It’s pretty obvious the DA who prosecuted, knowing the DNA excluded the Defendant, and worse, tried to hide that from discovery, should be more than just sanctioned in that one courtroom. Isn’t that BAR Association disciplinary committee territory?

Where were the cops while this was happening? I have to tell you that my detectives would never have stood by and let something like this go down. if it came to that, we would have called the media ourselves, much as we generally despised them. But I can’t imagine a systematic failure that would tolerate a lab technician being told not to testify truthfully or to hide the actual test results. Maybe one rogue prosecutor, sure, that could happen. We had one in our jurisdiction who was known to play fast and loose with the facts. The occasional bad cop who cuts corners? Who could deny they exist? But for this to happen, there would have been complicity all up and down the line. I just cannot imagine a setting for that to occur – but I’m not doubting what you say, just trying to imagine it.

The prosecution knew the DNA excluded Ochoa before he plead guilty, in fact the crime lab technician has testified that they told her not share that information with his defense attorney. Ochoa plead guilty because of threats made by the judge and the prosecution accepted that plea knowing the DNA did not match. Ochoa was fortunate because he had a crime lab technician on his side who continued testing the evidence after the conviction. Only after the DNA lab tech found the match did the DA attempt to save face by petitioning for his release. If he did not have such good fortune to have a lab tech on his side and if the DA required him sign a waiver preventing further testing in his case he would never have known about his innocence.

The comment @2:29 you cite in fact contradicts your own post. The attorney in that case did not “tapp out” – whatever that means. No need to get personal either.

Tom –

Reading the entire chain, I see that the prosecutors were the ones who realized that an innocent man was in jail and they filed the motion to free him. That was after a government lab tested the crime scene DNA and made a match post-conviction. So I guess the DA also “railroaded” him back out too, right? No one denies that there are mistakes and miscarriages of justice. The issue is about restricting the ability of persons who plead guilty to continue to contest the facts at the government’s expense.

Tracking dog evidence is tenuous, at best, in terms of repeatability. As for the judge, there are whack-jobs of both pro and anti-government bent around. Neither of these should have survived an appeal, regardless of whether there was a plea or not. I don’t see that this case has anything to do with the OP, which was about post-guilty plea DNA test waivers.

Take a break already, try reading instead of typing. I see a good place for you to start (Tom says) up about six comments. Or you could go to ordinaryinjustice.com & get the book by Ms. Amy Bach, it’ll explain everything you need to know about your position.

That is a terrifying story.

We have multiple cases of severely retarded people being tricked or terrified into confessing to avoid losing their children, of green public defenders not being allowed to hire the investigators or expert witnesses, of misconduct by prosecutors and blatant violations of the appearance of fairness doctrine among some judges.

Twenty prosecutors gathered to demand that the governor and House Speaker Clyde Ballard, R-Wenatchee, not interfere with the Wenatchee cases.
“There was an amazingly angry reaction from the prosecutors to my calling for an outside investigation,” Lowry says. “They kept saying that anything that was done could damage their cases, could cause reversals.
“I remember telling Clyde, ‘Thank God, we’ve finally found people who are completely infallible.’ They just knew they could do no wrong.”

You repeat that you cannot believe that people plead when innocent, or that it happens very often. Yet it does happpen, as both the original post and lots of cases [google-able] show.

I don’t think it matters if this is a problem of vast extent. I agree with Ryan that the resource issues should be addressed in some way that does not condemn a stupid, uneducated, or frightened person to unjust punishment. And, yes, if one is innocent and in prison, the punishment is unjust, however it came about.

Choose another way to stop the frivolous lawsuits problem. Do not allow DA’s to assume power of the process that isn’t theirs by having people who are under the DA’s thumb sign their rights away.

Well said.

How can these individuals be so civic-minded, when other government officials are rapacious power-grabbers?

Did the woman in your case really plead guilty, or was she convicted based on her confession?

By my quick count the final box score was 19 pleas, 10 convictions, 12 acquittals, and two ‘other’ (# 9 and 29 on that page). The longest sentence was 47 years, so lots of time to make frivolous appeals.

The whole story should be required reading for prosecutors. Well, heck, for everyone :-)

The series stops when the last person was released. According to my always fallible memory, the legal squabbles continued as people who had served their time sought to have their convictions overturned and names cleared. My recollection is that several of those worked through the system as individual cases, and that the state supreme court eventually issued an unprecedented ruling saying, in effect, ‘we’ve seen enough of these – we’re going to overturn all of the rest without further proceedings’. I may well be remembering that wrong, and I can’t find a link with a few minutes of googling. My sense, having followed the case as it developed, is that probably none of the cases were valid. I mean, 6,422 counts against a single defendant? That’s a busy defendant.

Anyway, read the series for yourself and see what you think.

These… prenuptial agreements with your jailor are an attempt by DA’s to shut down this protection in a very undemocratic fashion, using the coercive power of probable additional imprisonment time as their tool.

Choose another way to stop the frivolous lawsuits problem. Do not allow DA’s to assume power of the process that isn’t theirs by having people who are under the DA’s thumb sign their rights away.

http://www.ocweekly.com/2005-11-03/news/the-case-of-the-dog-that-couldn-t-sniff-straight/

http://www.ocweekly.com/2005-12-22/news/there-once-was-a-judge-from-nantucket/

http://www.ocweekly.com/2008-03-13/news/csi-games/

http://blogs.ocweekly.com/navelgazing/breaking-news/wrongly-imprisoned-oc-man-wins/

The prosecutors on this blog should who claim they would never want to convict an innocent person or would never want an innocent person to plead guilty – would probably also do some if not most of the following.

1. Introduce jailhouse informant testimony – leaving the deal open-ended so only after trial do I find out that the guy got 5 or 10 year sentence reduction.

2. Introduce forensic evidence with little or no scientific backing and no known error rates like hair comparison analysis or bite mark analysis by an “expert” who claims the technique is near infallible. Then oppose an motion for defense funding for our own scientific expert.

3. Do everything they can to bring up prior convictions or alleged gang ties, or any other past bad acts by my client even though they may have nothing to do with the current charge.

4 Overcharge so that there is significant risk of substantial prison time – especially in states with three strikes laws.

5. Attempt to strike every black male from the jury.

6. And in a few rare cases even hide/destroy exculpatory evidence – knowing that they will almost certainly never be punished professionally or criminally because of their near absolute immunity.

And yet somehow in the face of this when I have a client that’s already been railroaded by the system once or twice, if he’s really innocent he must plead not guilty and if he does plea bargain to avoid the risk of an extra 10-15 years he should be prevented from later attempts to prove his innocence and possibly be charged with perjury. What a mockery.

Just out of idle curiosity, in what part of the country did you work with a prosecutor’s office? A city/county would be great, but a geographical indicator would work if you’re not comfortable getting too specific.

As I recall – and this is hazy – in that one particular case, the defense (actually appellate) attorney(s) position was that a negative DNA test (meaning no match to defendant) should have been grounds for a new trial, and in effect, an acquittal, given the passage of time. However, should the test prove positive for the defendant’s DNA, their position was that the DNA evidence had not been subject to the rigors of an adversarial trial, cross examination, etc, and thus it could not be cited or used in any of the appellate process, because the government was limited to the trial record or to a traverse to any specific motion. Thus, there could be no mention of the DNA matching the defendant outside of a response to a new trial motion based solely the results on DNA testing. BTW, the trial judge did not agree with that reasoning, and refused to order the DNA tests – I think. They (the tests) were eventually done, but the results were known only after the defendant mooted the entire issue by remanding himself to a higher jurisdiction, so to speak (to steal a line from Hebrew American hotdogs).

This instance was a typical waste-time test, on the theory cited by Pat. If it’s negative, swell, I get a new trial. If it’s positive, so what? I’m already convicted, and the test results should not impact other appellate issues.

I would not want anything within this thread to suggest I condone people who have been unfairly disenfranchised from exercising the totality of their rights and privileges. It’s very hard to disagree with some of the anecdotal items in principle, although I don’t know that scientific testing after the fact would have remedied the apparent lack of justice in say, the child abuse case mentioned. In the end, however, we simply cannot provide a never-ending opportunity to those who voluntarily chose to take responsibility for their actions to change their minds. At some point, we have to have faith in the multiple layers of investigators, prosecutors, magistrates, judges and appellate courts.

ChrisTS, as others have pointed out, 5 is very much on the mark. Guilty people sitting in jail have absolutely NOTHING to lose by flooding the system with bogus complaints. They do it regularly already. If the DNA comes back and it’s theirs, then they’re no worse off than they already were; they’ve already been convicted. At most, it weakens their later claim to be released because a witness “recanted.” DNA tests on trace evidence costs thousands of dollars (DNA tests on something like a blood sample is pretty cheap, but to extract DNA from, say, a small blood stain on a t-shirt is very expensive). As others have noted, long-after-the-fact DNA testing is also very unlikely to produce definitive results, because of the risks of contamination. Every dollar you spend on post-conviction testing of people who admitted their guilt in open court (as jcamp has noted, the reality is that this provision only ever comes into play with people who plead guilty to receive LONG prison terms, not the 20 years versus 2 years plea but the 20 years versus life plea) is a dollar that can’t be spent to provide better representation and scientific investigation to defendants BEFORE they are locked up for long periods.

Would anyone here have a problem with the DNA test results being equally available for either side in any appropriate future appellate proceedings

That sounds eminently reasonable to me. I would also think that introducing non DNA evidence (‘my wife now remembers I was with her’) would open the door to the prosecution introducing DNA (or any other) evidence. If you’re asking to reopen a case because of new evidence, I think you have to take any new evidence there is.

(Out of curiosity, what was the rationale against doing so? It seems very odd to argue ‘please admit such-and-such evidence, if and only if it helps my case’.)

However, the flip side is that a person who voluntarily gets up in an open court and admits to committing some crime, and who later games the system and goes free, also represents a guilty person walking about and threatening those of us who stay within the lawful confines of civilized society.

How about a person charged with something they didn’t do? Do they have a similar obligation to see justice done and the perpetrator caught? Is their sense of civic responsibility misplaced?

I guess the bottom line of this discussion – from my POV – is that the defendants I am referring to, I assume are absolutely guilty because they have pled to a long prison term. Why should we allow them to divert time and resources from people who have maintained their innocence all along?

I think that we differ because you’re envisioning a guilty sleaze setting in his cell trying to game the system to get off any way he can – and I’m sure there is no shortage of inmates that fit that description to a T, and may a pox be on them.

Still, I can’t help but think of the Wenatchee mother. Her ‘crime’ was being stupid enough to believe the Detective when he said all she had to do was plead guilty and all her troubles would go away, but that if she kept saying she was innocent, he would make sure she never saw her kids again. We should divert time and resources to free her because, well, she’s innocent. She’s not a dimwit by choice.

I don’t have very much sympathy for many appeals: ‘the jury had too many redheads’, ‘the prosecutor wore a cross’, etc. But whisper in my ear ‘I’m innocent and I can prove it’, and you have my attention. If we need to squelch frivolous appeals, fine – IMVeryHE, not arguing whether this or that in the guidelines means that the sentence should be 100 months instead of 102 months would be a good start. As the saw goes, if you don’t want to do the time, don’t do the crime. But when you didn’t actually do the crime, the details of the path you took to get there just don’t seem important to me.

Would anyone here have a problem with the DNA test results being equally available for either side in any appropriate future appellate proceedings, so that, for instance, tests which were indicative of guilt might, in effect, shut down any number of future appellate avenues for the defendant? This obviously might not affect constitutional issues, but would be more about such things as witnesses recanting, new scientific testing which would alter trial conclusions, alleged confessions by now deceased persons, etc.

5) Some prisoners might be tempted to file DNA claims frivolously, and this is costly.
…5 strikes me as less probable in the case of DNA requests, as the prisoner would have to have some hope the test would not simply further prove his/her guilt.

IIUC, part of the concern is that modern DNA testing is so sensitive that it is prone to contamination, so the apparent new perpetrator may in fact have been some random officer gawking at the crime scene, and so a guilty man might hope that the test will find DNA that is contaminated with someone else’s DNA and not his. I’m not competent to guess at how likely that is. I think it would be interesting to get some old evidence where guilt is uncontested (because, e.g. the perp was caught at the scene) and send it off to the lab as a blind test. That would put some bound on the probabilities.

If the contamination problem is bad enough, old DNA evidence may not be any more valuable than the inmate’s wife suddenly remembering he was with her the night of the shooting. Or it might be valuable evidence. Without data, we’re guessing.

Maybe I’m cynical, but I don’t worry much about people pleading guilty to long prison terms when they didn’t do the crime. I just don’t think it happens very often. Even if such a person – innocent but pleading guilty – had no regard for himself or herself, would they not have a responsibility as Floridan points out?

“…you don’t really mean freely acknowledged, do you?”

Yes, I do. I’m referring to defendants who take a plea that results in a long term of imprisonment. We have 5th A protections. Defendants enter guilty pleas because there is overwhelming evidence of guilt, and they seek some advantage from the plea. They are not compelled to acknowledge their guilt, save by the potential legal consequences of their own actions.

In other words, I find it very hard to believe that anyone would plead guilty to, say, life imprisonment, to avoid a death penalty, when they were in fact and in truth innocent. And I don’t mean innocent of the technical details or minutiae of the statute, but innocent of the actual misdeed itself.

In the case of your hypothetical, given a two year window (sentence), any test would have been certainly done pre-trial. The examples the test waivers are intended to prevent are 20 and 30 years old, and significantly influenced by changes in scientific theory and practice.

@Floridan -

well, yes, certainly no one on the government side fails to understand that an innocent party in jail represents a guilty one free. However, the flip side is that a person who voluntarily gets up in an open court and admits to committing some crime, and who later games the system and goes free, also represents a guilty person walking about and threatening those of us who stay within the lawful confines of civilized society.

How about a person charged with something they didn’t do? Do they have a similar obligation to see justice done and the perpetrator caught? Is their sense of civic responsibility misplaced?

I guess the bottom line of this discussion – from my POV – is that the defendants I am referring to, I assume are absolutely guilty because they have pled to a long prison term. Why should we allow them to divert time and resources from people who have maintained their innocence all along?

PatHMV: No prosecutor I ever worked with wanted a guilty man to plead guilty to something he didn’t do.

This made me laugh. Prosecutors are the most ridiculously corrupt lawyers I’ve ever had the mispleasure of working with. In my time at a DA’s office, all I ever saw was a desire to convict whoever the cops dragged through the door — that’s all they cared about.

Don’t expect to prevail at trial just because you happen to be innocent. Your prosecutor will fight tooth and nail to hide evidence that your accuser is lying or delusional and that the prosecutor’s theory is wildly inconsistent with evidence known to the prosecutor, sitting in the prosecutor’s office.

Trials have nothing to do with truth. Innocence is no defense. If you want to rot in prison for decades just to avoid perjuring yourself — if you’ll cheerfully sacrifice your life for these principles, well, I think you’re insane, but you’re entitled, I guess. Just be a little easier on those who decide to try to salvage what little remains of the wreckage of their lives when the state capriciously decides to destroy them.

jccamp: However, if a person knowingly pleads guilty, then we are entitled to presume him/her actually and in truth guilty as charged. If, later, the courts determine that somehow the defendant’s Constitutional rights had been abrogated, that’a another matter. But I think it is reasonable to tell a person, admittedly guilty in fact and in law, that they are no longer entitled to scientific testing intended to create doubt about the factual issues which they have already freely acknowledged.

Well, we’re probably entitled to, but are we required to? If a person allocutes as a condition to a two-year deal, in order to avoid a ten-year sentence, we’re certainly entitled to worry that he took the deal to avoid jail time, right? And to build safegaurds into the system to remedy such errors?

And BTW, you don’t really mean freely acknowledged, do you?

Now obviously this causes concern on the part of those interested in justice. We don’t WANT innocent people to plead guilty in return for a lighter sentence for something that they didn’t actually do. So the system is pretty loaded up to force the defendant to not admit guilt unless he really did it, and judges don’t really like accepting “best interests” pleas.

If the system actually was “loaded up” against the innocent pleading guilty, then one would expect that in the subset of cases where a person was shown to be innocent after they were locked up, only a tiny minority would have plead guilty and/or confessed.

However, my recall of overviews of those cases is that the reverse is true, that most of them have a guilty plea and many even have confessions, which would tend to disprove your contention and show that instead, there is indeed a pressure for innocent people to confess.

Someone who has been doing jail time on a false guilty plea has already experienced serious consequences for his “crime”.

It seems to me that the important consideration here is that if a person convicted of a crime is, infact, innocent, then doesn’t that means there is some other person still out there who did commit the crime?

While some may feel that the penalty for a false confession should be serving out the sentence without recourse to subsequent proof of innocence, I think that is a rather shortsighted view of the larger issues in crime and punishment.

I think what the OP was about is the narrow issue of scientific testing (and re-testing) of evidence in cases of a defendant who has pled guilty and is serving a long prison term.

Although I hesitate to represent Pat’s POV, certainly I have some experience with convicts sitting around with lots of time on their hands, and filing motion after motion, limited only by the imagination and the law library at their particular institution. In the intervening years (decades?), forensic science has progressed in both theory and practice. New DNA tests, in one example, are far more discriminating, or, more telling, we have discovered ways to literally replicate new DNA from truly minute samples. So, samples which may have not yielded results in years past are now possible to test successfully. Old physical evidence is tested, DNA traces are discovered which do not match the man who has already admitted to committing the crime, and suddenly he is free. Of course, what we have really discovered is contamination, which was added to the evidence somewhere along the way. Years ago, contamination in tiny quantities might not have been detected. Now it is.

I don’t see this as a big issue in cases where a defendant pleas guilty in return for probation or some other non-custodial judgement. I also don’t see this as limiting continuing appellate paths concerning constitutional issues, since it is fairly common for defendants to plead guilty while simultaneously appealing, say, a motion to suppress (a warrant, a search, etc). There is also a fairly large body of case law in the case of witness recantation too. So, the waivers being discussed are narrow in scope.

Waivers notwithstanding, I cannot imagine a responsible prosecutor (or responsible investigator) opposing further scientific testing in any old case where the facts involve such things as hypnosis to revive suppressed memories of satanic rites, or other now discredited investigative methods, which make the original verdict questionable.

No police department I know of actually has a squad or team specifically tasked to investigate old cases already classified as solved. Put that way, why would they?

Guilty pleas are different than confessions.

I fear I’m not following. These people entered guilty pleas. I am offering these cases as examples where justice is not served by a policy of ‘you entered a guilty plea, so live with it’.

When new evidence comes along [Note 1], whether it’s DNA evidence or new witnesses or new business records or whatever, you have to look at the totality of the evidence, and if the original conviction smells, we need to fix things, whether it was a guilty plea or not. It’s the actual innocence or guilt that should matter, not what the plea was.

[Note 1] In the Wenatchee cases, there wasn’t even new evidence. If it had just been a few cases, they would have never been reviewed. The sheer number of cases made people take a skeptical second look.

PatHMV: Unless you’re going to assume that the system is so fundamentally screwed up that there’s no reason to trust jury verdicts (in which case, plea issues are the least of our problems), then the overcharging line is without merit. If the defendant really did it, then it’s not overcharging.

It’s certainly the best system we have, I wouldn’t call it fundamnetally screwed up, but it’s certainly fraught with risk.

Take a couple of high profile cases for examples. IIRC, Marv Albert pled and got probation to avoid the risk of going away for a few years. I have no idea whether or not he did it, but I sure would have taken his deal.

And the English Nanny pled as well, and got time served. I believe the main baby shaking guy in her case says that modern knowelege about shaken baby syndrome would have exonerated her.

And IIRC there were plenty of folks involved in the Satanic ritual abuse in day care centers cases that pled.

Ricardo, we don’t actually have evidence of anything in this thread on that issue. We have a paraphrase, in a newspaper article, to some figure, which doesn’t even cite precisely the study it is relying on for the statistic. As another commenter noted, when you look at the details of Project Innocence cases (where those statistics tend to come from, and which was generally cited in the WaPo article), you find that relatively few of them actually resulted in a firm finding of actual innocence. Most resulted in the exclusion of some evidence and then the prosecutor (probably because the case was 10 years old or more at that point) was unable to proceed to a new trial. That’s not the same as determining that a person who plead guilty was, in actual fact, innocent.

Of interest here is that some (many?) of the defendants confessed, falsely as it turned out. Why would they do that? The example I recall was a mother. The detective arrests her, explains that he has incontrovertible evidence that she is guilty of child abuse, but that if she confesses he’ll smooth things over with CPS and she can go home to her kids, but that if she doesn’t confess right now, ‘you’ll never see your kids again’.

Would you or I fall for that? Probably not – but people did. That kind of thing is why I don’t think we should bar post conviction review because the defendant pleaded guilty. A confession is just more evidence to put on the scales. It may be highly probative (the killer knows where the bodies are buried) or not at all (it is contradicted by physical evidence), but it’s just evidence to weigh.

However, if a person knowingly pleads guilty, then we are entitled to presume him/her actually and in truth guilty as charged. … it is reasonable to tell a person, admittedly guilty in fact and in law, that they are no longer entitled to scientific testing intended to create doubt about the factual issues which they have already freely acknowledged.

Are your reservations limited to scientific testing, or any changed evidence, and if so why?

We had a local case a few years ago, at the height of the repressed memory fad. An adult daughter was undergoing counseling, and discovered repressed memories that her father had abused her in bizarre satanic rituals. He at first denied his guilt, but while awaiting trial he ‘recovered’ the same repressed memories, confessed, and was sentenced to prison. A few years later, the daughter switched counselors and decided she didn’t have the memories after all. Further investigation indicated that that was at least partly correct, e.g. some of her centerpiece ‘memories’ were tied to specific dates, and it turned out that Dad was away on a business trip on those dates. Dad was released (pardoned? set aside? I can’t remember) but … was still maintaining his guilt after release. So here we have someone who not only confessed initially, but still maintains he is guilty. Surely, though, he should be released, since given the totality of what we know now he is almost certainly innocent?

People are weird. I have never been subjected to a 12 hour interview. I like to think I would maintain my innocence, just like I hope if I was in combat I wouldn’t just curl up in my foxhole and whimper, but having never been there, there’s no way to know.

I get the resource issue. I guess I’d put it like this: a lot of departments maintain a cold case unit, hoping to find a guilty party for some long ago crime. I think it’s reasonable to devote that same level of effort – some fraction of a percent of the effort spent on current cases, I’d guess – to work the other way, and look for the wrongfully convicted.

PatHMV: Thus, it is in fact the defendant who gets most of the benefit from a plea deal. Frankly, most prosecutors I worked with LOVED going to trial; they didn’t want cases to plead out, because then they wouldn’t get to try them. They have to move cases, of course, and there is bureaucratic pressure to keep things moving, but the personal desire of most of them is to have a trial; it’s much more interesting work than the paper processing they have to do when not in trial.

You’re basically conceding the point. Prosecutors (not the individual ones who may love going to trial, but their bosses who actually have to run an office and take responsibility for clear cases on schedule) have a strong incentive to plea bargain to avoid going through the expense and uncertainty of a trial. If, as you say, most defendants are clearly guilty and the evidence against them is clear, why are prosecutors involved in the apparently grave injustice of letting them get away with less time than they deserve?

The Occam’s Razor answer is that prosecutors have neither the time nor the resources to try every case that comes across their desk. They allow plea bargains not in a gesture of magnanimity to defendants but simply as a way of keeping the whole system working. We have actual evidence (referenced in the post above but ignored by some in these comments) that factually innocent people plead guilty to avoid the risk of going to trial. In the federal system, plea bargaining affects not only the sentence you receive but also where you serve your sentence. Not getting raped in prison strikes me as a pretty good reason for even an innocent person to hedge his bets by pleading guilty.

Incidentally, if falsely pleading guilty is perjury and a prosecutor suspects the defendant who is pleading guilty is not telling the truth in his plea, does that make the prosecutor guilty of suborning perjury? If you have someone who you think committed pre-meditated murder but encourage and allow him to plead guilty to negligent homicide, isn’t that both unethical and criminal under this view?