Paper

INSTRUCTIONS:

· Write to request letter that the Innocence Project take over your case and represent your plea for release from death row.

· Assume that you are incarcerated at Midwest Penitentiary and that you are acting as a wrongfully convicted person who has been sentenced to die by lethal injection.

· Listed below are the facts in your case that led to your current incarceration. You are to write a 2-page request. Include an introduction and conclusion paragraph.

· In the paper, you will focus on some way to convince the Innocence Project that your death sentence should be overturned because of irregularities in the way your case was handled at the local level, which include having credible witnesses for an alibi, ineffective paid counsel, and a highly tainted victim ID.

· Make your best case by remaining focused on what you think is the most important issue, and don’t just use a “shotgun” pattern in hopes that something will hit.

· Highest regarded papers are ones that are most likely to be successful winning an exoneration and focus in on exactly what has the most legal bearing.

FACTS OF YOUR CASE: 

You are a 30-year-old black male.  In the early-morning hours of August 7th, 1997, a 40-year old white woman was walking through the courtyard of her apartment building when she was attacked from behind and thrown to the ground. The assailant bit the victim’s neck, ripped her dress open and killed her.  A neighbor saw the assailant flee on a bike and reported the incident to a police officer who had been called by different neighbors who heard the victim’s screams. The neighbor who reported the crime told police that the victim had been attacked by a black man who was wearing black shorts and no shirt. She also said the man had a very strong body odor, which she smelled on the victim when she ran out of her apartment to help her. Although the neighbor believed that the attacker lived outside of the apartment complex, a security guard for the complex directed police to you—one of the few black people living in the apartment complex.

Police knocked on your door just minutes after the crime occurred. You were in your bedroom wearing pajamas, rocking your young daughter to sleep. The officers conducted what is called a one-on-one “show-up,” a highly-suggestive identification procedure in which a single suspect is presented to the eyewitness at either the site of the arrest or near the site of the crime.  You were told to get dressed. You changed out of your pajamas into black shorts and you were taken outside to the victim who was waiting in a patrol car. You had no shirt on. The neighbor was asked to get out to take a closer look and to smell you, at which point the neighbor identified you as the victim’s assailant. Although you did not have strong body odor, but rather smelled of soap, the neighbor who identified you explained at trial that she believed that you must have taken a shower and that meant that you were the attacker.

You went on trial on November 19, 1997. Your mother retained a private lawyer to represent you. The lawyer, Frank J. Larry, met you for the first time on the day that your trial was set to start. At trial, the neighbor claimed that she recalled seeing a tattoo with the letters “LLE” on your chest. A police officer testified that the neighbor did not mention anything about the tattoo until after the show-up, during which you were shirtless, exposing your chest tattoo of the name “MICHELLE.” You testified in your own defense and told the jury that you were at home caring for your “fussy infant daughter” at the time of the crime. Despite the fact that four relatives who were at home with you that night testified as alibi witnesses, you were convicted in less than a day. You were sentenced to death for the crime of First Degree Murder.  You have contacted the Innocence Project of Colorado and you are requesting a DNA test of a stain on the shoulder of the victim’s dress where she was bitten. You are also uncertain as to whether the attorney that your mother obtained did anything to properly prepare for the trial and you would like for the Innocence Project of Colorado to represent you during your appeal.

TOOLS TO HELP YOU MAKE YOUR CASE:

WITNESS   CREDIBILITY

Witness   Misidentification

·                         The human mind is not like a tape recorder and does not record events as we   see them nor recall them as happens when rewinding a recording (The Innocence   Project)

·        Identification are less accurate when they individual is a different   race/ethnicity

Variables   that Affect Witnesses

·        Lighting

·        Distance from the person or event

·        Presence of a weapon

·        Degree of stress or trauma during the event

Variables   that Affect Juries

·        Non-verbal cues: attractiveness, believability, age, ethnicity, gender (Brodskey   et al., 2010)

·        Jurors tend to focus on other factors rather than testimony content when the   testimony is more complex (Cooper et al., 1996)

Expert   Witnesses

·        Credibility factors: confident, likeable, trustworthy, knowledgeable (Brodsky   et al., 2010)

SUSPECT   IDENTIFICATION

Misidentification

·        40% of eyewitness identifications are mistaken (Vrij, 1998)

·        80% of the first 100 DNA exonerated wrongful conviction cases were based on   false identifications (Cicchini & Easton, 2010)

·        Cross-examination is not useful when the witness is mistaken as opposed to   when they are lying (O’Toole & Shay, 2006)

Procedure

Problem

Reform   Solution

Lineup

·        Administrators can unintentionally make suggestive statements, gestures, or   facial expressions that provides misleading feedback

·        Compositions are not always similar and there is an increased likelihood the   suspect might stand out

·        Giving confirmatory feedback on witness’ identification can inflate their   recollections

·        Not recording identifications creates problems when presenting error or   misconduct during identifications

·        Blind administration involves an officer who is unaware of the suspect as to   limit unintentional suggestions

·        The “fillers” (non-suspects) should resemble the eyewitness’ description

·        The suspect should resemble the fillers

·        Eyewitnesses should not view multiple lineups with the same suspect

·        The eye witness should submit a statement after identification, but before   any feedback is provided

·        All identifications should be video recorded

Show-up

·        Increased risk of false identification

·        Most suggestive identification procedure

·        Even less reliable than lineups and photo arrays

·        Eye witness often believe that the officer has caught the true perpetrator

·        No due process protection when permitted at trial

·        Show-up evidence is not admissible unless at the time of the show-up the   circumstances prevented the use of less-suggestive procedure (e.g., lineup or   photo array), or the police lacked probably cause to arrest the defendant and   detain him or her for a lineup or photo array (Cicchini &Easton, 2010)

FIRST DEGREE MURDER IN COLORADO:

Code Sections

Colorado Revised Statutes Sections 18-3-102: Murder in the first degree

What is Prohibited?

Colorado prohibits murder in the first degree, which is any of the following types of killings:

· A deliberate, intentional killing of another

· Causing a death of anyone (besides a criminal participant) while committing, attempting, or fleeing the scene of arson, robbery, burglary, kidnapping, sexual assault, sexual assault of a child, or escape from lawful custody (sometimes called felony murder)

· By causing an innocent person to be convicted and executed due to perjury or persuading another to perjure

· Causing someone’s death by knowingly engaging in conduct that creates a serious risk of death, because of an attitude of malice and extreme indifference to the value of human life (sometimes called depraved heart murder)

Penalty

Crimes in Colorado are divided by class. Class 1 felonies are at the top, murder in the first degree is a Class 1 felony. Class 1 felonies can be punished by at a minimum, life imprisonment, and at a maximum, the death penalty.

SECOND DEGREE MURDER IN COLORADO:

Code Section

Colorado Revised Statutes Section 18-3-103: Murder in the Second Degree

What is Prohibited?

Second degree murder in Colorado is knowingly causing the death of another person.

Penalty

Second degree murder is a Class 2 felony

Class 2 felonies are generally penalized by a presumptive minimum of 8 years and a maximum of 24 years, with five years parole. However, second degree murder is a violent crime which has a higher maximum of twice the usual maximum sentence, thus 48 years would be the presumed highest end of the punishment range.

Murder in the second degree is reduced to a Class 3 felony where the death was caused during a sudden heat of passion, caused by a highly provoking act of the victim, which excites the defendant sufficiently, and that a reasonable person in his or her place would also be provoked. However, if there was time to cool down from the excitement, it would be a Class 2 felony.

Class 3 felonies are punished by 4-12 years, but again, as a violent crime, 24 years would be the presumed upper limit.

INEFFECTIVE ASSISTANCE OF COUNSEL IN COLORADO:

A claim of ineffective assistance of counsel on appeal – presents a mixed question of law and fact. The benchmark for judging any claim of [ineffective assistance of counsel] is whether the lawyer’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984).

To win a claim of ineffective assistance of counsel, a defendant must therefore meet two prongs:

1. Counsel’s performance was constitutionally deficient;

                                               AND

2. The deficient performance resulted in prejudice to the defendant.

To satisfy the prejudice prong, in the context of a guilty plea for example, a defendant must show that but for counsel’s errors, there would have been a substantially different outcome.