has said it will be released next month. Meanwhile, several other states have been leading the charge in implementing means of evaluating possible wrongful convictions.

North Carolina is leading the way in government sponsored post-conviction review of innocence claims. In 2006, North Carolina established the Innocence Inquiry Commission, a state agency that investigates and evaluates post-conviction claims of factual innocence. The commission is made up of eight members selected by the chief justice of the North Carolina Supreme Court and the chief judge of the North Carolina Court of Appeals. The members include a Superior Court judge, a prosecuting attorney, a defense attorney, a victim advocate, a member of the public and two discretionary members.

The North Carolina commission has received 850 claims, conducted three hearings and issued one exoneration order.

Until recently, innocence claims were pursued by privately funded organizations.

According to USA Today , in Texas, state leaders are awaiting a commission study on the effects of innocence-related laws on eyewitness identification, the videotaping of interrogations and post-conviction DNA testing. In Florida, a commission created to examine the causes of wrongful convictions delivered a report to the state Supreme Court calling for police to follow state-issued guidelines on photo and live suspect lineups. USA Today , citing the Innocence Project, reported that five states in addition to Pennsylvania — California, Connecticut, Illinois, New York and Wisconsin — have established commissions to study the causes of wrongful convictions and make recommendations to lawmakers, police and the courts.

The state's advisory committee on wrongful conviction consists of judges, prosecutors, defense lawyers, law enforcement officers and victims' advocates. The project is chaired by John T. Rago, a Duquesne University law professor and director of the Cyril H. Wecht Institute of Forensic Science and Law, who, according to the Pittsburgh Post-Gazette , proposed the study to Greenleaf.

The advisory committee has yet to issue its findings. Originally it was reported that a final advisory committee report would be issued in late 2008. In June of 2009, the Pittsburgh Tribune-Review reported that, "The Senate-commissioned Committee on Wrongful Convictions is due to release a report by summer's end that could recommend changes in state law."

Summer came and went in 2009 without a report. At least one of the advisory committee's four subcommittees provided some public feedback. The science subcommittee made four recommendations. First, the science subcommittee called for a regulation mandating the preservation of biological evidence, as well as the creation of a forensic advisory board and implementation guidelines for lab accreditation and training.

In July 2010, the Innocence Project posted on its website: "With the upcoming release of a final report from Pennsylvania's Advisory Committee on Wrongful Convictions, the Pennsylvania Innocence Project is hopeful that Pennsylvania will join the growing number of states that require law enforcement officials to videotape all confessions from start to finish."

Obviously, the "upcoming release" of the report has not happened. However, videotaping confessions is indeed an issue that the advisory committee is considering. While a number of law enforcement agencies across the country have adopted some form of videotaping, Pennsylvania has not mandated videotaping of confessions by law enforcement agencies.

The purpose of videotaping is to ensure that confessions are free and voluntary and that the accused is not laboring under some defect that would render her confession involuntary. The subcommittee charged with evaluating this issue has sought public comment and the committee members are apparently hung up on when the videotaping should begin. Some members suggest that the videotape should not start rolling until the accused has been provided her Miranda rights, while others believe that the videotape should roll as soon as the interview begins.

Judging by the work in other states, the advisory committee should also address the use of informants and eyewitness misidentification. Professor Alexandra Natapoff recently wrote for Reason Magazine that a 2004 study by researchers at Northwestern University Law School found that "more than 45 percent of wrongful convictions in death penalty cases were due to false informant testimony; making snitches 'the leading cause of wrongful convictions in U.S. capital cases.'"

According to the Innocence Project, eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of all wrongful convictions.

Greenleaf's office said that the report is now scheduled for release on Sept. 16 to correspond with the fall legislative session. Only time will tell, as more than four years have passed since the advisory committee on wrongful convictions was established. At the time there were 198 DNA exonerations nationwide and nine in Pennsylvania. Today, according to the Innocence Project there are 273 DNA exonerations nationwide and 11 in Pennsylvania.

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