In Criminal Justice, A Life-And-Death Struggle To Get It Right

Susan Shelley

Columnist and member of the editorial board of the Southern California News Group, and the author of the book, “How Trump Won.”


Few sights are more chilling than an empty execution chamber, with its unbuckled straps, waiting.

The death penalty gets everybody’s attention.

The National Registry of Exonerations, a project of the University of Michigan Law School, says that since 1989, 115 wrongfully convicted people were sentenced to death and later cleared of the charges against them based on new evidence of innocence. Another 1,508 innocent people were cleared after serving years or decades of the type of prison sentence that doesn’t get much news coverage.

Those 1,623 wrongful convictions resulted from 540 cases of mistaken witness identification, 367 cases of misleading or false forensic evidence, 903 cases of perjury and/or false accusation, 750 cases of official misconduct, and 206 false confessions.

Not included in those statistics is Johnny Baca, convicted of murder-for-hire two decades ago after a jailhouse informant and a Riverside County prosecutor lied on the witness stand. In a recent U.S. Court of Appeals proceeding that has been viewed more than 26,000 times on YouTube, a three-judge panel of the Ninth Circuit demanded to know why no one has been prosecuted for perjury. Judge Alex Kozinski asked why California Attorney General Kamala Harris has not investigated the case, and what kind of message that sends.

Now, in an article for the Georgetown Law Journal, Judge Kozinski describes in footnoted detail the multitude of problems in our criminal justice system that have led to wrongful convictions. He cites the surprisingly high error rates in eyewitness identification, especially cross-racial, and in techniques for matching fingerprints, handwriting, hair samples, ballistics and voiceprints. Human memory has been proven to be less than 100 percent reliable and arson expertise before the 1990s was totally wrong.

False confessions have been prompted by “harsh interrogation tactics” as well as “emotional and financial exhaustion.” Prosecutors routinely pile on charges made possible by vague and overreaching laws, and too often they evade the requirement to give defense lawyers any evidence favorable to the defendant.

Kozinski — an appointee of President Ronald Reagan — has some suggestions. He would make it easier for defense lawyers to obtain the evidence they’re entitled to receive. He would give jurors more freedom to ask questions, discuss the case, see transcripts and determine the maximum sentence if they find the defendant guilty. He thinks jury deliberations and police interrogations should be recorded on video, and “rigorous” procedures should determine the reliability of expert witnesses, scientific evidence and eyewitness identification.

Kozinski would put “strict limits” on the use of jailhouse informants, the issue in Johnny Baca’s case and in the massive scandal just exposed in Orange County. Los Angeles County now requires approval by a committee before jailhouse informants may be used.

One of the judge’s recommended reforms is already under way in the office of L.A. County District Attorney Jackie Lacey. A new Conviction Review Unit will look into claims of innocence. No expensive court procedures are needed to start the process, just a simple letter to the DA’s office.

Other reforms floated by the judge include an end to judicial elections, because judges sometimes rule against defendants out of fear that prosecutors will recruit “one of their own” to run as a challenger in the next election. Kozinski also recommends two changes to federal law: He would limit prosecutorial immunity, and he would repeal a 1996 law that made it harder for federal courts to free an innocent person who has been the victim of a miscarriage of justice in a state court.

These problems and proposals deserve our immediate attention. There is no acceptable error rate in criminal justice. We have to get it right. Every time.

Originally published in the LA Daily News.

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