WRONGFUL CONVICTIONS IN NEW ORLEANS CAUSES AND PREVENTION

WRONGFUL CONVICTIONS IN NEW ORLEANS: CAUSES AND PREVENTION By: Emily Maw, Director Innocence Project New Orleans

SECTIONS Background § What is a wrongful conviction / exoneration? § Comparison statistics Innocence Project New Orleans Causes of Wrongful Convictions § Evidence Based Causes § § Eyewitness Misidentifications Perjury False Confessions Forensic disciplines § System malfunction causes § Ineffective defense § Prosecutor misconduct / error How does New Orleans Prevent Wrongful Convictions?

Innocence Project New Orleans (IPNO) is a nonprofit law office representing innocent prisoners serving life sentences in Louisiana (and Mississippi), and assisting them with their transition into the free world upon their release. IPNO uses clients' cases to ask for changes in laws and policies that cause poor defendants to be wrongly convicted. We advocate for sensible criminal justice policies that reduce wrongful conviction. § Reforming evidence practices § Reducing incarceration § Increasing openness, accountability and access.

29 men freed or exonerated. 611 years in prison. All but one were young, Black men. All had trials where evidence rook All except two sentenced to All were completely one day or less. life without parole. innocent.

WHAT IS AN EXONERATION? The National Registry of Exonerations defines an exoneration as: Exoneration—A person has been exonerated if he or she was convicted of a crime and later was either: (1) declared to be factually innocent by a government official or agency with the authority to make that declaration; or (2) relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action. The official action may be: (i) a complete pardon by a governor or other competent authority, whether or not the pardon is designated as based on innocence; (ii) an acquittal of all charges factually related to the crime for which the person was originally convicted; or (iii) a dismissal of all charges related to the crime for which the person was originally convicted, by a court or by a prosecutor with the authority to enter that dismissal. The pardon, acquittal, or dismissal must have been the result, at least in part, of evidence of innocence that either (i) was not presented at the trial at which the person was convicted; or (ii) if the person pled guilty, was not known to the defendant, the defense attorney and the court at the time the plea was entered. The evidence of innocence need not be an explicit basis for the official action that exonerated the person.

EXONERATIONS IN THE UNITED STATES National Registry on Exonerations: § 2107 exonerations Since 1989 § ONLY 450 (21%) are DNA exonerations § 14 years, 4 months imprisoned) (average wrongly

LOUISIANA 49 exonerations since 1990 * 16 years (average wrongly imprisoned)

LOUISIANA EXONERATIONS BY PARISH Exonerations 2 2 2 3 22 11 Orleans Jefferson St. Tammany Caddo Terrebone Union

LOUISIANA

NEW ORLEANS

COMPARE CANADA Canada – population 35 million § 20 -30 wrongful convictions since 1986 § 11 Royal Commissions (several years of public testimony and hundreds of witnesses) § 11 reports (excluding cause-specific reports) Orleans Parish – population 391, 495 § 22 wrongful convictions since 1991. § No enquiries. No commissions. Louisiana – population 4. 68 million § 49 wrongful convictions since 1990 § No enquiries. No commissions.

INNOCENCE PROJECT NEW ORLEANS Founded 2001 § Budget $36, 000 § 1 ½ paid staff § Handful of innocence projects around U. S. 2017 § IPNO is 3 rd most successful innocence project in world § (exonerations, independence, stability) § $1, 100, 000 budget, 13 paid staff

IPNO FUNDING 2001 -2017 Grants Other Grants Government Donors

CAUSES: GENERAL

EVIDENCE CAUSES: BY CRIME

EVIDENCE CAUSES: MISTAKEN EYEWITNESSES RAPES AND ROBBERIES (72% and 83%) BUT NOT LEADING CAUSE OF WRONGFUL CONVICTIONS § MISTAKES V. LIES Q. A. WHAT DOES A MISTAKEN WITNESS LOOK LIKE? EXACTLY THE SAME AS A WITNESS WHO IS NOT MISTAKEN. ORLEANS PARISH CASE EXAMPLES: Kia Stewart (2005 -2015), Robert Jones (1992 -2017), Darrin Hill (1994 -2014).

KIA STEWART 10 YEARS WRONGLY IMPRISONED (2005 – 2015) EVIDENCE CAUSE: MISTAKEN EYEWITNESS LAWYER CAUSE: INADEQUATE DEFENSE INVESTIGATION, PROSECUTION WITH ONE EYEWITNESS, JUDGE ACQUIESCENCE

WHY DO WITNESSES MAKE MISTAKES? 1 THINGS NO-ONE CAN CONTROL (ESTIMATOR VARIABLES) Cross racial identification, stress, weapon focus, duration, lighting, etc. NOT SO INNOCENT THINGS POLICE DO (SYSTEM VARIABLES): Handcuffed shows ups “We have the suspect” Obvious feedback: “Well done, you identified the correct suspect. ” Overt suggestion: “Are you sure this guy is not familiar? ”

WHY DO WITNESSES MAKE MISTAKES? 2 INNOCENT THINGS POLICE DO (SYSTEM VARIABLES): Non-blind Simultaneous No instructions Small FEEDBACK (“Good job” “Thank you”) THIS IS WHERE MISTAKES ARE CAUSED AND NOT DETECTED

MISTAKEN EYEWITNESSES: ONCE YOU PICK THE WRONG PERSON….

EYEWITNESSES: WHAT HAVE WE DONE? “[I]t is incumbent on courts and law enforcement personnel to treat eyewitness memory just as carefully as they would other forms of trace evidence, like DNA, bloodstains, or fingerprints, the evidentiary value of which can be impaired or destroyed by contamination. ” State v. Lawson, 291 P. 3 d 673 (Or. 2012). LOUISIANA No experts (State v. Young, 35 So. 3 d 1042 La. 2010) No jury instructions (State v. Lee, 2016) No corroboration rule No requirement police follow best practices § Compare NOPD consent decree requiring best practices

EVIDENCE CAUSES: LIARS LYING IS THE LEADING CAUSE OF WRONGUL CONVICTION (67% HOMICIDES, 55% OVERALL) § § § § § PEOPLE SEEKING REWARD SNITCHES REAL PERPETRATORS ACCESSORIES PEOPLE UNDER SUSPICION EXES RIVALS POLICE CO-DEFENDANTS

TERRENCE MEYERS, LARRY DELMORE, GLENN DAVIS 16 YEARS WRONGLY IMPRISONED (1992 – 2008) EVIDENCE CAUSE: LYING EYEWITNESS LAWYER CAUSE: WITHHOLDING BRADY EVIDENCE, INEFFECTIVE AND CONFLICTED ASSISTANCE OF COUNSEL

EVIDENCE CAUSES: FALSE CONFESSIONS 21% of wrongful murder convictions Why do people falsely confess? § § § They’re They’re young a person with intellectual disability a person with a mental illness a person with an addiction vulnerable exhausted

REGINALD ADAMS 34 YEARS WRONGLY IMPRISONED (1980 – 2014) EVIDENCE CAUSE: FALSE CONFESSION LAWYER CAUSE: DELIBERATE BRADY VIOLATION AND POLICE PERJURY

EVIDENCE CAUSES: FORENSICS

“IMPROPER OR INVALID FORENSIC EVIDENCE? ” The use of forensic disciplines or techniques that have not been tested to establish their validity and reliability. Testimony about forensic evidence that: § presents inaccurate statistics, § gives statements of probability or frequency in the absence of valid empirical data, § interprets non-probative evidence as inculpatory, or § concludes/ suggests that evidence is uniquely connected to the defendant without empirical data to support such testimony. Misconduct, either by fabricating inculpatory data or failing to disclose exculpatory data.

ORLEANS PARISH Historically, standard investigation: tip, 6 -pack and arrest Highest wrongful conviction rate in country 16/22 exonerations eyewitness ID 18/22 official misconduct 18/22 wrongful convictions could have been avoided with proper defense investigaiton.

THE ROLE OF POLICE IN GUARANTEEING ACCURATE CONVICTIONS: By: Em ily Maw, Di rector, Kia Hayes , Staff Attorney, Innocence Proj ect New Orleans, and NOPD Sgt. D avid Barnes

WHAT? 3 -hour, interactive class for detectives on preventing wrongful convictions Good police work Causes of wrongful conviction and police measures that can prevent

CONTENTS OF CLASS 1. INTRODUCTION § Who are we? What is a wrongful conviction? Why should you care? 2. CAUSES OF WRONGFUL CONVICTIONS § Eyewitnesses, false accusations, confessions, faulty forensics § Pressures and attitudes that lead to sloppy police work 3. HOW TO AVOID PITFALLS AND BE THE BEST DETECTIVE 4. CASE STUDY 5. CONCLUSION

CAUSES IN DETAIL 1. 2. 3. 4. 5. Mistaken Eyewitnesses Lying Witnesses False Confessions / Admissions False / Misleading Forensics Attitudes/pressures that cause bias, tunnel vision and brief investigations. 6. Other system causes

A FIRST Course created with extensive input from law enforcement and experts Taught by two IPNO staffers and one NOPD sergeant First of its kind in the country

WHO RECEIVES IT? 250 NOPD detectives to date § Veteran detectives (in-service training) § New detectives (mandatory new detectives training) All assignments and districts Plans to expand

WHEN & WHERE? Began Planning in late 2015 / early 2016 First training May 2016 (new detectives) Eleven since NOPD Training Academy at UNO

WHY DO THIS? EXTENSIVE NEGATIVE EFFECTS 1. 2. 3. 4. Real perpetrator goes unpunished – not protecting anyone. Wrongful convictions make it harder to solve crimes and make job more dangerous § People don’t cooperate with police if they don’t trust them to get it right = no witnesses for the next case. § People who don’t trust police are hostile to police = danger. Victims get no justice (and pain of their crime increased if the case comes back and they realize someone wrongly convicted) – not serving anyone. Financial

HOW DO WE TEACH? § 3 -hour class includes § Presentation and explanation of causes and statistics § Exercises (id a perpetrator from line up, memory, cognitive bias and confirmation bias demonstrations) § Quick quizzes § Examination / discussion of example case

EXAMPLES

HOW TO AVOID THE PITFALLS: AND BE THE BEST DETECTIVE

HOW TO AVOID THE PITFALLS - 1 POLICE ARE THE FRONT LINE DEFENSE AGAINST INNOCENT CITIZENS GOING TO PRISON FIRST EYEWITNESS IDENTIFICATION EVIDENCE IS NOT YOUR ONLY INVESTIGATION TOOL. IT IS THE LEAST RELIABLE KIND OF EVIDENCE. § MAKE SURE YOU EXHAUST ALL INVESTIGATIVE OPTIONS AND INVESTIGATE ALL LEADS – PREFERABLY BEFORE YOU DO AN ID. § IN THE UNLIKELY EVENT THAT YOU HAVE NOTHING TO CORROBORATE THE EYEWITNESS TESTIMONY, EXPLORE ALL RELIABILITY ISSUES WITHOUT REGARD TO WHERE THEY MAY LEAD.

CAUSES: LAWYERS

CAUSES: DEFENSE LAWYERS OVER 50% OF LOUISIANA WRONGFUL CONVICTONS HAPPENED AT TRIALS WHERE THE ACCUSED RETAINED THEIR OWN LAWYER.

DEFENSE LAWYERS: WHAT ARE WE DOING? RYAN COMMISSION (ILLINOIS, 2002). § Most important thing we can do to prevent injustice is provide full and robust defense funding.

CAUSES: PROSECUTORS “Connick suggested that the bar examination ensures that new attorneys will know what Brady demands. Research indicates, however, that from 1980 to the present, Brady questions have not accounted for even 10% of the total points in the criminal One can qualify for admission to the profession with no showing of even passing knowledge of criminal law and procedure. ” law and procedure section…. Connick v. Thompson, 131 S. Ct. 1350, 1385 -86 (2011) (Ginsburg, J. , dissenting).

LOUISIANA EXONERATIONS INVOLVING BRADY CASES WHERE WE DON’T KNOW IF PROSECUTORS WITHHELD EVIDENCE CASES WHERE PROSECUTORS WITHHELD EVIDENCE

NUMBER OF PROSECUTORS DISCIPLINED BRADY EXONERATIONS IN LOUISIANA No prosecutor disciplined Prosecutor disciplined

ORLEANS EXONERATIONS INVOLVING BRADY Known State withholding Unknown if State withheld

THANK YOU! Emily Maw Director Innocence Project New Orleans 4051 Ulloa Street New Orleans, LA 70119 (504) 943 -1902 emilym@ip-no. org www. ip-no. org