Please tell us something about your background, how long you been active in criminal defense, and something about what brought you to practice criminal law.

I grew up in a small town, Seminole, Oklahoma, and I came to U-M as an undergrad to study physics.  After four years of grad school in physics and math (Cambridge and Cornell), I decided to quit my Ph.D. project and do something involving science and public policy, so I came back to U-M for law school.

During my 1L year, I would occasionally wander over to the Washtenaw County courthouse to see what was going on.  I ended up watching several criminal trials, including one in which the judge had to stop the prosecutor and defense counsel from going outside for a fistfight.  I found the cases fascinating, so I decided to do a summer internship with the Washtenaw Public Defender.  After that, I was hooked.

After clerking for Judge Ralph Guy on the Sixth Circuit, I went to work at SADO.  I was there from 1992 until 2000, when I joined the faculty at Wayne State.  I got tenure at Wayne as a research professor but I couldn’t stop myself from practicing law, so I decided I really should become a clinical professor instead.  I came to Michigan in 2008 to start the Innocence Clinic.

Please tell us about the Michigan Innocence Clinic, and about several of its recent successes.

Bridget McCormack (now on the Michigan Supreme Court) and I opened the clinic as the first exclusively non-DNA innocence project.  We have now exonerated seven men and two women.  I have two terrific staff attorneys, Imran Syed and Caitlin Plummer, and 25 students, each of whom work in the clinic for at least a year.

We’ve had two exonerations so far in 2014.  In January, Victor Caminata was exonerated after serving 5 years for an arson conviction out of Wexford County.  The house Victor was living in burned down, and the initial insurance investigator concluded (correctly) that the fire started in the chimney connected to the wood stove.  The Michigan State Police reinvestigated after getting an anonymous tip that Victor would know how to make a fire look accidental since he was a volunteer firefighter.  The MSP investigator spotted what he thought were signs that the fire started outside of the chimney.

We consulted with some of the nation’s top fire experts, who told us that the MSP investigation relied on methods that had long been discredited.  They concluded that the “signs” the MSP investigators saw were spurious and that this was, in fact, a chimney fire.  Faced with our experts’ evaluations, the prosecution threw in the towel.

Victor was our second arson exoneration.  David Gavitt was exonerated in 2012 after serving 27 years for arson and murder, and we have several more arson cases going.  Michigan has had a lot of fire investigators who regularly testified to “signs” of arson that have since been discredited, so we will have a steady stream of arson cases for years to come.

In September, Jamie Peterson was exonerated of a rape-murder in Kalkaska County after 17 years.  This ended up being our first DNA case.  The previous prosecutor had successfully fought to keep the DNA from being tested for 12 years, but the new prosecutor agreed to testing when we approached him.  The results not only excluded Jamie, but hit on a man who had been one of the original suspects.  That man will go on trial in December.  This is the first time that our work has resulted in the arrest of another suspect.

What I can’t get over about the Peterson case is that the former prosecutor knew the semen found inside the victim didn’t match Peterson but refused to test the DNA.  How could he justify refusing to find out whose DNA that was?  It’s a miracle that the real perpetrator did not, to our knowledge, commit any more murders while the prosecutor was fighting all efforts to identify him.

What role have experts played in achieving the success?

To take one example, we worked with Joe Filas in the Caminata case.  Joe is probably the nation’s leading expert on chimney fires, and he caused the prosecution to give up by proving that the MSP investigator had failed to rule out the most likely cause of the fire.
 
One of the things I love about my job is that I get to use my scientific background almost every day.  We have used some of the nation’s top experts to educate judges on shaken baby syndrome, time of death, serology, and ballistics, among many other disciplines.  Many experts, like Joe Filas, work for us pro bono because they are as outraged about the misuse of science in the courtroom as we are.

Have you noticed any significant trends in criminal jurisprudence in recent years?

I believe some judges have finally begun to realize that the criminal justice system is not perfectly accurate.  So we have seen an increased willingness to consider claims of actual innocence on post-conviction.

And the steady drumbeat of exonerations has also helped on the front end.  We’ve seen many states adopt reforms designed to present wrongful convictions, such as improved eyewitness identification procedures and requiring that interrogations be recorded.  New death sentences have dropped dramatically, and the most likely reason is that jurors, having seen news coverage of scores of death row exonerations, are demanding more certainty of guilt before imposing death sentences.

All of these changes are great, but we need so much more progress in other areas, particularly indigent defense reform.  I am convinced that the leading cause of wrongful convictions in Michigan is ineffective assistance of counsel.  And economics is the main reason why so many defendants in Michigan receive substandard representation.  We are one of only seven states in which counties pay the whole tab for indigent defense, and it’s no coincidence that those seven states have among the very worst indigent defense systems.  I hope that the new indigent defense commission will be able to improve local defender systems, but I firmly believe we need a statewide system to make real progress.

What advice do you have for defense practitioners, and what are some things defense lawyers – both trial and appellate – can, should, or must do to minimize the risk(s) of wrongful convictions?

In Michigan, many appointed trial lawyers lack the resources to perform an adequate investigation and put on an adequate defense, so the problem is largely structural.  That said, some of the wrongful convictions we’ve seen could have been avoided if the prior defense lawyers had just picked up the phone and called some of the witnesses listed in the police report or called up an expert.  Sometimes an adequate investigation can be performed in a few hours, but we see cases where counsel apparently made no effort at all.  Again, the real problem is that our system doesn’t provide the resources necessary for a good investigation, but I believe even an under-resourced attorney has to try to contact the key witnesses before trial.

Michigan Innocence Clinic website:  http://www.law.umich.edu/clinical/innocenceclinic/Pages/default.aspx.  Faculty and staff biographies:  http://www.law.umich.edu/clinical/innocenceclinic/Pages/facultyandstaff.aspx

by Neil Leithauser
Associate Editor
 

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