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New York can do more than adopt Texas’s discovery laws


What you’ll read today

  • Spotlight: New York can do more than adopt Texas’s discovery laws

  • Years after protests, NYPD retains photos of Black Lives Matter activists

  • Migrants endure brutal conditions at border encampments

  • Victory for police officers’ ‘blue code of silence’ in Laquan McDonald case

  • Letter to the editor: The legally mandated form of doxing

  • A first look at the governor’s proposal to legalize marijuana in New York

  • The FBI bets people’s lives on shaky photo analysis

In the Spotlight

New York can do more than adopt Texas’s discovery laws

This week, the New York Times ran an editorial urging New York to overhaul its draconian system that lets prosecutors withhold evidence from defendants until the eve or even day of trial. The system gives them “free rein to leave defendants in the dark about aspects of their cases for months or even years.” Prosecutors, the editorial board writes, “do not have a legal obligation to turn over in a timely fashion all police reports, witness names, DNA evidence, surveillance footage or anything else from their investigative files.” Defense attorneys say this “puts a ‘blindfold’ over the eyes of defense lawyers and their clients”––this Daily Appeal writer has lamented it for years––“and it runs up against Americans’ basic understanding of how fairness is meant to work in the legal system.” New York’s law leaves people accused of crimes with an impossible choice: plead guilty to a crime with little information about the evidence against them, or go to trial and risk even harsher punishment. Most other states, including Texas and North Carolina, have made changes that level the playing field by granting open and early disclosure of evidence. [The New York Times]

It turns out that Texas is surprisingly progressive on various criminal justice issues. As the Daily Appeal has pointed out, Texas has made good policies from bad mistakes. Laws named after sympathetic victims are often the worst form of knee-jerk legislation, leading to exceedingly harsh punishments and overcriminalization. [Ted Frank / Los Angeles Times] In Texas, however, several laws named for victims of state misconduct have put Texas on the forefront of various criminal justice reform efforts, including eyewitness identification and junk science.

In 1985, when she was a Texas Tech University sophomore, Michele Mallin was raped at knifepoint by a stranger. During the hours-long encounter, she tried to study and memorize the man’s features, so that she could identify him later. When the police showed her photographs to identify the attacker, she identified Timothy Cole immediately, and with confidence. But she was wrong. Despite the lack of physical evidence, the jury believed Mallin, and Cole was sentenced to 25 years in prison. [Paul Kix / New Yorker] The real rapist waited for the statute of limitations to run out and then sent a series of confessional letters to the court and prosecutors, only to be ignored. Finally, he sent one to Cole himself, but it was too late: Cole had died in prison. Cole’s mother received the confession and took up the case; DNA testing later cleared Cole. [Wade Goodwyn / NPR]

Texas police departments now use double-blind and sequential lineups, which have been shown to reduce mistaken identifications with little or no reduction in accurate identifications. A lawyer with the Innocence Project of Texas said, “In terms of conducting eyewitness identification, Texas is doing better than any state in the Union.” [Paul Kix / New Yorker] New York and other states have refused to adopt either double-blind or sequential lineups, despite overwhelming evidence that the procedures help identify the right person, which, in theory, is what lawmakers and law enforcement wants.

Another reform to come out of Tim Cole’s ordeal was a bill known as the “junk science” statute. The first of its kind in the nation, it permits a defendant to bring a writ of habeas corpus in cases where new scientific evidence has come to light, or where the scientific evidence used to convict has been shown to be false, misleading, or inaccurately applied. The law has already prevented an innocent man’s execution. The president of the nonprofit National Center for Reason and Justice said, “I’m just stunned, [because] I never thought there would be a time in my life when Texas would be a beacon of legal progress.” [Linda Rodriguez McRobbie / The Atlantic]

The New York Times titled its editorial about discovery reform “How to Make New York as Progressive on Criminal Justice as Texas.” New York would, without a doubt, benefit tremendously from these and other changes. It would become fairer and safer. But those who have experience with the criminal system in Texas caution that legislative reforms are necessary, but in no way sufficient. The Daily Appeal spoke to Trudy Strassburger, senior legal counsel at The Justice Collaborative, who previously served as deputy director of the Capital Area Private Defender Service, in Texas. “The scientific writ statute is pretty amazing,” she said. “The language of the statute is amazing, but those writs rarely get filed because indigent defense is so underfunded here.” In general, the criminal court of appeals in Texas is “pretty horrendous,” and when cases on scientific writs come up for appeal, the judges have interpreted the law very narrowly.

The situation is similar for discovery practices: “Even with great discovery rules, the lawyers say, ‘I’m not getting paid to sit for 20 hours and watch dash cam video,’” Strassburger says. “They’re paid a flat fee so they have every incentive in the world to finish the case as soon as possible.” And the judges rely on the prosecutors, she adds, to tell them how to interpret the law. The prosecutors claim it only applies to discovery after a case has been indicted, which is not what the law says, but judges have sided with prosecutors. For the most part, Texas lacks a culture of rigorous and zealous defense. In many parts of New York, however, such a culture does exist, and, in those places, we can expect Texas-like reforms to really make a difference.

Stories From The Appeal

 

Black Lives Matter activists rally in front of Trump Tower on Jan. 14, 2017, in New York City.
[Kevin Hagen/Getty Images]

Years After Protests, NYPD Retains Photos of Black Lives Matter Activists. The records raise questions about the department’s compliance with its protest monitoring rules. [George Joseph]

Migrants Endure Brutal Conditions at Border Encampments. As they wait for permission to cross into the U.S., migrants, including children and infants, sleep on concrete and under plastic tarps, exposing them to cold, wind, rain, and illness. [Debbie Nathan]

Stories From Around the Country

Victory for police officers’ ‘blue code of silence’ in Laquan McDonald case: “In a staunch and unequivocal defense of how Chicago police handled Laquan McDonald’s murder, a Cook County judge acquitted three officers Thursday of charges alleging they conspired to justify the shooting by falsifying reports and claiming the teen was the aggressor,” writes The Chicago Tribune. “At every point in her hourlong ruling, Associate Judge Domenica Stephenson endorsed the actions of the police on the night McDonald was shot by Officer Jason Van Dyke [and] said it would be wrong to second-guess the actions of the police—including Van Dyke, who is scheduled to be sentenced Friday” for second-degree murder. The judge, a former prosecutor, disregarded the testimony of a Chicago police officer who said her statements about the shooting were falsified, for which she faced retribution from colleagues. “That blue code of silence isn’t just with the Chicago Police Department,” said activist William Calloway, who is running for city alderman. “It expands to the judicial system.” [Megan Crepeau, Christy Gutowski, Jason Meisner, and Stacy St. Clair / Chicago Tribune]

Letter to the editor: The legally mandated form of doxing: The 1/15/19 edition of the Daily Appeal, “The ethics of doxing and the politics of public shame,” covered many aspects of doxing, but did not mention the popular and legally mandated form of doxing: sex offender registries. More than 900,000 people, including children and youth, are listed on sex offender registries in the United States. Their names, addresses, workplaces and other details are usually easily available on public websites and apps. The dangers of this form of doxing have been documented by Human Rights Watch, the Justice Policy Institute and others. Registries—and their arcane requirements—expose the people on them and their families to unemployment, reincarceration, homelessness and unstable housing, vigilante attacks, harassment, threats, and even death. Families have been forced to move, young people on registries and children of people on registries have been harassed, isolated, and bullied at school. Criminal and juvenile justice reform advocates need to understand registries—legal doxing—as harsh, ineffective responses to harm. Liane Rozzell, Senior Policy Associate / The Annie E. Casey Foundation (This letter represents the personal opinion of the author.)

A first look at the governor’s proposal to legalize marijuana in New York: The Buffalo News has published an explainer about Andrew Cuomo’s plan to legalize adult recreational marijuana use. Among its insights, the article notes that Cuomo’s legal basis for the plan is that legalization is “necessary to properly regulate and control” marijuana production and sale for the purposes of public health and “social equality.” The plan calls for creating an agency called the Office of Cannabis Management “to limit, or not to limit” the number of licenses, regulate potency, and even halt cultivation and sales in the case of a public emergency. The plan would allow counties and cities to opt out, and not permit cultivation or retail sale facilities. Cuomo projects the state will, after a few years, make $300 million a year from three taxes on the marijuana supply chain. Assembly Majority Leader Crystal Peoples-Stokes, a sponsor of the Assembly’s recreational marijuana legalization bill, is optimistic about the plan, but wants to see more specifics about, for example, steering some tax revenues to “communities devastated by mass incarceration.” [Tom Precious / Buffalo News]

The FBI bets people’s lives on shaky photo analysis: The FBI uses questionable image examination techniques, despite their lack of a strong scientific foundation, troubling many experts and raising questions “about the role of the FBI Laboratory as a standard-setter in forensic science.” Over the last five years, FBI examiners have tied defendants to crime pictures in thousands of cases “using unproven techniques, at times giving jurors baseless statistics to say the risk of error was vanishingly small,” writes Ryan Gabrielson. “Much of the legal foundation for the unit’s work is rooted in a 22-year-old comparison of bluejeans. Studies on several photo comparison techniques, conducted over the last decade by the FBI and outside scientists, have found they are not reliable.” ProPublica took an exhaustive look at this practice by searching court databases for cases mentioning the FBI’s image examiners and by consulting leading statisticians and forensic science experts to review methods that image examiners have detailed in court transcripts, published articles, and presentations. The results are disturbing. [Ryan Gabrielson / ProPublica]

Thanks for reading. We’ll see you Tuesday.

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