{"id":5832,"date":"2014-05-14T14:56:33","date_gmt":"2014-05-14T22:56:33","guid":{"rendered":"http:\/\/www.fogcityjournal.com\/wordpress\/?p=5832"},"modified":"2020-04-11T19:28:47","modified_gmt":"2020-04-12T03:28:47","slug":"criminal-injustice","status":"publish","type":"post","link":"https:\/\/www.fogcityjournal.com\/wordpress\/5832\/criminal-injustice\/","title":{"rendered":"Criminal Injustice"},"content":{"rendered":"
\"San

San Francisco Public Defender Jeff Adachi makes introductory remarks to a packed audience attending the 11th annual Justice Summit held at the Civic Center library, 4\/23\/14. Photos by Luke Thomas.<\/p><\/div>\n

The San Francisco Public Defender\u2019s 11th<\/sup> annual Justice Summit focused on \u201cthings that can cause innocent people to be convicted.\u201d<\/em><\/strong><\/p>\n

By Savannah Blackwell<\/a><\/strong><\/p>\n

May 14, 2014<\/p>\n

The last days of April delivered a one-two punch of disturbing news on the criminal justice front: release of an academic study suggesting that at least 4.1 percent of death row inmates are innocent, followed the next day by reports of a horrifyingly botched execution in Oklahoma. The successive blows underscore the importance of focusing the public\u2019s attention on the need for systemic reform.<\/p>\n

It\u2019s a mission many scholars, activists, practitioners, and even some law enforcement officials take seriously. Here in San Francisco, the city\u2019s top public defender, Jeff Adachi, and the attorneys and staff in his office who labor daily for the cause of indigent defense, attempt to raise awareness in a variety of ways. Chief among their efforts: a yearly forum devoted to criminal justice issues that is free and open to the general public.<\/p>\n

The summits \u201care about areas that need to be reformed and pushing the envelope,\u201d Adachi told FCJ. \u201cWe do this to bring people together to talk about solutions for San Francisco and beyond.\u201d<\/p>\n

Held each spring in the Koret Auditorium at the San Francisco Public Library, Adachi\u2019s justice summits (see FCJ’s coverage of the 2011 Justice Summit here<\/a><\/em>) have brought a range of topics to the forefront, from the future of the death penalty to the latest techniques in \u201cneuroimaging\u201d as a tool for criminal defense. At these events, attendees have not only heard from experts, they\u2019ve met people who, while experiencing the gravest of injustices, became inspired and effective activists.<\/p>\n

\"The

The 11th annual Justice Summit attracted a full house of attendees inside the Koret Auditorium, Civic Center library.<\/p><\/div>\n

This spring\u2019s summit, \u201cThe Jury is Out,\u201d featured one such survivor-activist as the keynote speaker: Gloria Killian.<\/p>\n

In the early 1980s, Killian was a law school student and a \u201ctrue believer,\u201d as she put it, in the justice system. Yet, in 1985, she found herself on trial for masterminding a home-invasion robbery that culminated in the brutal murder of an elderly man. Thanks to a secret collaboration between unscrupulous prosecutors and a convicted criminal who had been promised leniency and was willing to lie on the stand to get it, she was convicted and sentenced to life.<\/p>\n

\u201cThey knew the only proof they had against me was something they contrived,\u201d she said. \u201cBut there was real pressure to \u2018get somebody.\u2019\u201d<\/p>\n

Seventeen years would pass before the United States Court of Appeal for the Ninth Circuit freed her. During that time, she completed her law degree and, to stave off total \u201cdestruction of [her] spirit and dignity,\u201d she helped her fellow female inmates \u201cfind their voices\u201d and fight their cases. Today, she continues that work as the Executive Director of Action Committee for Women in Prison.<\/p>\n

\u201cWe need to keep fighting until the system is fair,\u201d she told FCJ. \u201cNobody should have to go through what I went through. It\u2019s not right.\u201d<\/p>\n

\"Author

Author Gloria Killian.<\/p><\/div>\n

\"Georgia

Georgia Killian was presented with flowers and a commendation from the San Francisco Public Defender’s office.<\/p><\/div>\n

(For a more detailed account of Killian\u2019s story, see CNN\u2019s March 23, 2014 edition of \u201cDeath Row Stories\u201d or the book she co-authored, \u201cFull Circle: A True Story of Murder, Lies and Vindication\u201d).<\/em><\/p>\n

The main part of the 2014 Justice Summit consisted of three panel discussions. The first focused on the problematic role that human memory can play in criminal adjudication. The second addressed the impact of having a mother or father (or both) behind bars, as well as the experience of being the locked-up parent. The third dealt with issues surrounding plea bargaining.<\/p>\n

Panel I: \u201cBeyond Woody Allen: Can We Trust Our Memories?\u201d<\/h4>\n

On February 1, the New York Times<\/em> published Dylan Farrow\u2019s \u201cOpen Letter<\/a>,\u201d in which the adopted daughter of actress Mia Farrow and filmmaker Woody Allen recounted the alleged sexual abuse she suffered at the hands of Allen when she was a child. Farrow\u2019s piece, which marked the first time she publicly shared the story as an adult, brought the allegations against Allen back to the forefront some twenty years after her mother had made them. The letter also renewed the debate over the reliability of childhood sexual abuse memories and inspired the title of the first panel.<\/p>\n

In her introductory remarks, moderator Sangeeta Sinha, a Deputy Public Defender in Adachi\u2019s office, noted that cognitive scientists now generally agree that human memory is \u201cmalleable, susceptible to distortion, contamination and other forces\u201d that can make it inaccurate.<\/p>\n

\"Sangeeta

San Francisco deputy public defender Sangeeta Sinha.<\/p><\/div>\n

And yet, for better or worse, “every case and every trial is about memory,” as panelist Douglas Horngrad pointed out. His remark was essentially an acknowledgement of the major role that witness recollection plays throughout any criminal proceeding \u2013 from the filing of charges to the eventual determination of guilt or innocence.<\/p>\n

Horngrad defended George Franklin, who, in 1990, was convicted for molesting and killing an 8-year-old girl some twenty years earlier. The evidence against Franklin consisted solely of his adult daughter\u2019s sudden recollection of having seen him commit the crimes when she was a child. Ultimately, a federal court overturned his conviction \u2013 in part because the daughter had admitted on the stand that her \u201cmemory\u201d was drawn out through hypnosis. According to Horngrad, the gist of the judge\u2019s decision was that in a case of \u201crecovered\u201d or \u201crepressed\u201d memory, there has to be other, corroborating evidence.<\/p>\n

\"Attorney

Attorney Douglas Horngrad.<\/p><\/div>\n

Panelist Melina Uncapher, a neuroscientist and memory expert at Stanford University\u2019s Memory Laboratory, said that scientists have found \u201cno real evidence of truly \u2018repressed\u2019 memory.\u201d<\/p>\n

She suggested that a so-called \u2018repressed\u2019 or \u2018recovered\u2019 memory is simply one that a person has not accessed in a long time. \u201cThere are tons of memories in your brain that once you turn your attention to, you can remember,\u201d she said.<\/p>\n

\"Melina\"

Neuroscientist Melina Uncapher.<\/p><\/div>\n

Panelist Jim Hammer, a legal analyst who formerly headed the homicide division of the San Francisco District Attorney\u2019s office, cautioned prosecutors and investigators to \u201clook very closely\u201d at evidence based on witness recollection, to \u201cdig\u201d for the truth, and to \u201ctreat a situation where someone `forgot\u2019 [and then suddenly remembered] a memory with special attention.\u201d<\/p>\n

\u201cOur worst nightmare is putting an innocent person in jail,\u201d he said.<\/p>\n

\"Attorney

Attorney Jim Hammer.<\/p><\/div>\n

Uncapher also said that memories can be implanted.<\/p>\n

(Some Woody Allen defenders have accused Mia Farrow of implanting the memory of abuse in her child\u2019s mind during the couple\u2019s bitter, and well-publicized break-up in the early 1990s).<\/em><\/p>\n

\u201cThat can and does happen in many different ways,\u201d Uncapher said. She mentioned as an example that \u201cpeople can be told of other people\u2019s memories and take them on as their own.\u201d<\/p>\n

Earlier, Uncapher explained that the fallibility of human memory also has to do with its \u201cconstructive\u201d nature.<\/p>\n

From brain scans, scientists can see that \u201cwhen we retrieve a memory, we have to go into different parts of the brain to bring [it] back,\u201d she said. In so doing, the brain can easily fuse unrelated information from various \u201cstorage files\u201d to create an impression of an occurrence. The retrieval process, she said, is \u201cvery prone to error,\u201d and the resulting memory \u201ccan be very distorted.\u201d<\/p>\n

Studies have disproved the commonly-held belief that the more details a person can remember, or the more confident he or she is in the accuracy of the recollection, the more likely the memory is accurate.<\/p>\n

\u201cThat is not the case,\u201d she said.<\/p>\n

Panelist Joey Piscatelli, the Northern California director of the Survivors Network of Those Abused by Priests, offered a different perspective.<\/p>\n

Piscatelli said that \u201cthrowing a blanket of \u2018false memory\u2019\u201d on recollections of abuse that surface years after the abuse occurred discourages victims from coming forward.<\/p>\n

\u201cThere\u2019s no epidemic of false memory,\u201d he said. \u201cWhat there is, is an epidemic of sexual abuse, and especially child sexual abuse.\u201d<\/p>\n

He said he counsels abuse victims faced with testifying in court to \u201crecall exactly as it happened\u201d and \u201cdon\u2019t add or subtract.\u201d<\/p>\n

\u201cWe shouldn\u2019t label everyone who comes forward with a memory as a liar.\u201d<\/p>\n

\"\"

Activist Joey Piscatelli.<\/p><\/div>\n

Panel II: Children of Incarcerated Parents<\/h4>\n

In the United States today, some three million children have at least one parent who is in prison, Adachi said during introductory remarks.<\/p>\n

The experience has become so commonplace that the children\u2019s television show \u201cSesame Street\u201d recently introduced a puppet-character whose father is in jail, noted moderator Nicole Harris, a re-entry social worker in the Children of Incarcerated Parents Program in Adachi\u2019s office.<\/p>\n

Having a parent in prison profoundly affects a child, the panelists agreed.<\/p>\n

Attorney Chesa Boudin said that children in this situation often \u201cinternalize\u201d the stigma of incarceration and feel guilty.<\/p>\n

Boudin was a toddler when his parents, Kathy Boudin and David Gilbert, members of the left-wing Weather Underground, went to prison for their involvement in the politically motivated 1981 robbery of a Brinks armored truck. A security guard and two police officers were shot and killed during the incident.<\/p>\n

\u201cI remember having thoughts like, `If I had been more lovable [this wouldn\u2019t have happened]\u2019 or, `If only I could have told them not to go,\u2019\u201d Chesa Boudin said. He also said that during his youth he felt anger, that he \u201chad fights and outbursts up until high school.\u201d<\/p>\n

Even so, Boudin went on to earn two masters degrees from Oxford University, and a law degree from Yale University. He has translated, edited and authored several books, including his latest, \u201cGringo: A Coming of Age in Latin America.\u201d Boudin worked in the misdemeanor unit of the San Francisco Public Defender\u2019s Office in 2012-13 and currently clerks for Judge Charles Breyer of the United States District Court, Northern District of California.<\/p>\n

\"Attorney

Attorney Chesa Boudin.<\/p><\/div>\n

Panelist Ameerah Tubby said that after her mother went to jail, for a period of time \u201cshe wasn\u2019t communicative\u201d with people, because she \u201cwasn\u2019t communicative with [her mother].\u201d \u201cBecause of that I acted out in many ways,\u201d she said.<\/p>\n

Tubby, however, became involved in Project WHAT!, an organization for youths with incarcerated parents. \u201cWe write our stories, and we support each other,\u201d said Tubby, whose father is also in prison.<\/p>\n

\"Ameerah

Ameerah Tubby.<\/p><\/div>\n

Boudin and Tubby agreed that instability, that is, \u201cbeing bounced around\u201d from home to home is one of the most difficult challenges facing a child who has lost both parents to the system.<\/p>\n

Boudin was fortunate. Not long after his parents started serving their sentences, their close friends William Ayers, co-founder of the Weather Underground, and his wife, Bernadine Dohrn, adopted him as their own.<\/p>\n

Moderator Harris and panelist Chesa Boudin said that the great distances that typically lie between the places where the children live and the facilities where their parents are imprisoned is another major issue.<\/p>\n

\u201cMost [children] live one hundred or more miles away,\u201d Boudin said.<\/p>\n

Kathy Boudin (Chesa\u2019s mother), and Daisy Wagaman (Bram) provided the parents\u2019 perspective.<\/p>\n

Boudin said it was difficult to hear her young son refer to his adoptive mother as \u201cmom,\u201d while he called her, \u201cKathy.\u201d<\/p>\n

\u201cChesa explained to me that `mom\u2019 is the word a child calls out when he needs help,\u201d she said. \u201cGiving up that role was hard\u2026 [but] I knew I couldn\u2019t be \u2018mom.\u2019\u201d<\/p>\n

Boudin said she spent time crocheting, trying to make stuffed animals for Chesa.<\/p>\n

\u201c[Literally] in that thread, I was trying to reestablish that connection,\u201d she said.<\/p>\n

\"Kathy

Kathy Boudin.<\/p><\/div>\n

During the 22 years she spent behind bars, Kathy Boudin founded a number of prison support and inmate-education groups, earned a Masters Degree in Adult Education, wrote academic articles, co-authored \u201cThe Foster Care Handbook for Incarcerated Parents,\u201d co-edited \u201cParenting from inside\/out: Voices of mothers in prison,\u201d and published poetry, for which she won an International PEN prize in 1999. She is now an adjunct professor at Columbia University\u2019s School of Social Work and the director of Criminal Justice Initiative: Supporting Children, Families and Communities. Her husband is still in prison serving a 70-year sentence.<\/p>\n

Daisy Wagaman (Bram) agreed that it can be devastating for an imprisoned mother to hear her child refer to another woman as his maternal caregiver.<\/p>\n

\u201cBecause my sons have spent so much time in foster care, there\u2019s another woman who the little ones call \u2018Mama,\u2019\u201d she said, as she choked back tears.<\/p>\n

\"Daisy

Daisy Wagaman.<\/p><\/div>\n

Wagaman\u2019s three sons were taken from her in 2011 as a result of her arrest on marijuana-growing charges. Two of her boys were still nursing at the point when police burst through the door to her home and tore the youngest from her arms.<\/p>\n

Today, her children are with her from 8 a.m. to 6 p.m. Monday through Friday, she said. But the time when they are not in her care is still heart-wrenching for her. She has become an advocate for families who are experiencing forced separations due to the parents\u2019 entanglement in the criminal justice system.<\/p>\n

\u201cIt\u2019s really hard to maintain the rights you assume are inherent in giving birth when you\u2019re in jail,\u201d she said. \u201cBut the only decision you can make is what to do with the hand you were dealt.\u201d<\/p>\n

Panel III: The Death of the Jury Trial<\/h4>\n

For the final discussion of the day, the focus turned to another aspect of the criminal justice system that can be viewed as falling under the rubric of \u201cthings that can cause innocent people to be convicted,\u201d as Adachi put it.<\/p>\n

The first panel had addressed a frequent contributor to erroneous outcomes in criminal proceedings: the system\u2019s heavy reliance on human memory, despite its fallibility. In her keynote address, Killian had mentioned others, such as false confessions (often resulting from improper police interrogation or overt pressure) and shoddy methods of scientific inquiry. Her own story stands as a glaring example of wrongful conviction due to egregious prosecutor misconduct.<\/p>\n

Plea bargaining is the process by which a defendant gives up the right to trial and pleads guilty or \u201cno contest\u201d to a charge, in exchange for some sort of concession from the prosecutor, usually a more lenient sentence or the dropping of other charges.<\/p>\n

\u201cCopping a plea\u201d is perhaps the most commonplace element of the system. According to Adachi, it is estimated that more than 98 percent of criminal cases are resolved in this manner.<\/p>\n

In his welcoming remarks, Adachi referred to plea bargaining as a \u201cscourge\u201d of the system. In the afternoon, right before he introduced the panelists who would speak on the subject, he cited comments made by Federal District Court Judge Jed Rakoff during a lecture he gave last month at the University of Southern California Gould School of Law.<\/p>\n

\u201cPlea bargains have led many innocent people to take a deal,\u201d Adachi quoted Rakoff as saying. \u201cPeople accused of crimes are often offered five years by prosecutors or face 20 to 30 if they go to trial. \u2026The prosecutor has the information, he has all the chips \u2026 and the defense lawyer has very, very little to work with. So it\u2019s a system of prosecutor power and prosecutor discretion.<\/p>\n

\u201cWe have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty.\u201d<\/p>\n

(Rakoff\u2019s remarks were not the only source of heightened interest in plea bargaining last month. California Lawyer magazine devoted the cover of its April edition to the topic. See \u201cPleading for Justice,\u201d by freelance writer and attorney Michael Estrin).<\/em><\/p>\n

Panelist George Fisher, a Stanford Law professor and former prosecutor, said that when a prosecutor threatens a defendant \u201cwith an inordinately high sentence,\u201d should he go to trial and lose, and then offers \u201ca very low sentence,\u201d if he agrees to plead guilty or \u201cno contest,\u201d the prosecutor is engaging in a form of coercion.<\/p>\n

\u201cThat\u2019s certainly not something we should applaud,\u201d he said.<\/p>\n

(A \u201cno contest plea,\u201d where the defendant does not admit guilt, counts as a conviction and is treated the same as a guilty plea in sentencing).<\/em><\/p>\n

Fisher is the author of \u201cPlea Bargaining\u2019s Triumph: A History of Plea Bargaining in America.\u201d In the book, Fisher attributes the rise of the plea deal to the increase in caseloads and overwhelmed courts and judges.<\/p>\n

\"Stanford

Stanford Law professor George Fisher.<\/p><\/div>\n

Adachi said that the high cost of bail as well as \u201cextreme sentencing schemes\u201d are frequent factors behind an innocent people agreeing to plead guilty.<\/p>\n

Panelists Brendon Woods, who heads the Alameda County Public Defender\u2019s office and Nicole Solis, a Deputy Public Defender in Adachi\u2019s office, said that in their experiences, innocent defendants sometimes do agree to plead guilty to crimes they did not commit.<\/p>\n

\u201cDo innocent people plead guilty?\u201d Woods asked. \u201cYes, they do.\u201d<\/p>\n

Even when an investigation might uncover facts showing the defendant\u2019s innocence, he or she might still be unwilling to risk losing at trial and then having to live behind bars for a much longer time.<\/p>\n

\u201cI might think, `I\u2019ve got a wife. I\u2019ve got kids.\u2019 I might want to see my daughter get married,\u201d Woods mused. \u201cWould I take the deal? Yes, yes I would.\u201d<\/p>\n

\"Alameda

Alameda County Public Defender Brendon Woods.<\/p><\/div>\n

Before accepting a plea of guilty, the judge is required to ask whether a factual basis exists for the plea, as well as make sure the defendant understands the rights he is giving up. While a judge has the power to reject a plea deal, the authority is exercised infrequently.<\/p>\n

Panelist Quentin Kopp, the former San Francisco supervisor and state senator who is also a retired Superior Court judge, said he did not agree with the assertion that \u201cinnocent people are being confined as a result of forced plea bargaining.\u201d<\/p>\n

\u201cIn the 10 or so counties where I served as a judge or sat after retirement, I just can\u2019t imagine [such] scenarios,\u201d he said. \u201cIf a judge believes that a defendant involved in a negotiation to plead guilty or no contest is not guilty, that judge has an obligation to refuse a plea.\u201d<\/p>\n

Kopp pointed out that \u201cmany conservative legislators think plea bargaining is evil because it results in less severe<\/em> sentences that what could be imposed.\u201d<\/p>\n

\"Former

Former California Senator and Superior Court Judge Quentin Kopp.<\/p><\/div>\n

Adachi and all of the panelists agreed on one point \u2013 that a defendant\u2019s willingness to go to trial often comes down to how much faith she has in her attorney, and the attorney\u2019s level of aggressiveness and training.<\/p>\n

Panelist Alexandra Berliner, a criminal and juvenile justice activist, said that at one point in her life, she agreed to plead guilty to an assault-related charge, even though she \u201cwasn\u2019t even there at the scene.\u201d<\/p>\n

\u201cMy attorney said it would be better to take the deal,\u201d she said. Berliner said that when her boyfriend was faced with a similar situation, he agreed to do the same.<\/p>\n

\"MW2W4469_std\"

Alexandra Berliner.<\/p><\/div>\n

\"MW2W4464_std\"

San Francisco Deputy Public Defender Nicole Solis.<\/p><\/div>\n

Adachi brought out that Berliner and her partner had not felt that they had attorneys who could \u201cstrongly present\u201d their stories to the court.<\/p>\n

Woods said that when his office hires attorneys, they look for those who \u201cwant to fight,\u201d who \u201cwant to go to trial.\u201d<\/p>\n

\u201cIt\u2019s important to give them training, a lower caseload, and more time to investigate,\u201d he said.<\/p>\n

As Adachi told FCJ following the summit, \u201cIt really comes down to hard work and training.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

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