Miscarriages of JusticeUK (MOJUK) 22 Berners St, Birmingham B19 2DR press conference after press conference, in which he and local law enforcement investigators Tele: 0121- 507 0844 Email: [email protected] Web: www.mojuk.org.uk detailed the grisly details of their theory of the crime and the evidence, as if guilt was a given and a trial was unnecessary. It was that mood — and the attending media frenzy — that made MOJUK: Newsletter ‘Inside Out’ No 567 (28/01/2016) - Cost £1 it virtually impossible for Avery and Dassey to get affordable bail or an untainted jury anywhere in the state. The presumption of guilt was on full display. Presumption of Innocence Exists in Theory, Not Reality Keith Findley, Washington Post Much can be done to protect the presumption of innocence, starting with enforcing the eth - If, as the Supreme Court has consistently declared, the presumption of innocence is among the ical rules against prejudicial pretrial publicity, changing the way police interrogate suspects most fundamental principles in our criminal justice system, it is also among the most fragile. The pre - and recalibrating pretrial release decisions to allow the innocent to prepare a defense. sumption is under constant assault from jurors’ natural assumption that if someone is arrested and Following nearly any controversial case will offer many lessons about our criminal justice sys - charged with a crime, he or she must have done something wrong. It is also vulnerable to the media tem. Perhaps chief among them is the feebleness of the presumption of innocence in our sys - frenzy around high-profile cases, the fear-driven politics of crime, the highly punitive nature of our tem today, and the need to find ways to reinvigorate that bedrock principle. culture and the innate cognitive processes that produce tunnel vision and confirmation bias. Indeed, research suggests that the presumption of innocence exists more in theory than reality. Stop ‘Reckless and Irresponsible’ Practice Of Destroying Court Records In studies, mock jurors predict a 50 percent chance of voting to convict — before hearing any evi - Dear Mr Gove, We are writing as a group of concerned organisations, bodies and individu - dence. Other research shows that while simulated jurors initially assign low probabilities of guilt, they als working in the field of criminal appeals. As you are aware, there have been significant cuts abandon the presumption of innocence promptly as prosecution evidence is introduced. Given these to legal aid over a number of years. This has had a detrimental effect on criminal appeal work. natural inclinations, one would think a system built on the presumption of innocence would protect You may be familiar with the US documentary Making a Murderer, available on Netflix, and the and reinforce that presumption. But in many ways, it does not. Pretrial bail policies, for example, are podcast Serial first broadcast at the end of 2014. For all the serious issues these two docu - not based on assessments of any likelihood of innocence or the need for innocent people to pre - mentaries reveal about the US justice system, they highlight a criminal justice process that is pare for their defense, but solely on the risk that the (presumably guilty) accused might not appear far more accountable and transparent than our own. The ban on cameras in our courts means for trial. On this score, the presumption of guilt accelerated in the early 1970s when notions of pre - that we will never have access to the kind of 'open justice' that Making a Murderer depicts. In ventive detention — that is, complete denial of bail — emerged as part of the Nixon administration’s the US, court transcripts are easily accessible and frequently vital in successful appeal work. mission to control “criminals” before they committed crimes. By contrast, in England and Wales court transcripts are routinely destroyed after five years, The presumption of innocence is undermined in practice, as well. Police are trained to act and audio recordings after seven years, unless they have been placed under a preservation on a presumption of guilt in ways that exacerbate natural tendencies toward confirmation bias. order. Once destroyed, the important verbatim record of what was said in court is lost forever. Police are trained, for example, to make quick assessments of guilt and to interrogate sus - In some cases even the judge's summing up is destroyed and no copy is retained, which pects, not to learn information about the case, but to obtain a confession that confirms their means that no record of the trial exists and there is no chance of a fair review of the case. This suspicions. It need not be that way. Police in other countries, most notably the United leaves a situation where commonly, only the stale and fragmented mess of documents from Kingdom, are trained not to interrogate as if they know the answers to their questions. Instead, case files, often limited to police interviews, statements and reports given prior to trial, are they embrace “investigative interviewing,” in which they employ probing, non-accusatory available to those working on criminal appeals. questions designed to elicit information. Unlike police in the United States, they are not per - In the search for the new evidence needed for an appeal, this is highly problematic. Consider mitted to lie to suspects about evidence to trick them into confessing. And yet this process the case of Omar Benguit, convicted of murder in 2005 after three separate trials on the same does not impede their ability to investigate crime; suspects in the United Kingdom confess at murder charge. The court transcripts from these three trials would have provided an invaluable roughly the same rate as suspects in the United States. insight into what actually happened in the court room for the third jury to find Benguit guilty All of these assaults on the presumption of innocence — and the systemic failures to resist beyond reasonable doubt. Benguit has been in prison trying to clear his name since 2003 but them — are on vivid display in the Netflix documentary series “Making a Murderer,” about the despite this, all three sets of court transcripts were destroyed several years ago. murder trials of Steven Avery and his nephew, Brendan Dassey. Regardless of whether Avery In this new digital age, it is both reckless and irresponsible to systematically destroy the record of and Dassey are actually innocent or guilty — on that question I make no claims here — the court proceedings. Being able to access a record of what was said in court will work towards a more series effectively shows how seriously compromised was the presumption of innocence. The accountable criminal justice system. Appellants in our jurisdiction deserve a justice process that is public reaction to the case today is 180 degrees from the public’s reaction to Avery’s arrest in both open and transparent. It is inexcusable to promote a secretive process where records of impor - Teresa Halbach’s murder in 2005. As much as the public today is horrified by the apparent tant criminal proceedings are allowed to be destroyed within an unrealistic period of time. rush to judgment and questionable tactics used to convict Avery and Dassey, the outrage was We respectfully ask that you, as a matter of urgency, intervene to stop the destruction aimed squarely at Avery and Dassey at the time of the investigation. Public judgment was of court transcripts after five years and audio recordings after seven years, as these swift and vicious. The crime was horrific, and the lust for retribution was palpable. The pre - should be accessible to an appellant indefinitely. We will also invite the Criminal Cases sumption of innocence had no chance. The outrage led local prosecutor Ken Kratz to hold Review Commission to support this request. (40 notable public signatures) US: The Way to End Prison Privatization Could be Corporate Incompetence ly terminated their contract with the country’s second-largest private prison management Chandra Bozelko, Guardian: We’ve farmed out so many correctional services to private corpo - company. rations that criminal justice is no longer a government function. There are only two parts of the We don’t even know exactly how much these profiteers made in running prisons because they American criminal justice system that haven’t succumbed to privatization, according to disclose only their revenue – $1.7 billion for CCA and $1.5 billion for Geo Group – but not their research released on Thursday by ‘In the Public Interest’: the police and the courts. Everything expenditures, which would document the ways in which they cut corners. Government agencies else – including transportation, probation, food, electronic monitoring, psychiatric and drug never relinquish their duties toward constituents: they may contract out service provision to com - treatment and fine collection – has been privatized somewhere in the country. panies, but they can’t outsource their responsibility. And state and local governments can’t retract The stories about how private corporations cut corners in prisons in order to maintain their their obligations when the going gets tough, like these private businesses have done already. If profit margins are horrendous and, unfortunately, have become commonplace in public dis - we dump prison profiteers before they have a chance to desert us – leaving us to fix the destruc - course – especially in the past year. For instance, there’s Management and Training tion they caused – untold millions can be reinvested in public safety rather than someone’s pri - Corporation, a Utah corporation contracted to run the Eastern Mississippi Correctional Facility. vate bank account. We’ve privatized too much in our criminal justice system – so much that we’ve It faces a class-action lawsuit for cost-cutting that became so dangerous that inmates began essentially sold public safety and rehabilitation to the highest bidder.