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Will the Most Controversial Rule of Evidence be Reformed?

Will the Most Controversial Rule of Evidence be Reformed?

To most, the Federal Rules of Evidence may seem esoteric. But how the rules draw evidentiary boundaries between admissible and inadmissible information matters quite a bit, both for litigants and for our justice system.

Federal Rule of Evidence 609 is a case in point.

Rule 609 allows attorneys to impeach criminal defendants (and other witnesses) with their convictions: to inform the jury, in other words, about these convictions for the asserted purpose of challenging the witness’s truthfulness. This form of impeachment has been called a “charade,” a “hoax,” “discriminatory and unfair,” and critics have urged its reform or abolition since its enactment in 1975. And yet, this rule has persisted, without significant alteration.

Change may be afoot. Timothy Rice, a Magistrate Judge from Philadelphia, published a law review article this year. He proposed that because of a change in societal understanding of crime, the amount of prior conviction impeachment that the federal system tolerates should be significantly reduced. He submitted the same idea to the Advisory Committee that evaluates potential changes to the Federal Rules of Evidence. The Committee is now considering the proposal.

The societal change that Judge Rice invokes is the restorative justice movement, which he describes as having a goal of “healing within the broader community impacted by crime.” The significant reduction that he proposes is that one of the two types of conviction currently admissible become inadmissible. The first category that is currently admissible consists of “crimina falsi” (roughly speaking, convictions relating to “dishonesty or false statement”); indeed, currently these must be admitted, no matter the prejudice that they inflict. Judge Rice would leave this category of impeachment material untouched. The second category consists of felony convictions (other than “crimina falsi”), which are currently admissible subject to judicial balancing. Judge Rice would abolish this category. How can one heal within the broader community, he asks, if one is dehumanized, stigmatized, punished a second time, and stereotyped as having a propensity to lie?

Judge Rice has done valuable work in prompting the Advisory Committee to address this issue. And with his focus on restorative justice he has accomplished the admirable feat of finding a new objection to prior conviction impeachment. It seemed there was little left to say once scholars had explored a whole range of other problems: the tension between this form of impeachment and the social science relating to truth telling; the racial and economic disparity in impact; the chilling of defendants from exercising their right to testify; the shaky embedded assumptions about the reliability and meaning of criminal convictions; the fact (explored in various empirical studies) that jurors reject the use of this evidence for its only permitted purpose, and embrace it for inflammatory and forbidden ones; and so on. Finally, in making the point that this practice involves the embedding of stereotypes into legal decision-making, his work hints at a gap between this area of the law and those in which efforts are being made to challenge stereotypes in legal decision-making. (See, for example, recent efforts to inform juries about implicit bias.)

However, it remains unclear how much Judge Rice’s restorative justice focus can achieve. First, in writing up the proposal for the Committee, the Reporter describes this as an “interesting” angle, but questions whether restorative justice is indeed as much of a movement as Judge Rice (who created a reentry program) might wish. If we really cared about restorative justice, for example, would we still permit felony-based disenfranchisement in 48 states? Second, restorative justice objections, like all of the other types of objection mentioned above, apply not only to the impeachment that Judge Rice would bar, but also to the “crimina falsi” impeachment that he would leave untouched. (And indeed the latter category of convictions has a claim to being the more problematic, in that they are mandatorily admissible.)

For those who have considered change to this rule but think that prohibiting the use of felony convictions is not enough, three states provide evidence that abolition can be feasible. Montana prohibits all forms of prior conviction impeachment (as regards all witnesses), and has done so for forty years. Hawaii and Kansas protect criminal defendants from prior conviction impeachment of all types (as long as they do not open the door to it), and have done so for decades.

The Reporter has promised that if the Committee wants to take this idea further, he will conduct research into the handful of states that reject impeachment with convictions that are not “dishonesty-based,” to see “how these rules are being applied and how practice is affected.” Since such states include those that have barred prior conviction impeachment altogether, for some or all witnesses, this is a valuable opportunity to consider not only restriction of this practice, but abolition.

Editor’s note: An earlier version of this article described Judge Rice as “persuading” the Advisory Committee to address this issue. At the request of the author, we have changed that sentence to note that Judge Rice “prompted” the Committee’s action.

Jay-Z, Meek Mill Friends to 21,000 Concert Fans: Vote for Judges, Prosecutors, and Councilmen Who Want CJ Reform

“We have the power to replace these people.”

Gustavo Caballero / Getty Images

Jay-Z, Meek Mill Friends to 21,000 Concert Fans: Vote for Judges, Prosecutors, and Councilmen Who Want CJ Reform

“We have the power to replace these people.”

Rap star and cultural icon Jay-Z paused for a moment during his concert on the evening of December 1 to deliver a plea for criminal justice reform. As spotlight-soaked mist rose around him, he leaned into his microphone to talk about police brutality, racial oppression, and, of course, his friend and fellow rap artist, Meek Mill — a Philadelphia native who was recently sentenced to up to four years in prison for a probation violation. “When you see a young man get on probation, get f — — — in the ass since he was 19 years old, that man is being stomped by the system,” he said. “It’s a human issue, a human issue. Not a black and white issue, a human issue.” The crowd was mostly quiet, a rare moment during the lively show, though a small choir of concertgoers called out: “Free Meek!”

Meek Mill’s recent sentence has ignited protests locally with reverberations felt across the country. Here, images of the rapper adorn the side of public busses, billboards, and posters hung on street corners with messages to free or stand with him. Jay-Z’s monologue to the 21,000 fans at Philadelphia’s Wells Fargo Center last Friday night continues his recent use of the bully pulpit to bring public attention to the case and to the larger issue of probation — an arm of the criminal justice system often overlooked in discussions about mass incarceration. Two weeks ago, he penned an Op-Ed for the New York Times. He wrote:

“On the surface, this may look like the story of yet another criminal rapper who didn’t smarten up and is back where he started. But consider this: Meek was around 19 when he was convicted on charges relating to drug and gun possession, and he served an eight-month sentence. Now he’s 30, so he has been on probation for basically his entire adult life. For about a decade, he’s been stalked by a system that considers the slightest infraction a justification for locking him back inside.”

About 4.7 million American adults — or one in 52 — are either on probation or parole. This is about twice as many as are incarcerated. The number of people on parole, as Mill was, tripled between 1980 and 2007 to about 826,000. In Philadelphia, about half of those held in the city’s woefully overcrowded jails are locked up because of probation violations.

During his short speech to the packed theater, Jay-Z also expressed support for the NFL players who refuse to sing the national anthem in protest of racial oppression. “Don’t let the press confuse you. This is not about a flag or something inanimate. That shit is about injustice, that shit is about people dying,” he said. He then called his African American fans to action. “Black people in particular, we got to get our shit together, we got to start working together. We come to the table because we ain’t no second-class citizens to anybody. We are the most beautiful, most intelligent people in the world.”

About 200 local criminal justice reform organizers, formerly incarcerated individuals, and loved ones of Meek Mill, were in the audience. They were brought together by the justice reform organizations #cut50 and Color of Change, as well as by Jay Z’s Shawn Carter Foundation and his label, Roc Nation.

Sixx King grew up with Meek Mill’s father, and has known the rap star since he was born. The film producer says he’s hopeful that the attention his friend’s case has garnered, bolstered by Jay-Z’s platform, will make a lasting impact. “The local and national politicians have relied on the ignorance of young people not knowing their political power. I think with Meek being incarcerated has awakened the masses, the youth,” he said. He believes that Meek’s case has served as a civics lesson to his fans. “The majority of people out there didn’t realize that judges were elected — they thought it was an appointment.” But the attention on Judge Genece Brinkley, who Mill’s supporters and his defense attorney believe set the harsh sentence out of a personal vendetta, changed that perception, in King’s view. “I think this puts politicians on notice that they can no longer use their elected office as a throne for tyranny,” he said. “Felons can vote. Young people can vote. We can vote people in and out of office who make this decision that impact our lives: Judges, prosecutors, congressmen, councilmen, governors, lieutenant governors. We have the power to replace these people.”

Philadelphia proved to be fertile ground for this type of mobilization when, one day after Mill was sentenced, voters elected a District Attorney who ran on a campaign to reduce incarceration. (The election was not swayed by Mill’s case — months of grassroots activism propelled the candidate.)

Over a decade ago, King himself spent a few months in jail — including two weeks triple-celled with Mill’s cousin, during which they were only allowed to leave for one hour a day — followed by seven years on probation for gun and drug charges. “It changes you. One night in prison changes you, for the worse,” he said.

Another longtime friend of Mill in attendance, Dawud Bey, told me that he’s glad that Jay-Z is grandstanding, but wishes the mogul would also focus on tangible ways to mend the plight of neighborhoods like the one where he and Mill grew up in North Philadelphia. There, job opportunities are limited and many have a criminal record. “I’d like him to infuse economic development in impoverished communities; to create jobs for guys who don’t have a chance, who can’t even get a bank loan to try and start their own business because of their record,” he said.

Bey’s sentiment highlights an inescapable inequity of the Free Meek Millmovement: millions of Americans face similar limitations imposed by the criminal justice system, but lack Mill’s fame. Further, some critics argue that Mill has been cavalier with the court over the years, believing himself to be above the law because of his celebrity status. The recent charge was his fifth probation violation; the others were mostly for traveling out of state without court approval and missing appointments with his parole officer.

But, King argues, the moment is bigger than Mill’s case. “There is always the question, ‘Why Meek?’ I say, ‘Why not?’ History has taught us we can’t judge or predict what the catalyst of change looks like,” he said. “Whatever we use as a catalyst of change to awaken masses of people, young people, to their political power is amazing. We’re going to rock the nation not only with music — we’re going to rock the nation with political activism; we’re going to rock the nation with appointing people who are not self-serving.”

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Discredited Shaken Baby Science Sent This Father to Jail for 15 Years. His Ordeal Could End This Week.

Discredited Shaken Baby Science Sent This Father to Jail for 15 Years. His Ordeal Could End This Week.

This story was written by Vince Beiser for The Chronicle of Social Change, a nonprofit news publication that covers issues affecting vulnerable children, youth and their families, and was co-run with Slate Magazine.

There was no doubt about the horror of the situation: a four-month-old baby girl was dead.

The question facing the jurors was less clear-cut: Was the tiny girl’s death accidental, or had she been murdered by her own father?

On the afternoon of November 24, 2001, in Sacramento, California, 18-year-old Zavion Johnson had called an ambulance. His baby daughter Nadia had been sleepy all day, and then had stopped breathing.

Responding paramedics gave her CPR, pushed a breathing tube down her throat, and rushed her to the hospital. There, doctors discovered Nadia had terrible internal head injuries, including a fractured skull. Suspecting abuse, they called the police.

Johnson would later tell his family that earlier that morning, he had accidentally dropped Nadia while showering with her. The girl had hit her head on the back of the cast-iron bathtub, but had seemed to recover. Questioned by police, the frightened teenager at first didn’t say anything about the accident. That impulse backfired horribly on him.

Nadia died two days later. On the day of her funeral, Johnson was arrested and charged with her murder.

At trial, Johnson’s lawyer told the court about the fall in the shower, and more than a dozen people testified that he was a gentle and loving father who had never mistreated the baby.

None of the prosecution’s witnesses said anything to the contrary. Instead, the deputy district attorney held up Johnson’s inconsistent statements as evidence of his guilt. The clincher, however, was the testimony of three medical experts, who all declared that the nature and pattern of Nadia’s injuries could not have been caused by a short fall, but only by violent shaking.

Zavion Johnson

“This is a classic case of Shaken Baby Syndrome,” Deputy District Attorney Chris Cosca told the jury. “We know that this little girl lost her life because of a brutally violent shaking, the violent acceleration-deceleration, the rotational injury, and the impact against a hard surface. That’s the only way it can be explained. And there is no way on earth that she suffered these injuries by virtue of a simple drop in the tub. No way.”

Johnson was convicted of second-degree murder and sentenced to 25 years to life. Sixteen years later, he is still in prison.

But it turns out Cosca was wrong.

In the past year, two of the key medical witnesses who supported the Shaken Baby diagnosis at Johnson’s trial have disavowed their testimony, and the district attorney’s office now supports Johnson’s attempt to have his conviction overturned. On Dec. 8, Johnson and his legal team are hoping to learn whether he’ll now be able to go home.

There used to something close to a medical consensus that certain patterns of injuries can only be caused by shaking. In particular, a so-called “triad” — swelling of the brain, bleeding on the brain’s surface and bleeding behind the retinas — was believed to be solid proof that a baby had been abused in this way. The theory was put forward in the early 1970s by doctors trying to explain the deaths of infants and children with no outward signs of abuse. The diagnosis soon became accepted as scientific fact, and has since been used to convict hundreds of people of harming or killing children.

But over the past 20 years, a body of new research has shown how diseases, genetic conditions and accidents — including short falls — can produce the same constellation of injuries. As a result, faith in “Shaken Baby Syndrome” is unraveling.

The American Academy of Pediatrics recommended in 2009 that doctors stop using the term. A 2015 investigation by the Washington Post found at least 16 Shaken Baby Syndrome murder convictions that have been overturned.

Scores of other cases that collapsed before trial, because of the doubts around the “triad” as evidence. One of those cases was another Sacramento County father, convicted of killing his four-month-old son.

Dr. Norman Guthkelch, a pediatric neurosurgeon who was one of the first to advance the hypothesis behind Shaken Baby Syndrome, recently stated that it is “high time every case of a parent in [prison] for this had his or her case reviewed” because “we went badly off the rails … on this matter.”

There is no definitive accounting of how many people are prosecuted and incarcerated on the basis of this questionable science, but the number is certainly substantial.

database maintained by the Northwestern University’s Medill Justice Project, last updated in 2015, includes more than 3,000 Shaken Baby Syndrome criminal cases in the United States over the past 20 years, though not all of them are still current. The Washington Post’s investigation estimated hundreds of parents and caregivers were being prosecuted each year, and tallied 1,600 convictions since 2001. At least three such convictions have landed people on death row, according to a recent New Scientist article.

The Innocence Network, a coalition of legal organizations that advocates for prisoners who are wrongfully convicted, is reviewing about 100 cases involving Shaken Baby Syndrome.

Some medical experts still support the use of the diagnosis, now more commonly called “abusive head trauma,” as at least one form of evidence that can help determine whether a child’s death was accidental or the result of violence. Nobody disputes that violently shaking a baby can injure or kill it; the tricky part is figuring out whether that actually happened. And once someone has been convicted of lethal child abuse, convincing a court to undertake that task again is not easy.

The collateral damage for mistaking an accident for maltreatment can extend beyond a jail term. Parents accused of contributing to a child’s death can face the removal of all children from the home.

2010 study published in the journal Child Abuse and Neglect notes that “little data are available about what happens to these siblings after the victim’s death.” Using records from Oklahoma’s child fatality review, the study concluded that the presence of young siblings, previous maltreatment reports and the nature of the fatal incident were predictors of removal after a death.

In an essay published in the in the American Academy of Pediatrics News, two physicians argued that the recent controversy over shaken baby syndrome should not take away from correctly diagnosing cases of child abuse.

“Like the back-and-forth over childhood immunizations, this is a false debate,” Howard Dubowitz and Errol Alden wrote in the 2015 piece. “The truth is that child abuse, including abusive head trauma, is a real problem that terribly injures and sometimes kills children.”

From his cell in a state prison in central California, Johnson struggled for years to get judges to take another look at his case, filing appeal after appeal, to no effect. Finally, in 2014, he got in touch with the Northern California Innocence Project, where attorney Paige Kaneb took the case.

“I’d been on another shaken baby case, so I’m a bit obsessed with the issue,” she said.

Over the next couple of years, she gathered materials and got in touch with the experts whose testimony had sent Johnson to prison. In early 2017, two of them came declared they could no longer stand behind that testimony.

“I was following my training and experience, in conjunction with the consensus opinions at the time, in classifying Nadia’s death as having resulted from abuse,” wrote Dr. Gregory Reiber, the forensic pathologist who performed Nadia’s autopsy, in a letter to the court. “However …because of the significant changes in the understanding of childhood head injury that have developed since trial, my opinion about the cause of Nadia’s injuries has also changed.”

Nadia’s injuries, he now concluded, “are consistent with the accidental fall in the bathtub described by Zavion Johnson.”

University of California at Davis neuropathologist Claudia Greco also walked back her testimony, writing that the damage she focused on “does not prove that Nadia Johnson was violently shaken or that her injuries were intentionally inflicted.” A third expert who didn’t testify at trial but reviewed the case later also stated that Nadia’s injuries could have been caused by the fall Johnson described.

Kaneb and her colleagues filed a petition to have his conviction struck down. On October 31, the district attorney’s office threw their support behind it.

“Our decision…was not a difficult one,” Chief Deputy District Attorney Steve Grippi wrote in an email. “Had the information currently available on the topic been available then, there is a reasonable probability that the outcome of the trial could have been different.”

That doesn’t mean Johnson goes free automatically; the DA could still ask for a retrial, though that seems unlikely. Johnson is now awaiting a judge’s order to let him go. After spending nearly half his life behind bars, he is hoping to be back with his family in time for Christmas.

Johnson is still in occasional touch with Nadia’s mother, but by now she has two other kids and a fiancée, Johnson told me via a letter from prison. He’s gotten training as an electrician while locked up, and wants to do community advocacy when he gets out.

“I’m excited and nervous, but scared of failing,” Johnson writes. “All the people that have helped me, I don’t want to disappoint anyone.”

He still thinks often about Nadia, whose picture he has tattooed on his chest.

“I can’t wait to visit her grave,” he writes. “I haven’t been able to do that yet.”

This article was updated to specify that the Innocence Network is reviewing about 100 cases involving Shaken Baby Syndrome, not the Innocence Project.
Vince Beiser is a full-time freelancer specializing in deeply reported articles on important issues around the world. He has reported from some thirty countries on assignments for Wired, Harper’s, The Atlantic, Rolling Stone, The New Republic, The Village Voice, Playboy, Mother Jones, The Los Angeles Times Magazine, Vice, The New York Times and many other publications.

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