By Kelli M. Evans

Every year tens of thousands of people in California are arrested for simply possessing small amounts of marijuana. These arrests overload our already stressed courts and jails. They also divert scarce public safety dollars that could be used to address violent crime. California’s Proposition 19, on the November 2010 ballot, offers a remedy that will move marijuana policy in a direction that makes sense.  The California Legislative Analyst’s Office explains that the passage of Proposition 19 would allow redirection of court and law enforcement resources to solving violent crimes.

The ballot measure would allow adults age 21 and older to possess and grow small amounts of their own marijuana for personal use, and would allow cities and counties to regulate and tax commercial sales. Unless individual cities and counties enact local regulatory structures, marijuana sale would remain illegal under state law. Similarly, driving while intoxicated will remain against the law, and employers will retain the right to regulate drug use on the job.

Proposition 19 has a growing coalition of support. The three California affiliates of the American Civil Liberties Union recently announced their endorsement of the initiative and join a broad coalition of this common sense approach to controlling marijuana, including former U.S. Surgeon General Jocelyn Elders, the California NAACP, labor unions, and law enforcement officials from around the state.

Enforcement of marijuana prohibition laws consumes California’s police and court system resources, and has a devastating disproportionate impact on communities of color. In 2008 alone, California police made 60,000 marijuana possession arrests, the majority of them young men of color. The arrests don’t indicate actual marijuana usage. A new report from the Drug Policy Alliance reveals distinct racial disparities in California arrests for low-level marijuana possession. Data in the report reveal that African Americans in California are more likely to be arrested for marijuana possession than whites, but more white youth use marijuana than black youth. Other reports, including a study out of Seattle, show that whites sell drugs at similar – and possibly higher – rates than African Americans.

In Los Angeles County alone, the marijuana possession arrest rate of African Americans is more than 300% higher than the same arrest rate of whites, although blacks made up less than 10% of the county’s population, according to the DPA report.

The significant racial disparities in marijuana possession arrests have serious consequences, for young men of color in particular. The impact of a misdemeanor conviction for marijuana possession creates barriers to finding a house, a job, and even a school loan.

We need a solution that will work.  By regulating and taxing marijuana for adults, Proposition 19 is a step in the right direction.

Kelli M. Evans is Associate Director at the ACLU of Northern California

by Jennifer Thompson-Cannino

March of 1995 began like any other month for me.  The days were filled with chasing soon to be five year-old triplets, washing hundreds of pounds of laundry, kissing skinned knees and picking up toys, until the phone rang.  Captain Mike Gauldin, the detective who worked my case after a man broke into my apartment when I was a twenty-two year-old college student and raped me at knifepoint in Burlington, N.C. wanted to come see me with Rob Johnson, then the assistant D.A. of Alamance County.

They arrived before lunch and we sat on the deck enjoying the spring sunshine.  We talked about the weather, the kids, current events, and then quickly the topic changed. Ronald Cotton, the man sent away for life for attacking me, wanted a DNA test. They needed new blood drawn because my sample from the eleven year-old rape kit had deteriorated.

I had already sat through two trials and I was furious, but I didn’t hesitate. “Let’s go to the lab right now,” I responded. Within hours Mike Gauldin and Rob Johnson were headed to the SBI labs with my vial of blood. I knew the tests would show what I had known all along: that Ronald Cotton was a monster. It was Ronald Cotton who threatened to kill me, who had chased me through the rain that night while I fled for my life.  And it was Ronald Cotton who I saw every night in my nightmares, who I prayed God would have killed, and who I hated each and every day of the last eleven years.

But when Mike Gauldin and Rob Johnson stood in my kitchen in June of 1995, they told me we were wrong.  It was not Ronald’s DNA found in the rape kit, in fact, it was a man named Bobby Poole, a serial rapist who had attacked and raped over a half dozen other women that summer of 1984.

With the delivery of the DNA results came an overwhelming shame and guilt. My mind began to question everything I had believed in. I pulled away from the world as I knew it; I had no answers.  Over four thousand days of a man’s life were gone and nothing I could do would ever change that.  Eleven birthdays, eleven Christmas mornings-gone. I placed the burden on my shoulders and began the slow process of moving through my days.

By the spring of 1997, the psychological toll forced me to act. In a small church no more then a few miles from where I had been brutally raped, I met Ronald and struggled for words I could say to him. How completely inadequate “I’m sorry” seemed.  As Ronald and his new wife, Robbin, came into the room I began to cry and shake. “Ronald, if I spent the rest of my life telling you how sorry I am it wouldn’t be enough,” I said. Ronald immediately took my hands and replied, “I forgive you.  I want you to be happy and live a good life.  Don’t look over your shoulders thinking I will be there because I won’t.”

For the first time, I looked into Ronald Cotton’s eyes and saw a compassionate man who gave me a gift of healing by forgiving me. I also saw a victim of a flawed system. If California’s Senate Bill 756 can help fix that system by putting better practices and procedures into place for eyewitness identification, we reduce the risk of wrongful convictions and mistakes like the one I made. A mistake I never saw coming.

Jennifer Thompson-Cannino lives in Winston-Salem, N.C.  She is currently working on PICKING COTTON with Ronald Cotton and writer Erin Torneo.  It will be published by St. Martin’s Press in 2008.

By John Van de Kamp

Health care reform hasn’t made it to the Governor’s desk this year, but 3 crucial public safety bills have. Governor Schwarzenegger has the opportunity to sign landmark legislation that would help prevent wrongful convictions in California, and make this state a leader in addressing a serious nationwide problem.

How serious is the problem? When the innocent go to prison, the guilty go free. That is a very serious public safety problem. And it happens more often then most people think.

Just recently, Stephen Colbert interviewed the 200th DNA exoneree, Jerry Miller. Colbert gave him a card on behalf of “society” saying “Sorry.” Here in California, Herman Atkins spent 12 years in prison for a crime he didn’t commit. Here is Herman Atkins’ story:

Harold Hall spent more than 19 years in prison, and was nearly sentenced to death. Over 200 other wrongfully convicted men and women have been exonerated by DNA evidence, but all too often these errors could have been avoided. Now Governor Schwarzenegger has a chance to show Colbert and the nation what we can do: California can do more than saying
“Sorry.”

Commentators from both sides of the aisle are supporting these bills for just the same reasons: they address glaring problems that need repair, and they protect public safety.  By signing these bills, Governor Schwarzenegger will help law enforcement solve and prosecute crimes, while also protecting the innocent from wrongful conviction.

The California Commission on the Fair Administration of Justice, a group established by the Senate to study the most serious problems with the criminal justice system, recommended all three of the reform measures now before the Governor.

In 2006 I was asked by the Senate to Chair the Commission, no doubt because of my curriculum vitae, which included terms as California’s Attorney General, L.A. County D.A. and as California’s Central District’s first Federal Public Defender.  So I have some perspective from both sides of the court room.  I agreed to take on the assignment with the stipulation that I would receive support to balance the Commission so that all sides of the criminal justice systems had strong and fair representation.  The result is a Commission whose members include law enforcement officers, prosecutors, defense attorneys (public and private), a victim advocate and public members.

The Commission has issued a series of reports dealing with Eyewitness Identification, False Confessions, Jail House Informants Testimony, DNA Evidence Processing, and Forensic Evidence.  Now we’re looking at Prosecutorial and Defense Misconduct and Incompetence.

The Legislature has passed three bills dealing with the Commission’s early
recommendations:  SB 511, 609 and 756 represent the most basic and most urgently needed changes.

As I write this, the post-arrest recorded interview of Senator Larry Craig has hit the press, circulated around the blogosphere, and produced heated discussion among the public.  The recording includes a confession to a crime that Senator Craig now says he did not commit.  No doubt that tape will prove central to the consideration of Senator Craig’s claim, since it will provide incontrovertible evidence of what both he and law enforcement said.

Coincidentally, just last week the California legislature passed a bill, SB 511, which would mandate the recording of custodial interrogations to prevent wrongful convictions based upon false confessions.  The bill has now been sent to Governor Schwarzenegger. 

To most, falsely confessing to a crime seems counterintuitive.  It is hard to understand — barring outright torture – why a sane and intelligent person would admit to a crime that he did not commit, especially if the confession could yield a lifetime prison term or even a death sentence. 

As a law enforcement officer with 24 years of experience with the Metropolitan Police Department of Washington, D.C. (13 of those as a homicide detective), the phenomenon always eluded me too.  Until someone provided a false confession to me. 

It was a homicide case.  I used nothing but standard, approved interrogation techniques and did not act maliciously.  There was no yelling, no physical abuse and no cursing.  We went into the interrogation room with the belief that we had evidence linking the suspect to the crime and we came out many hours later with a confession.  Thankfully, we started the video early on and chose to keep it on for the duration of the interrogation. 

On the basis of the confession, the case progressed. Even the defendant’s defense attorney believed that she was guilty because of her confession.  We hit a wall when, during our follow-up work, we discovered her alibi.  It was ironclad.  Even though the case was dismissed, we all still believed that she was guilty.  Why else would she confess?  How did she know the details that she did?

Years later, during a review of the videotapes, we discovered our mistake.  We had fallen into a classic trap.  We believed so much in our suspect’s guilt that we ignored all evidence to the contrary.  To demonstrate the strength of our case, we showed the suspect our evidence, and unintentionally fed her details that she was able to parrot back to us at a later time.  Contrary to our operating procedures at the time, my colleagues and I chose to videotape the interrogation.  This is what saved me from making a horrible mistake in the long run.  It was a classic false confession case and without the video we would never have known.

Now I teach a class on interrogations and false confessions.  In my ongoing discussions with law enforcement nationally, I find that investigators fall into one of two camps – those who do not record and oppose it; and those who do record and endorse the practice.

Those investigators whose departments do not record interrogations say that mandating the practice will be the end of the world.  We have found in D.C., though, that many of these issues were overcome by working with lawmakers.  California SB 511, for instance, mandates recording only in police facilities for specific – and not all – crimes, just like we have in D.C. 

And unlike our D.C. law, the California bill is friendlier to law enforcement, making allowances for situations where videotaping is impractical.  In D.C., if a detective fails to record for whatever reason, the prosecutor must overcome the presumption that the confession was coerced.  The California bill, on the other hand, still allows the confession to be used. The California bill also allows audio recording, while in D.C., videotaping is mandatory.

Law enforcement officers that record interrogations love it. They have found that they still get confessions, but that those confessions are much easier to defend in court.  They also mention unexpected benefits: detectives are made better interviewers; suppression hearings are almost eliminated; large civil settlement payouts to the wrongly convicted are avoided; and public confidence in law enforcement increases. 

Recording of interrogations from start to finish as directed by California’s SB 511 is the right thing to do.  Failure to use cheap and available technology to build strong cases against the guilty and to protect the innocent is wrong.  Recording interrogations needs to be mandatory, with rules and sanctions.  If sanctions are not in place then public confidence is undermined by the few unscrupulous among us.  When videotaping was first forced upon us by the D.C. City Council, we fought it tooth and nail.  Now, in the words of a top commander, we would not do it any other way.

Regardless of whether the public is considering a Senator’s political future or a judge or jury is debating the guilt or innocence of a person facing serious charges, opinions should be shaped by the best available evidence.  Recorded interrogations are simply a critical source of truth. 

Governor Schwarzenegger, please sign SB 511.

Please visit the ACLU of Northern California’s action alert and help end wrongful convictions.  Also, please visit http://www.facesofwr…

Jim Trainum is a detective with the Metropolitan Police Department in the District of Columbia and currently runs a cold case homicide review project.  He also lectures on Interrogation and False Confessions as well as Avoiding Investigative Pitfalls. 

By Harold Hall

Last month, I celebrated an untraditional anniversary.  August 17, 2007 marked my third year of freedom from wrongful imprisonment.  I spent nearly twenty years in prison for a crime I did not commit.

I think people want the assurance that something like this couldn’t happen to them.  I wouldn’t wish the unique nightmare of wrongful conviction on my worst enemy, but I cannot provide this guarantee to anyone.  That is because many of the methods and procedures that were used to secure my conviction are still allowable under California law.

In 1985, I was convicted of a double homicide.  There wasn’t a smidgeon of forensic or biological evidence that could connect me to the two slayings.  Still, police zeroed in on me.  They brought me to an interrogation room, where I was handcuffed to a chair, denied food, water, and the use of a restroom.  They told me they had evidence of my guilt, including fingerprints, blood and semen.  The more I denied my involvement in these murders, the harder they pushed.  Seventeen long hours later, I was mentally drained and told them the story they clearly wanted to hear.

By the end of this ordeal, I had technically “confessed” to the crime.  It didn’t matter that the “confession” I provided contained many inaccuracies.  It didn’t matter that the information that I provided to the police — thinking at the time that it would end the traumatic interrogation process – didn’t line up with many of the details of the crime.  They had their man, although I hardly felt like one.  I was only eighteen years old!

I was carted off to jail.  I was scared for my life.  Every day was a living hell.  I was told when to use the phone, when to shower, when to recreate.  I was under constant watch.  Often I was pulled from my freezing cold cell in handcuffs, wearing only boxer shorts so that they could conduct cell searches.  I was forced to watch, defenseless, as Corrections Officers went through my belongings, pouring out the contents of bottles, ripping up family photos, destroying objects that sustained me during those endless years.  During lockdowns, which could last months, we were forced to take “bird baths” in the cell sink because we were not allowed out of our cells.

But I knew I was innocent and that I would be vindicated at trial.  I knew that my lawyer would be able to explain why I provided a false confession.

Then I learned that the prosecution was planning to use the testimony of Cornelius Lee, a jailhouse informant, at trial.  Lee and I had passed two handwritten notes while in jail. Lee took those notes, erased the questions and re-wrote them so that I appeared to incriminate myself.  Once I learned the prosecution planned to use the testimony of a liar, a man who was hoping to get better treatment at my expense, I was crushed and demoralized. 

Despite all of this, I never gave up hope, even when I was convicted and they sought the death penalty.  At the penalty phase, I told the jury I was innocent; they sentenced me to life without parole.

I am free today, but prime years of my life were stolen from me.

There are two bills on Governor Schwarzenegger’s desk right now.  Senate Bill 511 would require the electronic recording of police interrogation in cases involving homicides and other violent felonies.  Senate Bill 609 would require that testimony given by jailhouse informants be corroborated.  If these laws were in place when I was facing those horrific charges, I would have been spared nearly two decades of suffering.  And without these laws, this could happen to other innocent people.

California is primed to do the right thing.  It can ensure that juries are exposed to the most reliable and accurate evidence available.  That is why I urge the Governor to sign these bills.  That way when people ask, how could this happen? I can reassure my fellow innocent Californians that we are doing everything we can to make sure it doesn’t happen again.

Please visit the ACLU of Northern California’s action alert and help end wrongful convictions.  Also, please visit http://www.facesofwrongfulconviction.org/.

–Harold Hall lives in Los Angeles and works for the Los Angeles County Bar Association.