Wednesday, June 3, 2015

The Rights of Freedom

Busy watching the current end to many legislative sessions which include of course Texas and their new gun carry laws only furthering the insanity when it comes to guns. My favorite was a young woman interviewed on Al Jazeera who cited the Constitution and of course the rape statistics (more convoluted than factual) and that she is packing for protection. Charming young woman.

The boogeyman fear is what fuels this notion that if everyone is packing heat then the likelihood of a maniac shooting people up will mean of course he wouldn't knowing that everyone could shoot him down or that fewer would die. I want to point out in the few cases of mass shootings it was Teachers and a Student who talked them down and that in many cases these maniacs want to die in a mass event. And we still have gun crazy cops who seem to have no problem taking down people without weapons so we know they are trained and ready when necessary. So a real shoot out bring it!

And then I have been busy reading Grits for Breakfast and the Marshall Project and their coverage on the Junk Science legislation. that will enable anyone convicted of a crime where the testimony of the "expert du jour" has been discounted as junk. That pretty much cuts a wide swath. My favorite so far is the expert who comprised the amicus brief in support of Oklahoma's death penalty with information gleaned from Okay then.

But the issue is truly more than just junk science it is about no national accreditation nor certification, no federal agency or body that governs and determines the validity of the science and the experts credentials. And of course the labs and their obligation as agents of the states to "find" guilt versus innocence or in fact inconclusive evidence.

And the reality is that even when good science is available the Police rarely use and in turn investigate. And again we turn to Texas and the infamous case of Michael Morton which led to the Michael Morton act also in Texas.

And then there is the matter of if you are least released then what? Not always does it mean you are exonerated. Again in Texas the couple convicted of the bullshit satanic cult case where the evidence was largely odd stories told in elaborate details by children and a medical doctor who now admits that he was not trained sufficiently to concur that the physical evidence was in fact sexual abuse. But hey the Judge believed something was up so he freed them conditionally.

On that once again they are registered sex offenders when in reality the Prosecutors, Social Workers, Police and the Adults in these children lives who implanted this shit in their heads are the offenders. As working with children they are very much sponges and there is little to believe to the nth degree the detail and consistent tale when asked repeatedly. Kids cannot keep that up unless they are well trained, afraid and encouraged. And we know from adults who have undergone trauma the memories are easily convoluted and impaired so why anyone would expect a 5 year old to be the super witness is absurd.

And this brings me to the below article from the Marshall Project about the lives of those free from sex offenses of which they did not commit. Today is a highly charged environment with regards to sex offenses mostly associated with college campuses. I have written about that before and I have only one comment, Colleges are not systems of justice and should not be engaged, involved or adjudicating any type of criminal behavior. Then much of this would not be an issue and part of a distressing column by Radley Balko in the WaPo with regards to "high profile" rape cases falling apart. Uh the subtitle should be on College campuses that are the subject of media attention. Note that once again the media seems to deign one crime over another more substantive and important thereby classifying other victims less important as I have shared with regards to the other deaths at the hands of police - the homeless man in LA, the mentally ill man in Florida, the young boy in LA, and on and on. And the other rape trials such as the one at Vanderbilt which was found accidentally on a camera and went to public trial. Or the boys in Steubenville high school that also ended with guilty verdicts and then we could discuss the book Missoula and it explains why they fall apart in favor of the perpetrator despite strong evidence. Mr. Balko has some tendency to demonstrate his bias as a journalist, as a man and libertarian. We all have it and we all can't be perfect balanced scales as the symbol of justice supposedly demonstrates.

And on that note it is why I try to acknowledge the insanity of the sex offender registry. It serves what purpose? To shame, denigrate and humiliate for life. If we can't take a life for a crime committed lets make one pay for life for any crime.

When read this story you see why it becomes another hurdle and costly for all involved to the individual to the state. As I wrote yesterday that imprisoning people for court fees/fines ends up costing more to the state then we have a problem. And this is just one more example.

We have the rights to freedom even those who have been incarcerated guilty or not and we seem to think that regardless you deserve none of that.


Out of Prison, Out of Luck
When the test of innocence is withheld.
By Christie Thompson
The Marshall Project

Dion Harrell was released from New Jersey state prison nearly two decades ago, but he still maintains that he was not the man who raped a 17-year-old on her way home from work in 1988. Three days after the assault, the victim saw Harrell in the parking lot of the McDonald’s where she worked and called the cops. Police arrested him, and she told police he was the stranger who had attacked her that night. Based largely on the victim’s identification, Harrell was convicted of second degree sexual assault in 1992 and given eight years in prison. He was paroled after serving four, but he is sentenced to remain on the sex offender registry and under community supervision for the rest of his life.

In November 2014, the Innocence Project petitioned the Superior Court of New Jersey in Monmouth County to analyze the contents of the rape kit again, using DNA technology that was unavailable at the time of Harrell’s trial. But Monmouth County Prosecutor Christopher Gramiccioni initially refused. Under the New Jersey statute, only those who are currently in prison have access to DNA testing. “Defendant’s sexual assault conviction is 22 years old,” Gramiccioni wrote in January. “The State believes the conviction is entitled to finality.”

Thirteen other states have similar laws, declaring that only those still serving time are eligible for post-conviction testing. But cases like Harrell’s have spurred defense attorneys and some state lawmakers to call for a change in policy, claiming that the consequences of a wrongful conviction continue long after a prisoner is set free. In late April, Montana signed a new law extending DNA testing to those already released. State legislators in New Jersey, Rhode Island, and Oregon are considering similar measures.

“Because [Harrell] has been released from prison he no longer has the right to demand testing of evidence that might clear his name – and possibly identify the true perpetrator,” said New Jersey state Assemblyman Declan O’Scanlon, one of the bill’s co-sponsors, in a statement. “That is an awful contradiction that our laws present to prosecutors.”

In states with such “incarceration requirements,” it is not impossible for someone already released to obtain DNA testing, but it is far more difficult. Prosecutors can always choose to grant tests; but in states like New Jersey, they can also refuse on the grounds that an already freed offender is ineligible.

In February, Monmouth County Prosecutor Gramiccioni changed his mind and ultimately agreed to test the sperm sample in Harrell’s case, after local media attention and an appeal by Harrell’s lawyers. “While Dion Harrell was released from prison more than a decade ago and is no longer serving a term of imprisonment, it is nonetheless in the interest of justice to consent to Mr. Harrell's motion for post-conviction DNA testing due to the unique facts and circumstances of his particular conviction,” prosecutor Gramiccioni said in a statement. The Monmouth County Prosecutor’s Office did not respond to a request for comment. Test results are pending.

Those in favor of changing the law say offenders released from prison need to be explicitly granted the right to request a new DNA test. “[The law] has to be clear...You cannot just rely on the goodwill of prosecutors,” said Innocence Project senior staff attorney Vanessa Potkin, who is representing Harrell. “The people who really need DNA testing to prove innocence are people convicted in the 70s, 80s, and early 90s, before the current DNA technology existed.”

Some prosecutors disagree with the proposed change and say that expanding access to testing will overburden the courts. In a testimony before the Oregon state legislature, district attorney Rod Underhill said that the current law was a “reasonable limitation.” In Oregon, only those convicted of aggravated murder or a sex crime may currently request DNA testing after getting out of prison. “The proposed expansion...creates a net result of significantly greater expense, more significant time demands and also represents an unjustified assault upon conviction finality,” he wrote.

In many states, the defendants themselves must pay for DNA testing unless they are indigent. Roughly 42 percent of the post-conviction DNA tests requested by the Innocence Project confirmed guilt, 43 percent proved the defendant’s innocence, and 15 percent were inconclusive.

The only physical evidence used to convict Harrell in 1992 was the blood type of the semen recovered after the attack, which matched his own. But it also matched the victim’s — information that was not presented to the jury in the original trial. The two kinds of DNA analysis that could identify a perpetrator in the case became available in New Jersey in 1999 and 2006, years after Harrell was released from prison.

Harrell wrote to the Innocence Project in 2002. But because of their backlog (they are currently evaluating 6,000 to 8,000 cases), it was more than a decade before attorneys took on his claim. While he waited, Harrell’s lawyer, Potkin, said he struggled to find a job because of his conviction and was temporarily homeless. He is now unemployed. Harrell’s attorneys said he was unavailable for comment because of his pending case.

Of the Innocence Project’s current 244 cases, 12 involve people who are no longer in prison. And across the country, only 23 people have been exonerated by DNA testing after their release. “We’re really talking about a small universe of people, but it’s an important group that deserves the opportunity to clear their name,” said Rebecca Brown, policy director for the Innocence Project. It is particularly important, she said, for those on the sex offender registry.

Ted Bradford was exonerated of rape and burglary based on DNA evidence in 2010, five years after he was released from prison. Because he was convicted in Washington State — which does not require someone to be in prison to access DNA testing — he was still able to prove his innocence after he completed his sentence.

Bradford said he did not know about the Innocence Project’s Northwest Clinic until five years into his 10-year sentence. Even after they took on his case in 2002, it took until 2007 for them to identify available evidence and complete multiple rounds of advanced testing. While there was no physical evidence presented at Bradford’s initial trial, lawyers ultimately discovered sweat cells on a mask worn by the attacker that were not Bradford’s.

In prison, Bradford maintained his innocence and refused to participate in sex offender therapy. That meant he was released as a level 3 sex offender, the most restrictive tier. Flyers with his name and conviction were posted at every school and daycare center in his hometown of Yakima, Wash., including the schools where his two children were enrolled. The local newspaper ran several stories about the convicted rapist returning to the neighborhood.

“If it wasn’t for my ability to get the testing done after my release... I would still have to register as a sex offender, I would still have to report my address, I would still have this conviction on my record,” Bradford said. “The nightmare would have continued.”

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