Three Vetoes

Gov. Schwarzenegger nixes sensible criminal justice reforms.

In 2004, the California state senate created the California Commission on the Fair Administration of Justice, a panel of current and former judges, prosecutors, defense attorneys, and police officials.

The legislators were concerned about the recent spate of DNA exonerations and death row releases, including at least six cases in California since 1989 in which someone had been sentenced to death then exonerated or acquitted in a new a trial.

A 2004 report in San Francisco magazine identified 200 cases over 15 years in which someone in California had been unjustly convicted, then freed—more than the number of exonerations in the next two states combined. The magazine estimated somewhere between 150 and 1,500 innocent people may still be sitting in the state's prisons. The state senate charged the commission with recommending reasonable reforms to guard against wrongful convictions.

In 2006, the commission issued its recommendations. Three modest, sensible reforms made their way to the state legislature, and were passed by both the state's house and senate earlier this year. The reforms were backed by politicians from both parties. They were backed by both prosecutors and police officials who served on the commission. The reforms would have added some formidable defenses against wrongful convictions in California. Naturally, they were opposed by the state's police organizations. And so last month, Gov. Arnold Schwarzenegger vetoed all three.

The first recommendation would have required that prosecutors who use jailhouse "snitches" corroborate snitch testimony with other evidence. Jailhouse snitches are themselves convicted felons. They aren't trustworthy people. What's more, they have a greater incentive to lie, and to lie to get someone convicted, than perhaps anyone else a prosecutor could possibly put on the stand: They want to get out of prison.

A 2004 study by Northwestern University of 111 death row exonerations since the death penalty was reinstated in 1973 found that the testimony of a jailhouse snitch played a role in 51 of the wrongful convictions.

Jailhouse snitch testimony becomes particularly invidious when paired with mandatory minimum sentences. The only way someone facing a mandatory minimum sentence can get out early is to provide information that helps prosecutors win more convictions. It's an unfortunate structure of incentives that encourages dishonesty from informants, and encourages prosecutors to suborn it.

The California commission's recommendation wouldn't have barred the use of jailhouse informants, as some activists have recommended. It would only have required that prosecutors corroborate such testimony with other sources before using it at trial.

Gov. Schwarzenegger vetoed the bill, arguing that, "When that kind of testimony is necessary, current criminal procedures provide adequate safeguards against misuse." In just six years of operation, the Northern California Innocence Project has helped exonerate 20 people in Northern California alone who were convicted in whole or in part based on testimony from jailhouse snitches.

The second reform would have required police to videotape interrogations in violent crime investigations. This too is a sensible, modest reform. Law enforcement advocates have opposed taping interrogations in the past by arguing that police officers sometimes use untoward or coercive tactics that while legal, might appear unseemly to jurors. (Suggesting that federal agents videotape interrogations was one reason the Justice Department says Arizona U.S. Attorney Paul Charlton was let go in the recent firings scandal).

If that's the case, let prosecutors put on evidence explaining to jurors why such tactics are necessary, and why they won't lead to false confessions. Then let juries decide if such tactics are acceptable. A tamper-proof, thorough videotaping of all interrogations would not only discourage police misconduct while questioning witnesses, it would also cut down on false accusations of police misconduct. Of course, it would also prevent police from illegally beating confessions out of suspects.

Overly coercive interrogation techniques can and have lead to false confessions over the years, particularly if the suspect is a juvenile or is mentally impaired—although even a normal adult can falsely confess if subjected to enough duress and abuse. In nearly a quarter of the DNA exonerations over the last 15 years, the wrongfully convicted suspect either incorrectly made incriminating statements to police, or out and out confessed to a crime he didn't commit.

Schwarzenegger vetoed this recommendation, too, with the cryptic explanation that video recordings would "deny law enforcement the flexibility necessary to interrogate suspects."

No. It would deny them the "flexibility" to extract confessions through improper coercion, at least without an impartial, documented record of the questioning; and it would allow a jury to properly weigh a confession against the environment in which it was given.

The commission's third recommendation was aimed at fixing the problem of false eyewitness testimony, which has contributed in part or in whole to more than three-quarters of known wrongful convictions. This recommendation should have been even less controversial than the other two. It would have established a task force to look into eyewitness testimony, and set up a series of voluntary guidelines for the state's police departments to follow to ensure that police lineups aren't overly suggestive.

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  • ||

    Bout time this got published. Good show on lambasting the Governator!

  • ||

    90% of the problems with the police would be solved with a shoulder mounted webcam and small hard drive clipped to their belt. We'll never get there, unfortunately, because casual sadism seems to be either a perk or prerequisite of the job

  • ||

    Even more problems would be solved by making police the equivalent of the palace eunuchs in Imperial China. You want to be a cop and wield awesome power? You get to keep your dessicated balls in a clay pot for the rest of your life.

  • ||

    For years I've been calling for videotaped interrogations, for years I've been ignored, or called soft on crime. The American people become more ovine daily.

  • ||

    Another great column Radley. My wife and I are seriously considering naming our baby after you, hope you wouldn't mind. We've got a couple months to decide.

  • Fluffy||

    Arnold probably vetoed this because he figures that if you're falsely accused and imprisoned, you can just break out of prison by impaling the guards on steam pipes and then getting to the choppah so you can fly away to kill Sharon Stone while you rescue Alyssa Milano and then melt yourself in a steel mill.

  • ||

    Another terrific column.

  • ||

    Fluffy--before he can get to the choppah he will have to coat himself in mud and kill a Predator.

  • Barry Bonds||

    Another great column Radley. My wife and I are seriously considering naming our baby after you, hope you wouldn't mind. We've got a couple months to decide.

    Me too.

    Oh. You meant "Radley".

  • ||

    My wife and I are seriously considering naming our baby after you

    Radley, please tell him how the kids at school taunted you and how this is not a good idea.

  • ||

    Re: #1 - I disagree with Mr. Balko - I don't think the decision as to whether a witness' testimony is trustworthy or not should be taken out of the hands of the jury. It's up to the jury to decide and the defense lawyers can always point out which witnesses are "snitches". And who will decide if the snitch's testimony is properly coroborated anyway?

    Re: #2 - I agree with Mr. Balko, although I don't think this reform would make much difference. If the cops wanted to beat a confession out of a suspect, they'd just do it in a room with no camera and then record the "legal" part where he signs the confession.

    Re: #3 - I agree with Mr. Balko, at least as far as lineups are concerned.

  • ||

    Remember back during the recall and special election, when we thought Arnold might just be something better than California's past governors and not a shit sandwich?

  • ||

    Dan T.,

    It goes along with barring other evidence that is judged as being more prejudicial than substantive. I'm leaning towards your position on this, though. Until there is some research demonstrating that this type of evidence frequently lacks substance (i.e. is a lie), judging the value of evidence is a jury's job.

  • ||

    Remember back during the recall and special election, when we thought Arnold might just be something better than California's past governors and not a shit sandwich?

    Doesn't it suck when events prove you wrong? It does here.

  • Ryo||

    If the cops wanted to beat a confession out of a suspect, they'd just do it in a room with no camera and then record the "legal" part where he signs the confession.

    Sure, but then they'd be breaking the law which is the point. The police would have to account for the time when the suspect was in custody but not in a cell and not on video. Which would likely involve more actors which increases the likelihood that the beating would be exposed. If nothing else, it's another hurdle abusive interrogators would have to contend with.

  • ||

    Before Radley (rightly) busts my chops, by 'frequently' I mean whatever the appropriate legal threshold might be. Radley presents data regarding a number of events that might qualify as 'frequently'. I am just not convinced that the data he presents is representative of a sufficient number of cases to be able to make that judgment. I will not be surprised if a more comprehensive study does demonstrate that this testimony is often perjury.

  • ||

    Until there is some research demonstrating that this type of evidence frequently lacks substance (i.e. is a lie), judging the value of evidence is a jury's job.

    From the article:

    A 2004 study by Northwestern University of 111 death row exonerations since the death penalty was reinstated in 1973 found that the testimony of a jailhouse snitch played a role in 51 of the wrongful convictions.

    That's 46%.

  • ||

    Sure, but then they'd be breaking the law which is the point. The police would have to account for the time when the suspect was in custody but not in a cell and not on video. Which would likely involve more actors which increases the likelihood that the beating would be exposed. If nothing else, it's another hurdle abusive interrogators would have to contend with.

    True. I guess it could only help in that sense.

    Schwarzenegger's point is worth considering, though. Would the police ever be able to perform an effective interrogation if both they and the suspect know that everything they say and do might be scrutinized by people unfamiliar with legal and accepted police tactics? Should prosecutors be burdened not only with proving the accused is guilty but also with defending the techniques of the police?

  • ||

    Would the police ever be able to perform an effective interrogation if both they and the suspect know that everything they say and do might be scrutinized by people unfamiliar with legal and accepted police tactics?

    We expect juries to sift through all sorts of evidence that they are untrained in. How much does Miss Mary from down the street know about DNA testing procedures?

    Should prosecutors be burdened not only with proving the accused is guilty but also with defending the techniques of the police?

    If it requires defending, yes.

  • Dave B.||


    A 2004 study by Northwestern University of 111 death row exonerations since the death penalty was reinstated in 1973 found that the testimony of a jailhouse snitch played a role in 51 of the wrongful convictions.

    That's 46%.



    46% of wrongful convictions, not 46% of trials involving a jailhouse snitch. You might as well say that defense attorneys are bad because they were involved in 100% of the wrongful convictions.

  • LarryA||

    [sarcasm] Actually these reforms aren't needed. Arnold recently signed into law legislation requiring all semiauto pistols to have microengraving added to their chamber that will stamp cartridge cases with the make, model, and serial number. We have been promised that this common sense gun law will vastly reduce crime in California, and positively identify criminals to enable their swift and sure prosecution. [/sarcasm]

  • ||

    46% of wrongful convictions, not 46% of trials involving a jailhouse snitch. You might as well say that defense attorneys are bad because they were involved in 100% of the wrongful convictions.

    Wrongful death penaly convictions to be completely accurate. for an analogy, let's go to bite marks evidence. Some of the people who were convicted when this type of evidence was presented were in fact guilty. That has NO BEARING on whether this kind of evidence is reliable or germane. If it is unreliable, it should not be presented to a jury. See polygraph evidence for an examole.

  • Russ 2000||

    46% of wrongful convictions, not 46% of trials involving a jailhouse snitch.

    I'll admit the numbers by themselves don;t mean a whole lot, but on the other hand we can't be sure that the other trials involving a jailhouse snitch won't turn out to be wrongful convictions.

  • Robert||

    "Remember back during the recall and special election, when we thought Arnold might just be something better than California's past governors and not a shit sandwich?"

    Being a shit sandwich still doesn't explain the vetoes.

  • ||

    California has far more people than the next two states. You want to look at rates.

    150 to 1,500 is a horrible estimate. A difference by a factor of ten is hardy accurate.

  • ||

    Don't forget that he also signed the "micro-stamping" bill, which requires that all new firearms starting in 2010 (?) stamp the shell casing with a unique identifier.

  • حضك لسنة 2012||

    thanks

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