Calif. court overrules governor on prisoner parole

It's always safer to err on the side of predicting high risk. You can never be proven wrong. If a prisoner is released, he can go out and commit a new crime that can come back to haunt the judge, parole board, or elected official who approved release. If he is not released, he has no way to prove that he would not have committed that next crime.

Nowhere is that defensive posture more in evidence than in California. Former Gov. Gray Davis had a reputation for blocking the release of every convicted murderer that the state's parole board approved for release. That was a spectacular record, considering that the parole board only grants parole to the most stellar success stories - 5% of the cases it hears, and even less than that for murderers.

Gov. Arnold Schwarzenegger has largely mimicked his predecessor, vetoing about three-fourths of such paroles. But, in the latest example of a recent trend, a state appeals court has overruled the governor's veto. The case involves Curtis Lee, who spent 22 years in prison for abetting a murder. He was 18 when his friend shot another young man to death on an Oakland street. Convicted of second-degree murder and sentenced to 17-years-to-life in prison, Lee became a model prisoner, undergoing extensive job training and therapy.

Today's San Francisco Chronicle has the story. The court ruling is here.

Canada: How false confessions occur

Yesterday's Toronto Star, in the latest in a series of excellent articles on criminal justice issues, features an analysis of false confessions. The article, "Pressure of interrogation imperils even the innocent" by Tim Moore, discusses how police bias toward guilt and resultant high-pressure interrogation techniques can coerce innocent people to confess:

The recent [Canadian] Supreme Court decision in R v Singh, in which the court upheld the conviction of a man who confessed after police continued to question him despite his repeated assertions of his right to remain silent, has attracted renewed attention to the protection that the right to silence is supposed to afford….

There is a substantial body of research on the psychology of confessions. We now know that depending on how they are interrogated, actual innocence may put innocent people at risk. Police cautions are imperfectly understood in the first place, especially by young people or adults with cognitive impairments.

Some innocent suspects waive their right to silence because they perceive innocence to be protective and believe that their blamelessness will soon be self-evident. Unrealistically, they anticipate they will be able to explain to investigators the error of their ways. Regrettably, the ensuing interrogation risks eliciting a false confession from an innocent person, possibly contributing to a false conviction.

The article continues here.

Expert witness controversy spreads

Wrongfully convicted woman can sue expert

Last week, I reported on the brewing controversy in England over unfettered reliance on expert witnesses. Now, the Toronto Star has an article focusing on the controversy in Canada, as well as elsewhere in the world.

It's a fascinating look at some of the high-profile cases that have led to the current attitude of skepticism toward expert scientific and medical witnesses.

As the article explains, the adversarial system is premised on an equal fight between
the accused and the government. Yet the criminally accused typically do not have the funds or expertise to obtain their own experts to challenge the government's expert witnesses, who often wear sterling credentials.

In reaction to a series of convictions based in large part on the testimony of a government pathologist, Canada has reformed its civil laws to allow people to sue an overzealous expert over his findings. The case was brought by Louise Reynolds against forensic pathologist Dr. Charles Smith, whose testimony led to her conviction in the death of her 7-year-old daughter. It later turned out that the girl was mauled to death by a dog. (See my previous blog post on the judicial inquiry into Dr. Smith's expert findings.)

Such tort law is "a first for the common-law world," according to the Star.

Tasers face growing opposition

U.N. Committee calls it "torture"

In the wake of the deaths of six people in just one week and a videotaped incident at an airport in Canada in which a man died after being tased, calls for the restriction or ban of shock-inducing tasers are becoming increasingly urgent.

On Friday, the controversy grew when a United Nations Committee Against Torture called taser use a form of torture. The comment was embedded in a larger report on the committee’s activities, and focused on the use of tasers in Portugal.

Although public criticism focuses on taser use by police, much more out of sight the weapons are widely used as weapons of control in U.S. prisons and juvenile detention facilities. Such widespread tasering of prisoners is documented in the BBC documentary, "Torture: America's Brutal Prisons."

A CBS news report is online here. An Amnesty International report on taser use is here.

Death penalty: Theory vs. practice

Newsweek magazine has an interesting summary of the state of capital punishment in the United States today. The remarkable disconnect between theory and practice seems like another example of today's cultural schizophrenia. Consider these two competing facts:

• Popular support for capital punishment remains fairly strong, at about 65%.

• Front-line decision makers - judges, juries, and even prosecutors - are less and less willing to impose the ultimate punishment.

The reasons for this disconnect? The Newsweek writers pose a few possibilities, including highly publicized cases of wrongful conviction, increased attention to "mitigating circumstances" (such as child abuse) by the defense, and the skyrocketing legal costs of prosecuting death cases.

A new breed of prosecutor is another factor. As an example, Newsweek gives us Craig Watkins, the District Attorney of Dallas, Texas, the hang-'em-high state. Watkins is African American, a Democrat, and a former defense attorney. "In the near future, we will see the death penalty rarely," Watkins said. An even starker example not mentioned in the Newsweek article is Kamala Harris, the District Attorney of San Francisco, who has taken a public position against the death penalty.

For these and possibly other reasons, "what is acceptable in theory seems less and less tolerable in practice," the Newsweek authors comment. The article, entitled "Injection of Reflection," is online here.

Although it isn't mentioned in the Newsweek article, an intense debate is currently underway about whether capital punishment deters crime. The issue has resurfaced thanks to a series of research studies by economists, suggesting that the death penalty may deter crime. Other scholars, most of them non-economists, are highly critical of the studies. Adam Liptak of the New York Times summarized the competing positions in a Nov. 18 article.

Georgia court overturns sex offender law

I haven't found time yet to read or analyze yesterday's ruling on sex offender laws, but this overturning of residency restrictions looked important enough to immediately pass along to my readers. The full opinion in Mann vs. the Georgia Department of Corrections is here; Greg Bluestein of the Associated Press reports on it as follows:

ATLANTA (AP) - Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate.

"It is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being rejected,'' read the opinion, written by presiding Justice Carol Hunstein.

The law had been targeted by civil rights groups who argued it would render vast residential areas off-limits to Georgia's roughly 11,000 registered sex offenders and could backfire by encouraging offenders to stop reporting their whereabouts to authorities.

State lawmakers adopted the law in 2006, calling it crucial to protecting the state's most vulnerable population: children.

While many states and municipalities bar sex offenders from living near schools, Georgia's law, which took effect last year, prohibited them from living, working or loitering within 1,000 feet of just about anywhere children gather - schools, churches, parks, gyms, swimming pools or one of the state's 150,000 school bus stops.

It also led to challenges from groups like the Southern Center for Human Rights, which argued that it would force some offenders to live in their cars or set up tents or trailers in the woods, and undermine other efforts to keep track of offenders.

The Georgia Supreme Court ruling said even sex offenders who comply with the law "face the possibility of being repeatedly uprooted and forced to abandon homes."

It also said the statute looms over every location that a sex offender chooses to call home and notes while the case in question particularly involves a day care center, "next time it could be a playground, a school bus stop, a skating rink or a church.'"