A conservative Federal Appeals Court Judge lists the 12 legal fallacies that have caused over 1,500 false convictions to be overturned since 1989

In a masterful law review article in the Georgetown Law Journal, Judge Alex Kozinski of the Ninth Circuit Court of Appeals, lists the twelve legal fallacies that he believes are common factors in the more than 1,500 exonerations since 1989.  Judge Kozinski was appointed by President Ronald Reagan and is considered a conservative.

He has spent the last thirty years on the appellate court hearing appeals from people who have been wrongfully convicted.

The twelve fallacies are:

1.    Eyewitnesses are highly reliable;

2.    Fingerprint evidence is foolproof;

3.    Other types of forensic evidence are scientifically proven and therefor infallible;

4.    DNA evidence is infallible;

5.    Human memories are reliable;

6.    Confessions are infallible because innocent people never confess;

7.    Juries follow instructions;

8.    Prosecutors play fair;

9.    The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt;

10.    Police are objective in their investigations;

11.    Guilty pleas are conclusive proof of guilt; and

12.    Long sentences deter crime.

He follows his discussion of each item on this list with the sentence, “What I have listed above are some of the reasons to doubt that our criminal justice system is fundamentally just.”

I cannot do justice to the article, entitled “Criminal Law 2.0” in a blog post.  Please go to http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf and read it for yourself.

Breaking: New Report Raises Questions about Calusinski conviction

Over a year and a half ago, I wrote a blog post about why I was deeply troubled by Melissa Calusinki’s murder conviction (and 31 year sentence). She was the day care worker who allegedly picked up and threw a 16 month old boy on his head, causing his death. As I wrote last February, the evidence against her was exceedingly weak and the facts surrounding her “confession” were very troubling (the police interrogated her for 10 hours, she had a 74 IQ and the extent of her confession was to say “yeah” in response to the detective’s narrative of what he thought had happened).

Today comes news that the medical evidence against Calusinski was wrong; and that State’s Attorney Mike Nerheim doesn’t think that the collapse of the case matters:

An expert whose testimony helped convict a woman of the murder of a 16-month-old toddler in her care at a Lincolnshire day care is now admitting he “missed” a pre-existing head injury — a development the woman’s attorneys are arguing should lead to a new trial.

In a surprising revelation, forensic pathologist Eupil Choi said in a sworn affidavit that the boy, Benjamin Kingan, “had suffered an old injury that pre-dated January 14, 2009,” the date of the boy’s death.

The affidavit is expected to be a key part of the legal ammunition that attorneys for Melissa Calusinski will use to try to get her a new trial. Calusinski, who lived in Carpentersville, was convicted of the little boy’s murder and in February 2012 was sentenced to 31 years in prison.

“We believe there is significant new evidence,” said one of Calusinski’s attorneys, Kathleen Zellner. “We are consulting with a number of experts and we are investigating every aspect of the evidence that was used to convict Melissa, including the viability of the medical evidence.”

What’s more, Choi’s reversal is supported by two other doctors who have reviewed the case — the newly elected Lake County coroner and the former Cook County Medical Examiner.

But Calusinski’s attorneys are in for a courtroom fight.

Lake County’s top prosecutor said that even if the new findings of Choi are correct, Calusinski should still be held accountable for Benjamin’s death if her actions, at the now closed Minee Subee in the Park day care center, exacerbated his injury.

Lake County State’s Attorney Mike Nerheim, elected to the job in 2012, has worked to restore the reputation of an office beset with several wrongful convictions, a record that has drawn national attention.

But in Calusinski’s case, Nerheim said he reviewed the new findings and believe they simply rehash the defense’s arguments at trial. Nerheim said he has found nothing to give him pause about the guilty verdict.

For Calusinski, who has been behind bars since her arrest in January 2009, the new evidence angered her, then gave her hope.

In an exclusive interview at the Logan Correctional Center in downstate Lincoln, Calusinski, now 26, said she was “shocked” when told about Choi’s new opinion. Choi did not return a message for comment Friday.

“I was very angry,” Calusinski said.

Choi’s reversal came after Lake County Coroner Thomas Rudd, who took office in December 2012, reopened Benjamin’s case early this year after speaking with Calusinski’s father and one of her attorneys, Paul DeLuca.

Rudd said he read the trial testimony, reviewed Choi’s findings, looked at the original slides, had new ones made and found the existence of a prior injury.

Rudd then asked former Cook County Medical Examiner Nancy Jones to review the materials. Jones wrote that “at the time of his death, Ben Kingan had a well-developed, organizing sub-dural membrane (an old collection of bleeding on the brain) that was missed by Dr. Choi during his initial postmortem examination.”

Following Jones’ review, Rudd delivered the new findings to Nerheim on May 8, but Nerheim did nothing.

Earlier this year, DeLuca asked Nerheim to put Calusinski’s case before the new board Nerheim formed to re

view cases in which a defendant’s guilt was is in question. Nerheim declined.

Nerheim formed the panel shortly after being elected in 2012, to restore the reputation of the office, which had been tarnished during the final years of Mike Waller’s years as Lake County state’s attorney. Four felony cases — Juan Rivera, Jerry Hobbs, Bennie Starks and James Edwards — had collapsed after DNA evidence suggested each man’s innocence. The men spent about 60 years total behind bars before being exonerated.

But Nerheim saw no reason to reopen Calusinski’s case.

On the day he died, Benjamin went from “emotionally fine to dead,” Nerheim noted. If Benjamin had a pre-existing head injury, he would have had a “logical decrease in functioning over time,” which was not seen, Nerheim said.

Even if there was a pre-existing injury, if Calusinski’s actions did something to exacerbate Benjamin’s injury, she should still be held legally responsible for his death, the prosecutor argued.

With Nerheim’s seeing no reason to act, Rudd asked Choi to look at Jones’ findings. Choi concurred with Jones, adding that “at the time of his death, Benjamin Kingan had suffered from a head injury prior to January 14, 2009, as evidenced by the well-developed, organizing subdural membrane present.”

It was Choi’s original findings at the autopsy that led police to question day care workers about their role in the boy’s death.

I have to admit that I am disturbed that State’s Attorney Nerheim did not refer this case to his review unit. This case was already a classic example of a wrongful conviction. It was supported only by a very questionable confession and questionable medical evidence. Now the medical evidence is thoroughly discredited. Up until this point, I have been very impressed by Mr. Nerheim’s willingness to put aside emotions and politics in order to make sure that each case gets a thorough review. Hopefully, he will reconsider his decision and give this case a second look.

Similarly, Cook County residents should be very concerned about this story in which a State’s Attorney resigned after she was demoted for dropping a case which (she claims) even her bosses agreed was “unprovable.” Apparently, they are of the belief that a case should be prosecuted regardless of the facts, and despite the possibility that an innocent person might be convicted, because the story received media attention and/or Anita Alvarez feels the need to show that she is tough on crime.

Using humor in the courtroom

The other day I saw a blog post about the “8 worst courtroom jokes,” which is worth reading even though the author thinks there is little place in a courtroom for humor.

I respectfully disagree.  There is nothing inherently wrong when an attorney makes a joke in open court. It just has to be done carefully.

Obviously, this became a subject of debate after the defense attorney in the Zimmerman case began his opening argument with a “knock knock” joke (“Zimmerman who?”  “Okay, you are good for the jury.” da-dum) – a joke that was universally panned, even if it didn’t cost him the case.

If you are going to use humor in the courtroom, you have to be aware of the appropriateness of a joke in that situation, who is your audience, and how receptive will they be to that joke.

Beginning a speech with a joke is a long-standing tradition.  It can break the ice, get the audience in a receptive mood, and get them on your side.  And I have heard criminal defense attorneys say that “a smiling jury is good for the defense.”  So why aren’t defense attorneys taught to begin their opening statements with a joke?

We can start off with the fact that a defense attorney makes his or her opening statement after the prosecution.  The prosecutor gets to set a mood.  In a violent crime case, that mood will likely be emotional, sad and angry.

Clearing the atmosphere of this emotional state is a must for a defense attorney.  But it has to be done carefully.  The jury’s first impression at the beginning of the trial will often decide how they will view evidence from that point out.  If, after hearing opening statements they find themselves favoring one side, they will begin to look at each piece of evidence in terms of how it helps prove that side’s case.  Evidence that doesn’t fit that side’s theory of the case might be mentally doubted or discredited.

In this situation, the right joke could lighten the mood, diminish the state’s opening statement, and get the jurors in a more receptive state of mind.  But, the wrong joke could inflame a jury against the defense, and close their mind against it, because it may come across as an indication of the defendant’s lack of remorse or sympathy for the victim.  So tread carefully.  This is why most trial attorneys avoid jokes and instead begin their opening statement with an attempt to re-frame the narrative with the defense’s theory of the case.

Over the years, I have been in lots of courtrooms where the judge appreciates (or makes) a good joke.  That is the way some courtrooms are.  But not all courtrooms.  I have also seen judges snap at attorneys for minor transgressions.  For example, one time I saw a judge take down an attorney for referring to the parties pre-trial maneuvering as part of the “game” (“Counsel, this is not a game!”).   Attorneys have to be careful of each word they use in court, and be mindful of the reaction they might trigger with the wrong phrase or comment.

Another problem I find is that some trial attorneys lose their sense of perspective.  Because they deal with the worst side of people on a daily basis, they develop a form of gallows humor.  As a result, there is a tendency to make all sorts of inappropriate jokes that might get an appreciative audience from a fellow attorney (maybe),  but not from victims of crime or a jury panel.   The Zimmerman “knock knock” joke is the type of “joke” that might’ve gotten a laugh from the judge and prosecutor during a private conference in chambers, but was not appropriate in front of a jury.

Of course, when trying a case before a jury, one of an attorney’s main goals should be to try to get the jury to like you.  When done right, a joke can help in this area.  But when done wrong, a joke can truly backfire.  This was the cardinal sin of the Zimmerman “knock knock” joke – don’t zing your jury!

Simply stated, humor in the courtroom can be a valuable tool in an attorney’s arsenal, so long as he or she is always aware of his or her audience.

Witness error: How mind tricks can put the innocent behind bars

Witness error: How mind tricks can put the innocent behind bars.

Many criminal prosecutions rely heavily on eyewitness testimony.  Yet, as we have learned in recent years, many eyewitnesses are mistaken.  There are many reasons for this.  Yet, in Illinois, expert testimony as to the fallibility of eyewitnesses is frowned upon and rarely allowed.

The above link will take you to an NBC story about how faulty eyewitness testimony can lead to a wrongful conviction.

You can watch ‘Conviction,’ the story of Jon-Adrian Velazquez’s murder case, Sunday night at 8 p.m. ET/7 p.m. Central on ‘Dateline NBC’