Garner GJ Appeal Expedited

45 Monroe Place, Brooklyn, NY
NYS Appellate Division for the Second Department

The New York Appellate Division has agreed to expedite the appeal from a lower court's decision rejecting the request to unseal grand jury records in the Eric Garner case. Various parties, including the Legal Aid Society, New York Civil Liberties Union, NAACP and New York City Public Advocate Letitia James, had sought a court order to force Staten Island District Attorney Daniel Donovan to unseal and publish grand jury transcripts and exhibits relating to the inquiry into the death of Eric Garner following NYPD Officer David Pantoleo's deadly use of a choke hold. 

Ultimately, and not too surprisingly, particularly given the Staten Island venue, the GJ declined to indict Pantoleo. Given the widely held belief in the legal community that a GJ's decision not to indict in cases such as these is usually the result of a rigged or deliberately flawed presentation (see, People v. Ham Sandwich), the demand to inspect the GJ records was to be expected. The court's initial ruling against the petitioning parties was but the first salvo.

Under the expedited schedule, the opening briefs are due by May 5. Donovan's opposing brief is due by May 26, and any reply briefs by June 2.  Presumably oral argument and a subsequent written decision would follow shortly. Regardless of the outcome, it would not be surprising to see the case eventually land on the Court of Appeals' docket.

More to come, once the briefs are filed.

FBI Admits Decades of Flawed Evidence

According to the Washington Post, the government has admitted that, for years and years on end, every FBI examiner who testified in criminal trials over a twenty-years period prior to 2000 gave flawed testimony that favored the prosecution. It is a staggering admission.

The gist of the testimony concerned the use of hair follicle examinations to link suspects to forensic evidence, CSI-style. Apparently, despite the courts' universal acceptance that the offered testimony was sufficiently grounded in science as to be admissible, with the understanding that jurors would reflexively accept such testimony as true given its source, said evidence should not have been allowed into evidence. Meaning: large numbers of criminal convictions were obtained, at least in part, through the use of scientific evidence that was not, in actuality, as reliable as the testifying technician claimed it to be in order to persuade the courts to allow it into evidence.

Specifically, the Post states,

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far . .  . .The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison . . . 

To say this is perhaps the single largest forensic scandal in criminal prosecutions is probably an understatement. What this means is that for decades, the federal government affirmatively propagated junk science in order to obtain convictions, and that the courts, the supposed gatekeepers entrusted to ensure that scientific-based evidence is sufficiently reliable to be put before a jury, failed miserably at their task.

Marty Stroud, Glenn Ford, and the Machinery of Death

Photo by Douglas Collier/The Shreveport Times

The Shreveport Times recently published a written apology from former prosecutor Marty Stroud to Glenn Ford. Stroud's words are powerful and moving, and I urge you to read the piece.

Stroud had successfully obtained the death penalty for Ford in 1984 for a murder in Shreveport, Louisiana. Ford spent 33 years in prison, the vast majority of which was spent on death row, before he was exonerated. He may now be free, but justice has not been done, and time is running out.

Louisiana, much to Stroud's surprise, but probably nobody else's, has been staunchly resisting paying Ford any sort of compensation for the years he spent in their state penitentiaries. Sadly, Ford now has stage four lung cancer; a diagnosis that speaks for itself.

I won't bore you with the details of the wrongful conviction or how Ford was finally cleared, except to point out that Ford, a black man, was convicted by an all-white jury, and defended by attorneys who did not practice criminal law and had never tried a case before a jury. The remaining history can be found online or in this article in the Washington Post. The far more interesting part of this story is Stroud's open apology to Ford, which is bundled together with both express and implicit criticisms of our system of justice. The apology is set out, with a video of Stroud's commentary, in the Shreveport Times' article.