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Welcome to Be the Rain.

Inspired by increasingly apparent social injustice in the United States and concerns for growing societal unrest in any number of areas- the Be the Rain project started taking shape in early 2016.

The concept of Be the Rain is simple, yet exceedingly poignant and beautiful. Everyone is familiar with the ripple effect of a drop of rain on calm waters. While a stunning mental image, the effect of outgoing ripples are lost unless they interact with others. It is not until a steady to hard rain that we start to see the surface becoming a tempest and changing in appearance.

The status quo is fine for many. Some people dread change. Some head for shelter when a storm is approaching. Some see the need for change and can’t wait to dance in puddles.

Some people would like to be able to make it RAIN…

People in 2017 are becoming exceedingly disenchanted with government, law enforcement, our judicial system, and feel that inequities abound. This is not strictly an issue of the United States, but as we are based in the US many of our articles and focus will be there.

While one person cannot invoke societal change, together we can Be the Rain to wash away/ erode the ills that plague our society. It’s high time we start to change the issues we thought would be corrected when we were children.

It’s time to Be the Rain…

Latest Articles

All eyes on 7th Circuit over Dassey ruling

 

07.26.2017 by @51kikey

The 3 Judge panel from the 7th Circuit Court recently voted as to the admissibility of US District Magistrate Judge William Duffin’s ruling for Habeas relief relating to Brendan Dassey’s confession. We know the count was 2-1 in favour of Dassey. It is important to note that this 2-1 vote was in relation to the validity of the confession and not based on other factors raised by Dassey’s defence team such as ineffective counsel. I’m going to focus on Judge David Hamilton’s reasons for dissenting which begin on page 105 of 7th Circuit’s response to the State’s appeal.

Hamilton Dissent Beginning on Page 105- 7th Circuit Dassey Decision

Okay, don’t panic my head hurts too. Judge’s rarely waste words. If it’s there it’s meant to be and there is a specific reason for it. It’s all too easy to just read these documents fast and loose. It’s a mistake to do so. The devil is in the detail like someone once said. Hamilton opens up Dassey’s persuasions.

‘HAMILTON, Circuit Judge, dissenting. Brendan Dassey confessed on videotape that he raped Teresa Halbach, helped his uncle murder her, and then burned her body in a fire pit at his uncle’s junkyard. A jury convicted Dassey of those crimes, and the Wisconsin state courts have upheld the convictions. On federal habeas corpus review, however, Dassey has persuaded the district court and now my colleagues that his con‐ fession was involuntary and his convictions invalid. I respectfully dissent. We should reverse.’

Okay, we have Hamilton stating that his colleagues have been persuaded that Dassey’s conviction is involuntary. It would appear to me that the involuntary part of this comes from false promises made to Dassey from Tom Fassbender and Mark Wiegert. It could be argued that they threatened Dassey that if he did not tell the(ir) ‘truth’ he would never get out of the interrogation room. The irony being palpable I would still lean towards false promises being their main reasoning.

‘The Wisconsin Court of Appeals upheld the trial court’s finding that Dassey’s confession was voluntary in a succinct per curiam opinion that rejected that claim in two paragraphs. That was permissible.’

Legally permissible perhaps but showing arrogance in my opinion. Perhaps succinct in Hamilton’s. The next section is long but holds tightly within it Hamilton’s mindset.

‘Habeas relief from state court convictions is rare, reserved for those unusual cases where state courts abandon their obligation to enforce federal constitutional law. See id. at 102–03 (“If [the AEDPA] standard is difficult to meet, that is because it was meant to be. … Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.”) (citation omitted). No Su‐ preme Court precedent compels relief for Dassey. His petition should be denied. Rather than show how Supreme Court precedent requires habeas relief, the majority observes: “By surveying the Supreme Court cases on the voluntariness of juvenile confessions one can see how much the unique characteristics of both the defendant and the interrogation play into the assessment of voluntariness.” Ante at 36. For this reason, the majority writes, “other cases can only act as broad guideposts.” Id. That is exactly right, but that is also why we should reverse. Without a compelling showing based on Supreme Court precedent, habeas relief must be denied.’With Habeas relief being so rare at  State level it is not remotely surprising that case law is far less than abundant at an elevated Supreme Court level.’

It strikes me that perhaps reform is a dirty word in Hamilton’s dictionary. How can things change and improve without precedent? Lessons learned can only come about because of change in approach. Failure is a precursor to success and with it a prerequisite. A dogmatic approach can only lead to the stagnated judicial system that is and has been in place for too long. For me, Hamilton looks at the system and its fear of change over the individual. A backward way of thinking in my opinion. Hamilton’s statement below adds further to this.

‘Even if we were reviewing the admissibility of Dassey’s confession de novo, great caution would be warranted. The majority’s decision breaks new ground and poses troubling questions for police and prosecutors. It calls into question standard interrogation techniques that courts have routinely found permissible, even in cases involving juveniles.’

Yes, courts have routinely found ‘standard interrogation techniques’ permissible, this is the problem. I sure wouldn’t like to see those non standard techniques. Hamilton is quick to draw his line in the sand. Dassey is guilty. Guilty because of his confession seeing as there is no other evidence.

‘My colleagues describe the critical March 1, 2006 interview of Dassey as “intimidating and anxiety producing.” Ante at 83. I suspect the source of any anxiety Dassey felt was his guilt, not the circumstances of a relatively gentle and non‐coercive interview.’

To the point, which is good. Okay, it’s clear from this that Hamilton does not believe this to be a coercive interview. So with all due respect to Hamilton he believes that Dassey’s statement to Law Enforcement were all freely self determined? This worries me.

‘Many other factors weigh in favor of finding it was voluntary. The circumstances that have most concerned courts and that have contributed most to voluntariness jurisprudence—such as physical abuse, threatening behavior, or prolonged questioning—were simply absent here.’

Respectfully Judge Hamilton, the world should move on. If you honestly believe the only way to gain a false confession is to ‘bad cop’ the living daylights out of someone you need to go back for more education like many others involved in this case. Hamilton addresses Fassbender and Wiegert’s techniques whilst interrogating Dassey. Specifically their repeated ‘truth’ suggestions.

‘Never before has the Supreme Court or this court signaled that police bluffs about what they know may render a confession involuntary. Neither the Supreme Court nor this court has ever held, as the majority seems to believe, that an investigator’s vague assurances about the value of telling the truth may amount to fraudulent promises of leniency. Nor have we held that such statements must be viewed from the subjective perspective of the suspect, no matter how distorted his per‐ spective may be.’

Hamilton talks of ‘police bluffs’ and ‘vague assurances about the value of telling the truth’ not amounting to fraudulence. Whilst in essence true this should not be unilateral. The Judge’s final sentence perplexed me for its sheer lack of humanity.’Nor have we held that such statements must be viewed from the subjective perspective of the suspect, no matter how distorted his perspective may be.’

Well hell, I’m not sure I want somebody caring for my bonsai tree with a chainsaw. One thing I can tell you Judge Hamilton is that the Supreme Court certainly does require ‘special  caution’ when accessing the voluntariness of juvenile confessions. The distortion is from within yourself and not that of Brendan Dassey. With regards to this, you are for want of a better word simply wrong.

‘In one telling departure from AEDPA deference, the majority cites a law review article to observe: “Experts on confessions have noted that ‘though courts are reluctant to find that police officers have overwhelmed a child’s will by repeatedly admonishing the child to “tell the truth,” many children will eventually hear “tell the truth” as, “tell me what I want to hear.”’” Ante at 55‐56 (citation omitted). The majority then suggests that “Dassey found ‘the truth’ either by stumbling upon it or by using the information the investigators had fed him,” and asserts boldly that it is “impossible to read or view Dassey’s interrogation and have any confidence that Dassey’s confession was the product of his own free will rather than his will being overborne.” Ante at 56. The majority invites the reader to scrutinize Dassey’s confession with this “key” in hand. I read (and see) the evidence quite differently: Dassey’s confession appears to have been the product of a guilty con‐ science, coaxed rather gently from him with standard, non‐ coercive investigative techniques.’

Hold on;

‘Dassey’s confession appears to have been the product of a guilty conscience, coaxed rather gently from him with standard, non‐ coercive investigative techniques’.

I’m sure Mark Wiegert stated ‘Who shot her in the head Brendan?’ after some hours of ‘gentle’ coaxing hadn’t got the answers he so desired…. actually I know he did. It’s on tape to view unlike other parts of the interrogation Judge Hamilton.

Throughout the next few pages of Hamilton’s response to the State’s appeal, previous cases are cited as to why precedence should not be taken with regard to Dassey as to an involuntary confession. From my reading of this there is a clear reason. The Circuit Courts and in turn the Supreme Court are loath to set precedent. Although I wish for Dassey’s timely release, cases such as this need to be heard from SCOTUS down. Otherwise the system never changes and reform cannot come about. Hamilton cited an example that read,

‘In Carter v. Thompson, 690 F.3d 837, 839 (7th Cir. 2012), we denied relief to a habeas petitioner who at age sixteen en‐ dured an interrogation lasting fifty‐five hours in total. During gaps in the interrogation, the petitioner slept on a bench, with‐ out a pillow, a blanket, or a change of clothes. Id. at 841; see also Murdock v. Dorethy, 846 F.3d 203, 210 (7th Cir. 2017) (deny‐ ing relief to sixteen‐year‐old who was interrogated over seven‐hour period); Gilbert, 488 F.3d at 784–86 (denying relief to fifteen‐year‐old who was kept from his mother and inter‐ rogated over nine‐hour period); Hardaway v. Young, 302 F.3d 757, 766 (7th Cir. 2002) (denying relief to fourteen‐year‐old who was interviewed over sixteen‐hour period and aban‐ doned for lengthy intervals in interrogation room)’.

Granted, I do not know the full details of this case but the use of this example came across as ‘There was no concession here so do you believe you should be re-evaluated?’ This worries me. I have been highly critical of Judge Hamilton during this evaluation and by no means shall I be changing tack now. However, perhaps it is time to take a step back and look to the horizon for a little more perspective. Hamilton’s dogmatism is clearly born from the law of the land itself, from the Supreme Court down. Often I find it hard to locate the individual within the position that he holds and herein the problem breeds. Hamilton’s reticence over setting precedent suffocates the possibility of change regarding juvenile confessions. Past case law will forever be applied unless updates in techniques and understanding is taken on board and utilised.

Sometimes the t-shirt just doesn’t fit anymore. Understanding evolves and so must the judiciary system, and with it practices nearer to the origins such as Law Enforcement procedure. Can Law enforcement interrogation techniques be improved? Sure, and with that it can certainly be augmented in terms of specificity to the person involved. I realise that the Supreme Court advises ‘special caution’ when assessing the voluntariness of juvenile confessions but there does not appear to be a great deal of case law to back this up filing down from the top. I shall come back to this during conclusion with regards to Brendan.

Back to DH’s assessing of the 2 votes in favour of Dassey.’Having replaced deference to the state court with what amounts to de novo review, and having redefined what counts as a false promise of leniency, the majority evaluates Dassey’s confession in the light most favorable to him. The majority opinion highlights the moments when Dassey seemed most hesitant or ambivalent.’

Indeed it is quite clear that Judges Rovner and Williams strongly disagree with the State’s interpretation of the confession but to say; Having replaced deference to the state court with what amounts to de novo review, and having redefined what counts as a false promise of leniency smacks of arrogance and will no doubt render Hamilton with the squeaky chair in the office. Yet again Hamilton vehemently argues that precedent must not occur because it has not done before. For him though his comments become flaccid as clearly reform does indeed need to take place.

The final few pages of Hamilton’s response deal with Dassey’s ‘specific’ and ‘incriminating’ responses to Fassbender’s and Wiegert’s questions. Hamilton does not offer any bridge between physical evidence and confession. He asserts that Dassey stabbed Teresa Halbach in the stomach ‘ a detail he repeated several times.’ inferring that because of this it be voluntary and in turn the truth. The simple fact that the physical evidence strongly refutes these turn of events and that physical evidence should be considered foremost over that of a confession appears to escape Hamilton. Citing that the remains can offer no evidence to this occurring because ‘The condition of Teresa’s remains made it impossible to confirm or refute that fact.’ begs the question. Avery’s trailer still remained though didn’t it? The crime scene itself. Hamilton concludes;

‘All agree that the governing constitutional standard for the voluntariness of a confession depends on the totality of the circumstances. The state courts recognized that standard and applied it reasonably to the facts before them. As in most cases on voluntariness of confessions, relevant factors point in conflicting directions. A few factors and passages from Dassey’s confession support the majority’s view that the con‐ fession was not voluntary. Many other factors and passages support the state courts’ view that, overall, the confession was voluntary. The Wisconsin Court of Appeals could have been much more thorough in its discussion, but its conclusion was within the bounds of reason. It was not contrary to or an un‐ reasonable application of controlling Supreme Court prece‐ dent. We should reverse the district court’s grant of the writ of habeas corpus.’

Hamilton’s acknowledgement to the fact that the many outweigh the few with regards to Dassey’s voluntariness of confession is of no surprise and we are left with a very clear cut 2 in favour and 1 not so. Due to this I wonder if it will have any bearing on the en banc decision.I’m well aware that this is rare and not often undertaken, but I am also aware of the publicity that this case has rendered and the ability for it to stir the public’s imagination. Kathleen Zellner’s use of Twitter has often been derided, especially by those within the legal fraternity. Clearly, many employees within that system would rather a closed shop. After all, what has the legal system got to do with the people?! I believe Zellner’s use of Twitter engages the public and for that I think it’s a big step in the right direction. The public should take an interest as even a basic level of knowledge across the board will help evoke change within the justice system.

Lastly and somewhat controversially I want to go back to Brendan and where his case stands at the moment. I want Dassey home as quickly as possible and every day that he remains behind bars prays on my mind I can assure you. At the same time though I want change and whilst the decision at Circuit Court level has set precedence and with it citation in common law I believe and want a case such as this to go further. I would welcome the Supreme Court to hear this inevitable appeal. Naturally I want Brendan released on bond until this could occur as likely it would be some ways down the road. Most, if not all of us have gone through a myriad of emotions when following Brendan and his case. Sadly the bottom line is that Dassey is just one of hundreds if not thousands of cases bearing similarity. It is not just those that have already been convicted by asinine LE procedures and outdated case law and judges, but those that could be in the future.

Cases in the spotlight such as this do not come along often and because of that the chance of reform at the highest level needs to be taken.

In the case of John David Brookins:

 

 

In a Pennsylvania Superior Court decision dated September 5th, 2013, the court denied John David Brookins an appeal for his pro se Motion for Post-Conviction Relief (PCR). The court upheld the trial court’s denial based upon jurisdiction, timeliness of claim, and ineffective trial counsel. In that decision, the court described the murder of Sheila Ginsberg as follows:

On July 7, 1992, a jury convicted Appellant of first-degree murder. Appellant’s conviction stemmed from the December 20, 1990 killing of Sheila Ginsberg, the mother of Appellant’s girlfriend, Sharon Ginsberg. The victim’s body was discovered “lying partially on the couch [in her apartment] with a pair of large scissors embedded in her chest.” PCRA Court Opinion, 12/31/12, at 2.1 An autopsy revealed that the victim was not only stabbed in the chest, but also had “eight significant internal injuries, including skull penetration consistent with an object such as scissors, protruding wounds, and bone fractures.” Id. at 6. The forensic pathologist further stated that the victim’s hyoid bone had been broken, opining that she had likely been strangled.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

Scant details exist online of this now 25-year-old crime. What we do have is a much different version of events in Bucks County, Pennsylvania in 1991-2, and a man claiming from day one that he was wrongfully convicted.

Bucks County, Pennsylvania, is north of Philadelphia and bounded by the Delaware River to the southeast. The area occupies roughly 600 sq. miles within a triangle between Philadelphia, New York, and Allenton. At first glance, this area of the Country appears to be a sleepy rural landscape nestled within the rolling countryside once home to some of the framers of the U.S. Constitution. Serene appearances can be deceiving. Drugs, prostitution, and murder can and do happen in unexpected places.

John David Brookins has from the beginning named Sharon Ginsberg, (an acquaintance  at the time, not girlfriend as alleged by police and prosecution) as the real murderer. Sharon Ginsberg is the daughter of the deceased and though evidence pointed to her, was never investigated. Mr. Brookins points to evidence that includes law enforcement cover-up, fabrication and suppression of evidence, police misconduct and beatings during interrogations, three corrupt detectives, at least one of which was involved dealing drugs/ running a prostitution ring (one of the alleged prostitutes was Sharon Ginsberg), and prosecutorial malfeasance.

I have read Mr. Brookins explanation of the events surrounding the murder and while I do not in any way claim to have all the facts, I believe there is a story here that needs further investigation. Mr. Brookins accounts of the time leading up to his arrest and after are to be found in his Habeas pleading here:

https://johnbrookinsdotcom.files.wordpress.com/2016/03/facts-for-the-website.pdf

 

Brookins claims money and drugs are the motive for Sharon Ginsberg to have killed her mother. Whomever killed Ms. Ginsberg, it appears this is at least true.

At first reading, I was left with several questions. Brookins describes law enforcement having criminal involvement in this case.

It appears at least one of the named detectives, Alfred Eastlack was later raided for drugs on the strength of an FBI investigation that cost him his job.

  • It appears there are Brady violations over the gloves provided investigators, that were never DNA tested.
  • According to Brookins, stories have changed and multiple people have come forward stating Sharon admitted killing her mother, not Brookins.
  • Fired detective Eastlack and daughter of the victim now reside in Florida (according to Brookins).
  • Red flags over time considerations that have dogged this case from the beginning. The Trial Court delayed depositions and procedures to the point that it was called out by the Superior State Court.

At this point, I think it’s important to look at who stood to benefit most from the death of Sheila Ginsberg. If you read Mr. Brookin’s position, you will see a myriad of players and motivations. Let’s be honest here; there was apparently a lot of illegal stuff going down at the time. On both sides of the badge.

We are not here to address blame or guilt/ innocence. In fact, I chose this case as the test because I am unsure myself. I am not advocating for Mr. Brookins at this point. I do, however, think he has a very good case for due process. The problem in this case is the scattershot method jailhouse lawyers are forced to utilize in an attempt at justice,

Brookins is a prime example of someone that educated themselves (legally speaking) behind the Gray Wall. Reminiscent of Ryan Ferguson, I see a person in John Brookins that has used his time inside the system to improve himself and others. Both physically (he has developed an exercise regimen inside) and intellectually/ spiritually. I see a person that has maintained their innocence.

This writing is the first in a series. We hope to bring new cases to the public and to shine the light on wrongful convictions. Is Brookins guilty? I don’t know. What I do know is this: If you read through the case history as it exists: you are left with HUGE questions. It is apparent to me that the State once again covered up law enforcement misdeeds. This is a go-to play considering the avalanche of wrongful convictions disgracing our land. It is also apparent the state stalled/ refused to test evidence that would prove exculpatory.

We, as a society, can no longer accept substandard police work or a justice system hell-bent on convictions over TRUTH. The fight is bigger than Mr. Brookins- We all need to look at this man and his situation as motivation.

No one left behind.

 

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Melissa Calusinski & The Game Of Accountability

07.21.2017   by @51kikey

Lake County in the State of Illinois is aptly named. No fewer than 93 lakes are contained within its borders and two-thirds of the county is in fact made up of water. Hidden away on the far North Eastern rim of Illinois, Lake County lives up to its geographic of being anything but watertight.

Melissa Calusinski, a graduate of Barrington High School spent four years as a nanny and during that time earned high praise from children’s parents to which she cared. Calusinski went on to work for Minee-Subee Daycare Centre in Lincolnshire, Illinois where she was tasked with looking after pre-school children. Events would take a tragic turn. On the 14th of January 2009, 16-month-old Benjamin Kingan was found unresponsive in his bouncy chair. Foam and blood were found coming out of his nose. Only 1 hour later Benjamin was pronounced dead at the hospital before his parents could see him. The 22-year-old Calusinski was questioned on January 16th and denied hurting Benjamin 79 times to investigators. However, after an interrogation that lasted over 9 hours she confessed to slamming Kingan’s head on the ground in anger.

Calusinski was found guilty of first degree murder and battery of a child in 2011, her sentence set at 31 years. During her trial, testimony as to Benjamin’s fractured skull was heard and along with Calusinski’s confession the jury found her guilty after deliberating for a little over 7 hours. Much has been made of both pieces of evidence. Calusinski’s confession draws parallels with that of Brendan Dassey of ‘Making a Murderer’ fame. The x-rays, of Benjamins skull handed over to the defence team were useless as to their quality and thus testimony was taken as fact. When enhanced copies of the same x-rays arose that showed no skull fracture, said testimonies were themselves brought under the spotlight.

I’m not going to delve into  the minutiae of the court case and its findings but please look into Kathleen Zellner’s (Chicago based exoneration specialist and attorney representing Calusinski) Brief for detail.  http://medicalschoolpathology.com/MelApp.pdf

Former Lake County Coroner Dr Thomas Rudd raised questions as to the validity of Kingan’s autopsy and evidence henceforth. In fact Rudd testified on behalf of Calusinski in a recent evidentiary hearing regarding her request for a new trial. Rudd has a history of speaking up against possible misdemeanors carried out by those in power. Unsurprisingly, rocking the boat has attracted attention. The powers that be indicted Rudd on 5 counts of perjury in February of this year citing lies regarding nomination petitions. 3 months later Zellner filed her brief. The timing of Rudd’s indictment is not lost on me but take from it what you will. The only mistake made by Rudd in this writer’s opinion was to run for re-election back in 2016.

http://www.dailyherald.com/article/20170215/news/170219261/

Lake County is not averse to having to pay out huge sums in damages. Juan Rivera was awarded 20 million dollars in a settlement in 2015 for a rape and murder he did not commit. Rivera spent 20 years in prison for those convictions.

http://www.chicagotribune.com/suburbs/lake-county-news-sun/crime/ct-rivera-lawsuit-settlement-met-20150320-story,amp.html.

Lake County certainly does not wish to be paying out another multi-million dollar lawsuit any time soon. That decision will most likely will be taken out of their hands in the future. Zellner has requested Oral Arguments in her May Brief filed with the 2nd District Appellate Court in Elgin Illinois. Whilst the State has since requested an extension, news should be heard within the coming weeks. Certainly within the next couple of months.

With the heartbreaking story of a 16-month-old child’s death, how easily can a tragedy be overcome without the apportion of blame? Valuing accountability over truth to attempt to find a reason for the death can only amplify the tragedy that has taken place. With Benjamin Kingan, accountability came to the fore, and with it came concealment of evidence and the undertones of control.

Benjamin’s was a case very much heard by the citizens of Lake County Illinois and now further afield. Murder fills the pages and screens of our media outlets on a daily basis. Yet the death of a 16-month-old boy will prick the senses of even the most apathetic and detached spectators. What makes one case more emotive than another and coercive can lead to clouded judgement and the need for culpability. The crying out for blame followed. It being not for justice but for appeasement and closure.

Whether or not Benjamin’s death could have been avoided is not a route I am willing to explore within this article. What I am willing to discuss is the single mindedness of prosecutors when attempting to gain a conviction. There is no possibility of a change of mind once the process of trying a suspect has begun. Apportioning blame is the agenda whether evidence points towards said blame or not. In this case when the evidence did not fit it was altered. If the physical evidence is not permissible, then the testimony of a State witness is opined in its place. It’s very difficult to feel a skull fracture when there is not one present however. Now that we have been enlightened with the physical evidence such testimony will be brought into question. Fortunately these questions will have to be asked. Whether it be in the next few months or further on down the road, this case will be heard. The State is loath to defer previous rulings and this case may end up being heard by that of a Federal Court.

All the time Melissa Calusinski remains in prison knowing her innocence.

 

Brady be the new buzzword:

07.18.2017   by @51kikey

 

Speaking to an ex-friend a week or so past I asked them if they felt ignorance or apathy was the greatest danger to our society. Their response that they didn’t know and didn’t care sealed our relationship. Fortunately it appears my ex might just be in the minority of late.

Justice, or should I say Injustice is all the rage and the blame game is running at an unrelenting pace. Public opinion relating to bent cops, shady lawyers and stacked Courts has never been such a hot topic, certainly not to the layman anyhow. Within the legal arena however it is a prerequisite of the system, a byproduct of the human condition. Holding a job of great responsibility does not guarantee purity of intentions. Up until recently there has been a general sweeping under the carpet of discrepancies and unlawful behaviour by those charged with keeping the peace and running a law abiding society. Things change, and public access and in turn scrutiny is now at a level where reform needs to materialize.

Enter Brady, he’s been here since 1963 and passed to protect the defendant against forgetful, unscrupulous or perhaps even unknowing prosecutors. [Brady vs Maryland](https://supreme.justia.com/cases/federal/us/373/83/case.html) delved into the due process of the 14th amendment and defendants were from then on protected from prosecutors withholding exculpatory evidence from the defence. Easy to sidestep you might say but the prosecutions knowledge of this evidence does not need to be known for Brady to occur. This is surely just though, as any new evidence that comes forward which is favourable to the defendant should be known? Here we have our first grave problems. That problem being timing & in turn precedents.

The odd unexpected exoneration, whilst remaining rare can actually look good for the State that they befall upon. It evokes the human spirit of acceptance that one can make a mistake, even if that one is the powers that be. A just system rights its wrongs and compensates the afflicted. There is legislature in place to protect against wrongful convictions and this said legislature is enforced. However what happens when 1 case becomes 10 and then exponentially grows? The financial ticking time bomb is ticking down for each and every State in the land. Perhaps it’s time to change the laws.

The [‘epidemic’](http://www.abajournal.com/news/article/epidemic_of_brady_violations_decried_in_kozinski_opinion) has arrived and it continues to grow. A recent vote by the Supreme Court regarding [Turner vs United States](https://thecrimereport.org/2017/07/14/how-concealing-key-evidence-convicts-the-innocent/?utm_content=buffer848ec&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer) saw Judges vote 6 to 2 in favour of upholding the conviction. With media sources acting as the babysitter for the hierarchy, expect a backlash soon. It’s just not feasible to have exonerations become commonplace.

So how can the emerging crisis be dealt with on a practical level. Accountability for prosecutorial misconduct would certainly be a start. Where the sole aim for many is to win and justice is a mere nuisance holding prosecutors criminally liable is a must. The river flows downwards and possible LE misconduct would be stemmed to a certain degree with the enforcement of a stricter hand being shown towards prosecutors.

Here we encounter the rub though. How do we differentiate between the lawyers that intentionally evoke Brady and those that don’t. Nothing is black and white within the reading of the law. Brady strictly states that an exclusion of evidence need not be known for a violation to occur which can, and does put the State in a tight spot. As we have seen from The Supreme Courts rulings regarding Turner though Brady Violations are not strictly upheld for a number of reasons. The case in point being that the withheld evidence was immaterial to the original conviction as to that of a mob committing the crime and that is just one of many reasonings that could have been made.

Still, the harsh truth is that the legal system is being scrutinized like never before and that scrutiny is by Joe Public. Sure, Law Enforcement have been derided before and lawyers have often been the buck of a barbed joke or two but the general perception was that of hard-working decent people doing the best for their communities. Not anymore. Everyone law related is under the microscope and they are being assumed guilty before innocent. Some of this has been brought upon themselves, indeed but as often is the case, the backlash is very unforgiving. Angela Davis summed it up best for me over 10 years ago and I’ll just straight up quote her rather than paraphrase. To do so would be an injustice.

When the law is broken by the very people the public trusts to enforce the law, meaningful action must be taken. Prosecutorial misconduct is widespread and unchecked, and it is unlikely that either the courts or the general public will take action to eliminate it. Prosecutors certainly have not policed themselves. Thus, the legal profession must take the lead in instituting meaningful reform that will assure oversight and strict accountability when prosecutors break the law. Although criminal lawyers in individual cases may not have the ability to affect meaningful reform, other lawyers, through local and national bar associations, should advocate for legislation and binding professional rules that will be enforced against wrongdoers. Lawyers have a vested interest in improving the reputation of the profession and in the fair administration of justice for everyone. They also have the expertise to institute reforms and the responsibility to eliminate what has become a shameful epidemic of misconduct among prosecutors.

The full article is [here](http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1001&context=clb) and points to many of the same problems that are inevitably still with us now. The saving grace might just be that now the audience has grown and justice reform is picking up pace. I just hope that it is going in the right direction. With the likes of Kathleen Zellner bringing these issues to the masses via up to date mediums such as Twitter the future might possibly be looking brighter. Without the people taking an active interest what right should they have to complain?

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