Vincent G. Rinn Law Library

Prosecutors Unwilling To Learn From Students ?

At the web site of the Medill Innocence Project mentioned in the previous posting, David Protess of the project states that "Prosecutors sought the death penalty -- execution by lethal injection.  Instead, Judge Richard Samuels sentenced Anthony to natural life in prison. His appeals were denied by the Illinois Court of Appeals and the Illinois Supreme Court." He goes on to say in his conclusion, "In sum, the actual perpetrators were widely known at the time of the crime, yet law enforcement officials arrested, prosecuted and sought the death penalty for an innocent teenager who happened to be near the crime scene because he was being chased and needed their help."

Prosecutors are given the power to decide which criminal cases to prosecute to convict those guilty of serious offenses in our communities. Implied in this power is the expectation that they will not misuse this power by prosecuting those who may actually be innocent and therefore allowing a guilty party to continue to endanger the community. It is especially important in cases where capital punishment is sought. Mistakes or purposeful abuses of the legal process cannot be remedied when the defendant is dead. It may also be very difficult to uncover wrong doing when the case is closed by death.

Here in Illinois we have the exceptional lessons from the events that lead former Governor Ryan to imposed a historic moratorium on executions in Illinois and to pardon four prisoners awaiting execution, due to compelling evidence uncovered that in too many cases the wrong person was in jail while the true perpetrators had a "stay-out-of-jail card" courtesy of the malfeasance of law enforcement personnel, including prosecutors.

The Report of The Governor‘S Commission On Capital Punishment, George H. Ryan Governor, APRIL. 15, 2002, states that :

"State’s attorneys in Lake. DuPage and Cook Counties have advised the Commission that they already utilize the concept of a review committee within their respective offices to assist the  State’s attoney in screening cases which are potentially eligible for the death penalty. It is a good idea to constitute such an internal review conmitttee to provide a thorough analysis of whether a particular case warrants the death penalty. Written state-wide protocols for prosecutors would provide voluntary guidance for all prosecutors in the state with respect to how such an evaluation may best be conducted. For example, in making a decision about whether to pursue the death penalty, an individual prosecutor should consider not only whether the case meets the basic requirements to be death eligible under the statute, but should also consider the  degree to which the  evidence is sufficient to warrant such a serious penalty."
( Chapter 5, p.83 )

If such procedures are already recognized best practices to be followed in regards to prosecuting a capital case, why doesn't State's Attorney Alvarez  make use of the information that the students have so carefully discovered to correct what appears to be significant departures from these standards ? Rather than attempting to violate the student's  privacy in the guise of checking their information. They have already provided and  publicly posted what is needed for that.

State's Attorney Seeks Multitude of Documents from NU Innocence Project

The Innocence Project at Northwestern University helped to uncover evidence that they claim proves the innocence of a Harvey, Illinois, man who is accused of killing a security guard in 1978.  The Cook County state's attorney in turn has subpoenaed the student's grades, notes, witness interview recordings, the class syllabus, and student emails sent to each other and Professor David Protess at the University's journalism school.  The University has turned over some documents but is fighting the further request for grades, grading criteria, student evaluations, expenses generated during the investigation, unpublished student memos, and interviews not conducted on the record.  The state's attorney's office says it is seeking truth.  I suppose that depends on who is on trial.  In this case it seems as if it is the student activists.  There is a chill in the air and not all of it is coming from Lake Michigan.  More in the Chicago Tribune.  [MG]

( This posting is cross-posted from the Law Librarian Blog by permission from the author Mark Giangrande of our library staff)

Also see :

Chicago Tribune editorial re. actions of State Attorney's Office

Chronology of investigation by Northwestern University Medill Journalism students and Center on Wrongful Convictions at the law school’s Bluhm Legal Clinic from their web site.

Professor Bassiouni Quoted Regarding Goldstone Gaza Conflict Report

This past Friday The U.N. Human Rights Council voted  to endorse a Gaza war crimes report that calls on Israel and Hamas to carry out credible investigations into alleged abuses. If viable domestic investigations do not eventually take place, the U.N. Security Council could refer both matters to the International Criminal Court (ICC) for possible prosecutions. ( See : Resolution - Human Rights Council ,The human rights situation in the Occupied Palestinian,Territory, including East Jerusalem .   Human Rights In Palestine And Other, Occupied Arab Territories, Report of the United Nations Fact Finding Mission on the Gaza Conflict, Executive Summary.)

"The United Nations Fact Finding Mission on the Gaza Conflict, led by Justice Richard Goldstone, was tasked by the Council “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”

"The report of the Mission, presented to the Council’s twelfth session, concluded that, while the Israeli Government sought to portray its operations as a response to rocket attacks in the exercise of its right to self defense, the Israeli plan had been directed, at least in part, at the people of Gaza as a whole. The report also found that Palestinian armed groups had succeeded in causing terror within Israel’s civilian population through the launch of thousands of rockets and mortars into Israel since April 2001."

"It recommended that the Security Council require the Government of Israel to take all appropriate steps, within a period of three months, to launch appropriate investigations that were independent and in conformity with international standards; and with regard to the relevant Palestinian authorities, that it require the independent committee of experts to monitor and report on any domestic legal or other proceedings undertaken by the relevant authorities in the Gaza Strip."

( Source : Human Rights Council Endorses Recommendations, Of Fact-finding Mission  Led By Justice Goldstone  And  Calls  For Their Implementation ) 16 October 2009 )

In an AP story today,Professor Bassiouni of the DePaull University Law School and a driving forces behind the creation of the International Criminal Court, stated that"If it sends the report to the Security Council, to the Secretary-General and to the General Assembly, it is sending it not for general informational purposes but for action,". The author further describes Bassiouni's observation that, "Arab and African countries will likely point to any U.S. efforts to block referral to the international court as an example of double standards, since it was Western countries that referred Sudan's President Omar al-Bashir to the International Criminal Court in March for alleged crimes against humanity and war crimes".

( Source : UN rights council endorses Gaza war crimes report, By Frank Jordans )

It is very uncertain whether the national parties involved will undertake internal proceedings to investigate and possibly prosecute the war crimes alleged in the Goldstone Report. Even more uncertain, is whether these cases would ever be referred to the ICC by the UN Security Council, given some members of the Council would likely exercise their veto over such a decision.

Mr. Goldstone at a recent press conference, puts forward a slightly more hopeful expectation. "In the end, the mission had decided to give full recognition to the concept of complementarity. It had been recognized by the Rome Statute that the first choice in an incident was domestic investigation.  It was only where such domestic activity was not possible that the International Criminal Court could accept jurisdiction. While the mission was critical of both sides for having done far too little in that regard, it had concluded that, although there might be unwillingness, there was ability.   Israel was clearly able to hold open, transparent investigations.  In Gaza, courts and lawyers were operating, and if there was a will, investigations could be held."

(Source :  Press Conference On Report Of United Nations Fact-finding Mission On Gaza Conflict )

Professor Tuerkheimer's Article Argues "Shaken Baby Syndrome" Based on Shaky Science

A congressionally mandated report to investigate forensic techniques and personnel, released in February 2009, unexpectedly questioned the presumption  of scientific validity for most of the traditional techniques used as evidence in the criminal courtroom. The report entitled "Strengthening Forensic Science in the United States: A Path Forward", found that, "The simple reality is that the interpretation of  forensic evidence is not always based on scientific studies to determine its validity." "...there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods."

The treatment of this kind of evidence in the courts has not provided a check on the introduction of the results of such questionable techniques.As the report states, "Federal appellate courts have not with any consistency or clarity imposed standards ensuring the application of scientifically valid reasoning and reliable methodology in criminal cases involving Daubert questions."

The report examined and commented on a variety of forensic criminal techniques but not on the medically related forensic evaluation called "Shaken baby syndrome" (SBS). As reported in the article "A Shake to the System" by Radley Balko,  DePaul Professor Tuerkenheimer's recent law review article,"The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts", extends this critical re-evaluation to SBS as a medical diagnosis and criminal evidence.

The first part of the article looks at the changing medical opinion regarding SBS, stating  that "Despite its lingering presence in the popular imagination, the scientific underpinnings of SBS have crumbled over the past decade [FN 65] as the medical establishment has deliberately discarded a diagnosis defined by shaking."[FN 66] The second half of the article,examines several facets of SBS in the legal system from investigation to post-conviction.

In her conclusion she asks how well our legal system will deal with the apparent deficiencies and their impact on the question of the innocence of many convicted under the previous paradigm."To date, our system has failed. In place of adaptation, we have seen massive institutional inertia. Once the SBS prosecution paradigm became entrenched, the crime became reified. Deferential review standards and a quest for finality perpetuated the system‘s course. How expeditiously, and how deliberately, this course is righted will inform the meaning of justice"

Illinois Law to Allow Challenges to Burge Torture Confessions & Convictions

A previous blog posting from last year, "Feds Catch Up With Burge - Indictment by US Attorney Patrick Fitzgerald", reported that decades after the events of police torture by Chicago Police Commander Burge and his officers, some measure of legal accountability was being enforced.

That was a positive if long overdue development. However, many of the those convicted with the evidence from confessions extracted under torture, are still in prison with their administrative appeals exhausted. Fulfilling the demands of justice should also involve providing a way for these prisoners to have their cases re-examined in the light of the accumulated evidence of gross police misconduct and the use of suspect confessions in their trials.

With the the sponsorship of state Sen. Kwame Raoul a bill was drafted by Atty. Standish Willis on behalf of Black People Against Police Torture, and signed into law by Governor Pat Quinn. The Illinois Torture Inquiry and Relief Act calls for the appointment of an 8 member commission empowered to review cases of prisoners alleging being tortured to confess under Burge. The commission will be able to  issue subpoenas or other process to compel the attendance of witnesses and the production of evidence..." "If 5 or more of the 8 voting members of the Commission conclude by a preponderance of the evidence that there is sufficient evidence of torture to merit judicial review, the case shall be referred to the Chief Judge of the Circuit Court of Cook County..."

For their part, the petitioners must "...waives his or her procedural safeguards and privileges including but not limited to the right against self-incrimination under the United States Constitution and the Constitution of the State of Illinois,agrees to cooperate with the Commission, and agrees to provide full disclosure regarding Inquiry requirements of the Commission."

While supporters see this law as a needed measure to help bring justice to the victims of police torture under Burge, critics tend to portray it as a "law targeting the law enforcement community" that could lead to negative unintended consequences. They claim that there are adequate "federal and state laws in place to protect against coerced or forced confessions and the fact that the appeals process is in place to re-address allegations of torture induced confessions."

However, after decades of accumulating evidence and legal processes,many of the prisoners have not had their sentences nor convictions re-examined. Portraying the law as targeting police rather than defending the rights of arrestees, may be rooted in the near impunity that some law enforcement personnel presume they have in these situations.Any attempt to hold them accountable for violations of the law and the rights of citizens is viewed as an unwarranted restriction on their conduct.

People with such attitudes are a risk not only to people on the street but also to their fellow officers who intend to follow the law and actually "serve and protect". As our own Professor Andrea Lyon has said, "I think good police officers are sick of getting slammed by the actions of people that are misbehaving”, “Hiding evidence, planting evidence, torturing and threatening people, suborning perjury, that doesn't make anyone feel very safe.”

ABA Meeting - Former Attorneys General On Investigation of Interrogations

On Friday July 31, at the recently concluded ABA annual meeting in Chicago, there was a special session with six former Attorneys General.  They were asked about current Attorney General Holder’s consideration of an investigation into the interrogation practices in the aftermath of 9/11. The moderator  asked  what factors should he be considering and weighing as he makes that decision. The former  officials  included Edwin Meese III, Dick Thornburgh, William P. Barr, John Ashcroft, Michael Mukasey and Benjamin Civiletti.

Most of the responses sounded like apologies for the questionable policies and conduct that have been brought  to  light during and after the two Bush administrations.  While the issues involve serious questions  of  official  torture , the writ of Habeas corpus, Adherence to Geneva Conventions,  Mr. Ashcroft found a way to make light of torture, implying it couldn’t really be defined. Mr. Thornburg brought  out the  time-worn  argument  that a potential cataclysmic event , justifies any means. Mr. Barr seem to have a refinement if this position. He says the practices in question should not be considered to be in a criminal arena but rather as  part of a war. So again the  threats  of  war,  justify  violations of our laws and rights.  He also says that torture is a vague  term  that makes it difficult to determine reasonable force.  Although the Uniform Code of Military Justice  has  been  clear enough to be  used by our soldiers actually engaged in war.

 Several of the participants, including some of the above, did raise  what many observers would consider a valid point. Potential prosecution for the legal opinions provided by legal officials could seriously chill the ability of such official to provide the necessary spectrum of legal advice to elected officials. Mr. Meesse  says to do so would set a dangerous precedent. Also, many of the Bush era legal opinions have been rescinded or changed by the Obama administration. So Mr. Civilatti argues that remedial actions have already been taken and there  is no need  for  investigations.

Even though Mr. Ashcroft made light of torture, he does concede that for those who went beyond the Bush administration expanded legal boundaries, an  investigation  may be appropriate. He also points out the tension that occurs among the branches of government in a war environment. He observes that the powers of  the  President  vis-a-vis  the Congress and the Courts, tend to blur under such circumstances  and the courts have usually deferred to the President.

Mr. Mukasey makes the comment that Congress would be a better vehicle for conducting an investigation rather than the Attorney General. While not disregarding the legal option, his comment does point out that there are several other avenues available to follow up on the alleged wrongs which does not have the limitations and liabilities that criminal investigations and proceedings might have.

Additional methods identified in an AP article, that may be useful  for this process, can include:

Congressional review – “A closed-door review by the Senate Intelligence Committee chaired by Sen. Dianne Feinstein is under way. The Senate Armed Services Committee already produced a 263-page report, concluding that policies leading to detainee abuse originated at the highest levels of the U.S. government.”

Disbarment/ impeachment/ firing -  “disbarring both attorneys and perhaps even charges of  legal malpractice that could cost them their jobs and serve as a warning to future government lawyers.”

Truth commission - “commission would offer a middle ground with more power to get to the truth than a hearing without the divisive sting of criminal prosecution."

As citizens, along with our representatives, we should fight for the disclosure of the torture files that are still secret, advocate for the victims of unlawful policies, determine accountability and ensure that the abuses are not repeated.

Keep Up With ABA Meeting On NLJ Blog

The American Bar Association Annual Meeting begins today in Chicago. See previous blog posting, here. Various news media will be covering it. But to get some of the inside developments including some that may not make the morning paper or the evening news, check out the national Law Journal's blog of the ABA meeting,  "ABA 2009/Chicago"  by Lynne Marek. Lynne has been news reporter since 1992, working for the Chicago Tribune,Bloomberg News, The National Law Journal and is now blogging for the first time to bring you coverage of the ABA meeting.

Federal Courts Try to Deal With Dead Links In Opinions

Most of us who use the internet for research find ourselves providing links to online materials to backup a quote or lead our readers to additional information. But as we well know, the passage of time, even a brief one, can  lead to some of those links becoming inoperative. For  many  reasons , online resources can come and go, move elsewhere or be altered, from  the moment we located them.  Judges confront this situation too.

An article in the July 2009 issue of  “The Third Branch”, quotes Judicial Conference Secretary, Jim Duff, “Judges are citing to and using Internet-based information in their opinions with increasing frequency,”. When a judge’s legal opinions have citations to internet  materials , their potential inaccessibility becomes a serious problem. Since attorneys cite opinions to support their legal arguments, missing citations and information from an opinion can seriously undermine its usefulness and maybe even its value.

The Judicial Conference has developed a series of “suggested practices” to attempt to deal with this somewhat pernicious problem. They recommend capturing and preserving the web pages cited in an opinion which would then be added as attachment to the opinion that had cited them. The article indicated that the recommendation came after a pilot study conducted by an ad-hoc working group of circuit librarians. Judges will retain the ability to decide which citations to preserve. “The attachment, like the opinion, would be retrievable on a non-fee basis through the Public Access to Court Electronic Records system.”

There is no mention of any intellectual property considerations that may impede the copying and saving of the online content. Since the judiciary is a branch of government carrying out its mandated function, it may not need permission to do this. This may be analogous to the situation of congressional  hearings that often include reproductions of copyrighted works along with the congressional testimony. However, this is in the print versions of the hearings. When the online version is produced, the copyrighted content is usually absent.

We will have to wait and see whether this may become a stumbling block for this seemingly elegant solution to the vanishing links problem in federal court opinions.

New Illinois Rules of Professional Conduct In Effect In 2010

“A new legal thriller is about to be published that every lawyer in Illinois should read. It has elements of intrigue, disputes over money, conflict, and sex and it will definitely have something of interest for every lawyer. It is called The Illinois Rules of Professional Conduct.”  With these facetious words, Alberto Bernabe ,Professor of Law, The John Marshall Law School, begins his law journal article, "Coming Soon to a Law Practice Near You: The New (and Improved?) Illinois Rules of  Professional Conduct".
(39 Loy. U. Chi. L.J. 691 2007-2008 )

A recent article in the National Law Journal, "Illinois revises code of conduct for lawyers" by Lynne Marek, 7/02/09, reports that  this “legal thriller” has been finally approved by the Illinois Supreme Court and its provisions will become effective for Illinois lawyers on January 1, 2010.

Since the 1980s most states have replaced their own professional conduct codes with a version of the ABA Model Rules. According to professor Bernade, the process in Illinois has moved through several iterations over several years.

“Illinois began the revision process in 1999 when the Illinois State Bar Association (“ISBA”) appointed a special committee to monitor the work of the ABA’s Ethics 2000 Commission and to consider recommendations for changes in the Illinois rules. In 2002, this committee became a joint committee of the ISBA and the Chicago Bar Association (“CBA”) which issued a final report with recommendations for changes in 2003. After considering comments on the report, the Joint Committee issued a new report in 2004, and submitted it to the Illinois Supreme Court Committee on Professional Responsibility, which reviewed it and issued its own report in which it agreed with most, but not all, of the recommendations of the Joint Committee.”  [ finalized in Jan. 2007 ]

According to the NLJ article, the version approved this year has gotten the input from lawyers, judges and law professors. The new rules make significant changes to the old Illinois rules in areas such as :

• adoption of Comments as well as the rules
• clarifying the relationship between the Rules of Disciplne and Civil Liability for malpractice
• expanding permissible disclosure of confidential information
• how lawyers should respond to inadvertently received documents
• prohibition of sex with  clients

The latter issue might be the only potentially “thrilling” part of the new Code. Unless one also includes the “thrill” of being brought up before the ARDC ( Attorney Registration & Disciplinary Commission ) or a court, for violations of its rules.

American Bar Association Units Re-examine Law School Accreditation

While the American Bar Association annual meeting in Chicago is about a month away, the ABA Center for Professional Responsibility just recently finished its 35th National Conference on Professional Responsibility (May 27-30) in our town. While several issues were on the agenda, one may be of particular interest to our readers.

The ABA Section of Legal Education has begun a comprehensive review of the ABA law school accreditation standards. Members of the Accreditation Standards Review Committee  discussed the committee’s approach and some of the hot button issues and sought input from the attendees, as to possible improvements in the standards.

A recent article in the ABA Journal, "Sweeping Accreditation Review May Prompt ‘Sea Change’ in Law School Evals", By James Podgers, Jun 3, 2009,  reports on some of the discussion that took place at the meeting :

“The most significant change in the Standards for Approval of Law Schools is likely to be a move away from evaluating law schools on the basis of criteria that measure “input”—such things as faculty size, budget and physical plant. Instead, the Legal Education Section would evaluate law schools more heavily on the basis of “outcome” measures.”

“Other key issues the Standards Review Committee will look at include “security of position” for law school professors and other teachers, which will encompass the tenure structure. The committee also will consider ways to make the law school accreditation and review process more transparent.”

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The Section of Legal Education & Admission to the Bar of the ABA which has the responsibility for the accreditation of law schools has relevant reports that have been produced within the last few years that present different positions on some of these “hot button” issues. Here are three that may be of interest to our readers:

REPORT OF SPECIAL COMMITTEE ON SECURITY OF POSITION, 5/5/08

ALDA - American Law Deans Association Security of Position comment, July 21, 2008

Special Committee on Security of Position, July 21, 2008