Wrongful convictions and Chicago Police-

Good piece on National Registry of Exonerations report that shows Cook County, Illinois leads the nation in documented wrongful convictions. The great majority of those cases -- 67 since 1986 -- were handled by the Chicago Police Department.

As the article notes, “That’s a number to be ashamed of. There are 67 cases in which the Chicago Police collected "evidence" of serious wrongdoing against a person who turned out to be innocent....More shocking still is this fact: the Chicago Police Department has never conducted an investigation, filed disciplinary charges or imposed discipline on a single police officer for negligence or any other form of wrongdoing in a single one of these cases. (Chief) Gerry McCarthy and his predecessors just don't care.”

Beyond Bars: Dennis Maher moves on

In a Boston Globe piece, Dennis Maher has moved beyond the wrongful conviction that took prime years from his freedom. “I got over losing the 19 years of my life,’’ says Maher, 50, in an even tone. “I don’t try and make up for it because I can’t. The best that I can do is just go forward. Don’t hold the anger.’’

In addition to his job at Waste Management, where he started working one month after his release, Maher speaks publicly at conferences and other events involved with wrongful convictions and the importance of access to DNA testing. “It’s part of the healing process,’’ says Maher. “I enjoy it.’’

1982 Lowell arson conviction may be reconsidered

The Boston Globe did a piece on flaws in an arson investigation that led to the conviction of N&A INC client Victor Rosario. An appeal is being filed.

Supreme Court Affirms: Client Michael O'Laughlin Is A Free Man

Yesterday, the U.S. Supreme Court denied a petition for a writ of certoriari filed by the Commonwealth, thus letting stand the order by the First Circuit Court of Appeals freeing client Michael O'Laughlin and affirming his innocence.

Thus ends Michael's nine year odyssey of imprisonment.

Boston Bar Assoc. Task Force- 3 recommendations for avoiding wrongful convictions

A BBA task force noted that for every defendant wrongly convicted, a criminal goes free. The report makes three key recommendations:

(1) Enactment of a Massachusetts statute to guarantee post conviction access to DNA testing and to require preservation of biologic forensic evidence. (Massachusetts is one of only 4 states that does not have such a statute).

(2) Expanding the membership and function of the Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors. (The report cites a 2008 study by the National Academy of Sciences raising serious questions about the scientific foundation of significant portions of forensic evidence admitted in courts.)

(3) Videotaping confessions. (Based on a 2004 decision of the Supreme Judicial Court most police departments are now recording confessions of suspects. The number of departments who are doing videotapes rather than just audiotapes is still in the minority. Experience of those departments who are videotaping demonstrates that the evidence obtained is more effective because there is absolutely no doubt about what is happening during the witness interview.

Bit surprised that they did not recommend further reform of prosecutor's ability to buy testimony in the form of not prosecuting snitch witnesses for certain crimes--a major problem in numerous cases we have worked on over the years. The notion of sending a check for $70,000 to a witness in exchange for their cooperation seems obviously wrong. But the notion of giving someone 8 years of their life back by not prosecuting them (and what value do you put on a year in prison?--$70,00 per year? more?)--that tactic will continue unabated. Although a jury can weigh evidence of such side deals, the fact is that many inducements given by the government to snitch witnesses are not documented at all.

$3.1 million settlement for client in Ayer wrongful conviction

Dennis Maher reached a $3.1 million settlement in his civil rights case against the town of Ayer. Maher was released from prison in April 2003 after having served 19 years of a life sentence for rape. He was exonerated when forensic tests revealed his genetic fingerprint did not match DNA evidence found at the scene of an alleged 1983 Ayer rape at the Caza Manor Hotel. Maher claimed his civil rights were violated due to the negligent management and training of Ayer Police Department investigators, including now-retired Officer Nancy Taylor-Harris.

Maher's civil case was based partly on evidence unearthed by private investigator John Nardizzi, who discovered that one of the alleged rape victims had faced criminal assault charges of her own during that era. These charges were dropped in exchange for her cooperation on the Maher case. Defense counsel was never told about the arrangement that Taylor and the Ayer Police had engineered with the victim/witness. The witness's criminal charge was transfered to another court and essentially disappeared from the public docket, only to be unearthed two decades later. The prosecutor who handled the Maher case later testified at his deposition: "Officer Taylor, in my opinion, engaged in misconduct by working some side arrangement with the victim not to prosecute her for a criminal case against the police department, and withheld that information from me."

Nardizzi also unearthed evidence that a key witness at trial, Richard Nichols, was well-known to Ayer Police and Nancy Taylor (who denied any memory of him in her deposition). Nichols was the son of a former police matron employed for decades at the Ayer Police Department. Moreover, Nichols had been arrested multiple times. Ayer Police were not able to produce any notes, reports, or statements from interviews with Nichols, despite the fact that a meeting between Nichols and Taylor was documented in a police log, and Nichols turned out to be the centerpiece of their case.

Supreme Court orders client Michael O'Laughlin released on bail

After nearly 9 years in prison, Michael O'Laughlin was release on bail last week. Attorney General of the Commonwealth of Massachusetts had filed any emergency motion with the US Supreme Court to keep Michael in prison. Associate Justice Stephen Breyer of the Supreme Court denied the Attorney General's motion and ordered Michael to be released with bail. Justice Breyer wrote: "Respondent’s liberty interest in release is particularly substantial given that it is not reasonably likely that this Court would grant a petition for certiorari filed by the Commonwealth."

The 1st Circuit Court of Appeals had overturned a Massachusetts Supreme Judicial Court decision earlier this summer, holding that the evidence presented could not permit any rational jury to conclude that O'Laughlin was the assailant beyond a reasonable doubt.

Appeal for en banc hearing in O'Laughlin case denied

This just in from Advocates for the Wrongfully Convicted:

The US First Circuit Court of Appeals has denied the Commonwealth of Massachusetts appeal for an en banc hearing. This means that the decision by the 3-judge panel that reversed Michael O'Laughlin's conviction on June 11, 2009 remains intact. The only option left for the Commonwealth is for the Attorney Generals office to file a petition for writ of cert to the US Supreme Court, and we believe they will. We expect the Commonwealth will move to stay the order (keeping Michael in prison) while the writ of cert to the US Supreme Court is pending. Michael's lawyer will file a motion for release and try to obtain bail for Michael so he can be released from prison.

Client Est. of Kenneth Waters wrongful conviction case will go to trial

The civil rights case filed by client The Estate of Kenneth Waters will head to trial after a summary judgment motion file by defendants Town of Ayer, Nancy Taylor, et al. was rejected by the trial judge.

Kenneth Waters was wrongfully arrested and convicted. He served 18 years of a life sentence for the 1980 murder and armed robbery of Katharina Brow. Waters was released from prison after DNA evidence had revealed the blood of an unknown person at the murder scene.

Waters complaint alleged that the Ayer Police and Taylor's deliberate bad-faith suppression of favorable evidence led to his conviction – including suppression of evidence that Waters was not the source of the perpetrator’s bloody fingerprint on a piece of a toaster on the dining room floor; as well as suppression of Waters’ time card from work, which cemented his alibi. Taylor was also accused of used coercive and suggestive tactics to manufacture falsely incriminating statements from witnesses Brenda Marsh and Roseanna Perry.

Court of Appeals Reverses Conviction of client Michael O'Laughlin

In a rare decision upholding a lower court decision overturning a jury verdict, the 1st Circuit Court of Appeals overturned the Massachusetts Supreme Judicial Court [SJC] in the murder case of client Michael O'Laughlin. Citing the "the extremely high bar " in such instances, the court found in part: "Taken together, the circumstantial evidence in this case, even when drawing all reasonable inferences in favor of the prosecution, does not permit any rational jury to conclude that O'Laughlin was the assailant beyond a reasonable doubt." The opinion is notable for its thorough parsing--and ultimate rejection-- of the consciousness of guilt evidence cited by the SJC.

The court summed up the case as follows:

"A Massachusetts Superior Court jury had convicted O'Laughlin of the following counts: (1) burglary and armed assault in a dwelling; (2) armed assault in a dwelling; (3) armed assault with intent to murder; and(4) assault and battery by means of a dangerous weapon. The Superior Court then sentenced O'Laughlin to 35-50 years on Counts One and Two; 19-20 years on Count 3; and 9-10 years on Count 4, ruling that the sentences were to be served concurrently.

The intermediate Massachusetts Appeals Court reversed the judgments holding that there was insufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 830 N.E.2d 222 (Mass. App. Ct. 2005) (hereinafter "O'Laughlin I"). The Massachusetts Supreme Judicial Court ("SJC") reinstated the judgment reasoning that there was sufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 843 N.E.2d 617 (Mass. 2006) (hereinafter "O'Laughlin II").

O'Laughlin filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts on grounds that (1) the SJC's (which had ruled that was objectively unreasonable because there was insufficient evidence to support a guilty verdict and (2) that the SJC violated his constitutional right to present a defense. The district court denied O'Laughlin's petition for habeas relief.

After careful consideration, we reverse the judgment of the district court and order the district court to grant the petition. "

A full factual recounting of the case is found here. Michael remains in prison pending a state appeal for an en banc hearing by a full panel of 1st Circuit judges.