Cultivating Ediscovery Excellence

September 25 – 27, 2018  |  Portland, OR

Cultivating Ediscovery Excellence

September 25 – 27, 2018  |  Portland, OR

How do wrongful convictions relate to ediscovery?

Get to know one of our PREX keynote speakers

Linda Starr, one of our keynote speakers at PREX, is the Executive Director of the Northern California Innocence Project (NCIP) at Santa Clara University (SCU) School of Law. A former clerk for the California Court of Appeal, Starr worked as an assistant district attorney in Brooklyn, New York, and as a staff attorney in California’s Sixth District Appellate Program. Starr now oversees all aspects of the NCIP’s investigation and litigation of wrongful convictions and teaches NCIP courses for SCU School of Law.

As a former prosecutor, how did you make the leap to working on wrongful convictions?

It wasn’t a hard leap at all! People don’t realize it, but the two jobs are very similar. The prosecutor is always the moving party — it’s her job to investigate a case and put it together to present to a judge or a jury. And prosecutors should never be focused on “getting the win.” It’s the prosecutor’s job to seek justice. Wrongful conviction lawyers do the same thing. We reinvestigate cases in search of the truth and put our case together for a court to reexamine.

I also previously wrote appeals for indigent defendants, so I came to this work having some insight into the complacency of the system. Once you’re at the appeals stage, you’re up against a harmless error standard. The system unfortunately has this acceptance of unacceptable error.

How do you identify clients or cases to reexamine?

People — prisoners and their families — write to us asking for help. We get a wide range of requests, everything from handwritten pleas to marketing packages laying out the problems with a case. It’s an enormous triage project.

Right now, we’re trying to identify and target cases that are based on bad science — things like microscopic hair analysis and bite mark analysis. As we uncover more types of flawed evidence, we really have this burgeoning, looming pool of potential cases. We’re trying to find those cases, but it’s difficult.

Some estimates state that 45% of wrongful convictions are linked to “misapplication of forensic science.” Are science and technology friend or foe in these cases?

Science is a friend — the problem is that most “forensic science” isn’t science. Science requires replication of results. A scientist would set up an experiment to test a theory and then repeat it to verify the results. That’s not what’s happening with so-called forensic science.

Take something like microscopic hair comparisons: you have technicians looking at pigment distribution, cortical texture, a series of these observable physical characteristics of an individual hair. And they’ll proclaim that the hair they’re examining is a “match” to the hair at the scene. But there has been zero research into how many hairs share those characteristics.

What’s being done isn’t real science. Even something like fingerprint analysis hasn’t been tested for its reliability. In addition to hair and bite mark analysis, we’ve found problems with tool marks, including bullet analysis, blood spatter, medical conclusions in cases like “shaken baby” deaths, and arson investigations.

Arson investigations are a great example of what’s wrong with the approach and why it’s not scientific. Just from the name, there’s a false conclusion that what’s being investigated was a deliberately set fire. If you were being neutral, it would be called a “fire investigation.” Those initial fire investigations were conducted by firefighters, not by scientists. For years, investigators have said that pooling marks on concrete indicated the use of an accelerant. Now fire scientists have shown that those marks occur without an accelerant, due to burn patterns and airflow. They don’t prove anything about how a fire started.

Many so-called “scientific” methods are based on mythology: stories that have been passed on from investigator to investigator. Theories have been elevated to fact, but there’s no research supporting them.

Does it get discouraging doing this work and seeing how many injustices there have been?

It doesn’t, but that’s only because of the exonerees themselves. It’s incredible to see their successes, and they’re so thoughtful and philosophical about the experience that it’s inspiring. It motivates and energizes all of us to keep going. We’ve become one big family; we keep up with former clients and we all get together at our annual conference. Many exonerees are desperate to do something to contribute to improving the justice system. They often testify at lobbying events, and no one is more eloquent.

That said, exonerees face an incredibly difficult transition out of prison. The profound injustice they’ve experienced creates an extreme form of PTSD; it’s been likened to what torture victims experience. They believed in the system, and the system betrayed them. And there’s a stigma from having spent years, often decades, in prison. The world has passed them by in the meantime. They’ve lost family members, are often in poor health, and can’t explain their absence to potential employers. It’s incredibly difficult.

One of your focuses at the Northern California Innocence Project is on “improving California’s practices for retention and preservation of evidence.” What barriers and problems do you encounter in trying to reexamine evidence?

There are problems with evidence at every stage. First, there’s often a poor initial collection effort. Part of that is due to bias and unconscious expectations on both sides. The prosecutor and the police may have an idea about who they think is responsible, so when they look at the evidence, it seems to support the conclusion that they’ve already reached. Poor investigations are also a byproduct of a lack of resources. Defense counsel often have large caseloads that prevent them from doing an independent investigation, which most clients can’t afford financially anyway. Sometimes defense counsel also get caught in an expectation that they’re there to protect people’s trial rights but that they’re not representing people who are actually innocent. So initial investigations can be deficient for lots of reasons.

And then you have problems with evidence retention. There’s generally no way to search for cases or for evidence because none of the records have been digitized. Some labs only keep handwritten notes and logs, and most have no way to search their backlogs for specific types of evidence. Jurisdictions all have their own ways of doing things, so there’s no uniformity in how evidence is handled, where it’s stored, how long it’s retained, or how it can be found for reexamination later. Some physical evidence degrades over time; a lot of it just gets lost in the shuffle between the lab, the court, or the police department. We’ve found evidence in the lost-and-found box! Sometimes hospitals will still have samples, but you have to be creative about where you look.

Finally, there are no consequences for evidence loss. If an agency is supposed to keep evidence after a trial and instead it orders that evidence to be destroyed, nothing happens. No one even has to apologize; there’s absolutely no disincentive.

How do you think your work compares or translates to civil ediscovery?

They’re so different! We could definitely learn a lot from what you do with ediscovery and data technology. Unfortunately, there’s a lack of cross-talk between the civil litigation world and the criminal justice system. For our part, we’re looking for help; we know that there have to be ways to improve these processes, but we can’t even see them because we don’t know where to look or what’s possible.

And it goes both ways; I suspect that those in civil practice don’t fully grasp how difficult criminal discovery is. In a habeas corpus case, for example, there’s no initial right to discovery. You’re not entitled to anything until the court issues a show-cause. There’s not this acceptance that information will be shared. It can be incredibly difficult to get discovery before trial or even to get Brady evidence. It’s not always a malicious or intentional thing; prosecutors may not understand their obligations or recognize when evidence could be helpful to the defense.

Open-file discovery would go a long way to improving the criminal justice process. Defense attorneys would then have to be extremely diligent about accessing and examining that open file. They can’t afford to be complacent either.

It’s amazing how much freer discovery feels in a civil rights case as compared to in the criminal court context. We get all kinds of good stuff that we would never have seen before a criminal trial! One good example is the case of our former client Obie Anthony III, who served 17 years in prison for a murder he didn’t commit. We’d heard that there might be bullets or bullet casings from a nearby rooftop that we could use for comparison. We’d never been able to find them despite asking for them. They finally surfaced in the civil rights discovery process. It turned out that the detective had given them to a reporter who’d been shadowing the police, and he still had them. They ended up matching the bullets that were found on the street where the shooting actually happened. That evidence helped to establish Obie’s innocence. Obie’s story is a great example of the many things that can go wrong in a criminal investigation and trial.

Wrap up

Want to learn more? Attend the 2018 PREX conference to see Linda Starr and Obie Anthony present their personal accounts of justice failing — and how their experiences are shaping the future.

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