Spolin Law Client Walks Free Hours After DA George Gascon Dismisses Murder ChargesPublished on February 2, 2021
Yesterday a Spolin Law client tearfully reunited with his mother after a long period of imprisonment for a murder he did not commit. The dismissal was formally handed down by Judge Shellie Samuels of Department 112 in Van Nuys Courthouse.
The murder dismissal came about in great part because of the newly-elected District Attorney, George Gascon. Mr. Gascon had campaigned on a promise of criminal justice reform, and he has been quick to implement a series of “special directives” that show increased compassion for inmates and criminal defendants.
This case had already received significant media coverage for Judge Samuels’ earlier decision to reject the DA’s attempt to dismiss the gang enhancements. (See media coverage: Judge Opposes Gascon’s Reforms, Los Angeles Daily News, 12/17/20. Gascon Blacklists Judge for Policy Noncompliance, Fox 11 Los Angeles, 12/16/20). The judge eventually gave in on the dismissal of the gang enhancements and then, yesterday, agreed to dismiss the entire case.
The client owes a great deal to his mother, who was an absolute fighter and never gave up on him. She had retained Spolin Law for her son’s case and encouraged the firm’s aggressive practice of filing extensive legal motions in court.
As attorney Jeremy Cutcher pointed out: “I’ve never seen a mother so involved in her adult-son’s case. And in the end, she got what she was fighting for. It’s wonderful to see.”
To speak with Mr. Cutcher, Mr. Spolin, or any attorney at Spolin Law about your own case, call us at (866) 716-2805.
What is a Certificate of Rehabilitation?Published on December 14, 2020
A criminal record simply makes your life harder. It may prevent you from being hired, getting an apartment, obtaining a professional license, qualifying for government programs, and receiving student loans. Criminal records usually are publicly available and easily found.
There are some ways to improve your situation. If you are eligible, Spolin Law P.C. can assist you in obtaining a Certificate of Rehabilitation. It’s one of the few ways you can limit the harm caused by your criminal record in California, New York, or Texas. Call (310) 424-5816 or contact us online for a free consultation.
A Certificate of Rehabilitation Can Help You Get Your Life Back
A Certificate of Rehabilitation won’t expunge or seal your record, but it may be your best option if expungement or other post-conviction remedies aren’t available.
Under California law, it’s illegal for an employer with five or more employees to fail to hire someone because of their convictions if they have a certificate of rehabilitation. The certificate also functions as an automatic pardon application.
Under California law, the certificate is issued by a court and attests to your rehabilitation after a conviction. Texas and New York have their own versions. With this certificate, you can recover some of your legal rights. It should also be easier to find a job.
The process involves filling out a form, gathering evidence to support your application, and a court hearing. If you receive a certificate:
- Your civil rights are restored, except your 2nd Amendment rights concerning firearms
- You can’t be denied public licensing or employment (with some limits) due to your conviction
- Depending on the crime, you may no longer need to register as a sex offender
Do You Qualify for a Certificate of Rehabilitation?
The certificate won’t erase your felony conviction or seal the criminal record. If you served time in either state prison or county jail, you might qualify if you:
- Haven’t been re-incarcerated after your release
- Continuously lived in California for at least five years since your release. Some violent and sex-related crimes have longer waiting periods
- Have proof of your rehabilitation since your release
- Aren’t on probation for another felony
- Were convicted of a felony and sentenced to prison, another California state penal institution or agency, or
- Were convicted of a felony and sentenced to probation, and your conviction has been expunged, or
- Were convicted of a misdemeanor sex offense in Penal Code 290 (the Sex Offender Registration Act), and your conviction has been expunged
Proof of rehabilitation can be shown by:
- A record of consistent employment
- Getting drug, alcohol, or domestic abuse counseling
- Engaging in community events and affairs
- Volunteering for non-profit organizations
- Not having an arrest record
- Active involvement in your children’s lives
- Positive letters from employers, clergy, neighbors, community leaders, or volunteer agencies
After filing your application, a hearing is held. You or your attorney will make your case and evidence that you qualify for the certificate. If the court issues the certificate, it’s reviewed by the Board of Parole Hearings. It will later issue a recommendation as to whether the Governor should pardon you.
Take the Next Step. Contact Spolin Law P.C.
A Certificate of Rehabilitation can help get your life back after serving your sentence and successfully returning to society. To learn more about how you can obtain one or to get our help in the process, call Spolin Law P.C. at (310) 424-5816 or fill out our contact form to schedule a free consultation.
New LA District Attorney George Gascon Promises to Re-Open Thousands of Old CasesPublished on December 9, 2020
The new Los Angeles District Attorney, George Gascon, has promised to re-open thousands of old cases for California prison inmates with Los Angeles County convictions.
George Gascon defeated the prior District Attorney (Jackey Lacey) in the November election last month. He was sworn into office this past Monday, December 7th, 2020. Mr. Gascon then shocked the legal community by announcing a wide array of sweeping reforms and a retroactive application of most of these reforms.
“Retroactive” means that the many of the new changes will affect convictions in the past, whether they are from 25 years ago or from the day before Mr. Gascon took office.
This article was written by one of the criminal appeals lawyers at Spolin Law P.C. To find out more about how George Gascon’s election can affect your case, call our firm at (866) 716-2805.
TYPES OF CASES AFFECTED
The new policies issued by the Gascon administration are listed in a series of special directives that were published on December 7, 2020. They affect the following cases:
Cases with Sentence Enhancements
Special Directive 20-08 commands all prosecutors to abolish sentence enhancements (including gang enhancements, strikes, three-strike penalties).
Juveniles Tried in Adult Court
Special Directive 20-09 orders the abolition of the use of adult court for juveniles. Special Directive 20-14 also orders the re-opening and re-sentencing of “all cases where the defendant was a minor at the time of the offense.”
Writs of Habeas Corpus
Special Directive 20-10 stops the prior practice of automatically opposing all writs of habeas corpus. Now, the DA Habeas Unit “shall not simply oppose the petitioner’s claim” when the inmate’s claims are “supported by reasonably available evidence.”
Special Directive 20-13 completely changes the practices of the Conviction Integrity Unit so that the DA’s Office is tasked with helping prove the innocence of inmates where there are “avenues of investigation that have the potential to substantiate the applicant’s claim(s).”
Inmates with Overly-Long Sentences
As Mr. Gascon said himself: “the sentences we impose in this country, in this state, and in Los Angeles County are far too long…. [and I] campaigned on stopping the practice of imposing excessive sentences.” (Special Directive 20-14, 12/7/2020, page 2, italics added). Special Directive 20-14 orders the DA’s Office to allow a review of old sentences and use all available legal methods to fairly resentence inmates who received overly-long sentences.
HOW AN INMATE CAN BENEFIT
The election of George Gascon is great news for California inmates with Los Angeles County cases. However, not every inmate will benefit from the new DA’s changes. Here are some steps that may help you in winning a reduced sentence for yourself or a loved one.
Find a Skilled Appeals Lawyer
While Mr. Gascon is clearly an ally in reducing inmate sentences, he is limited by the laws that currently exist. Spolin Law P.C. handles post-conviction matters for clients throughout California and has experience reaching out to the DA’s Office through some of the legal methods described below.
Learn About New Laws AB 2942 / PC 1170d1
One way to get Mr. Gascon’s DA Office to reconsider a case is to apply under the new law AB 2942, which went into effect in 2019. AB 2942 allows each District Attorney’s Office in California to recommend resentencing for old convictions that occurred in that county. The law, written into the Penal Code, is one way to seek the new DA’s help in reducing an overly long sentence.
As one local attorney recently said, “It’s like the DA’s Office is now being run by a true-believer defense attorney.” Nonetheless, there are tens of thousands of unfair sentences that have been handed down in Los Angeles County over the last several decades. In order to benefit from these new policy changes, you will have to take some type of action so that your case gets noticed. The squeaky wheel gets the oil. Speak to your lawyer (or find a lawyer) so that you can begin this process. The appeals lawyers at Spolin Law P.C. are available to review cases and make recommendations.
To speak with a criminal law attorney at Spolin Law P.C., call us at (866) 716-2805.
What is a Wobbler Offense?Published on December 8, 2020
A wobbler offense, also called an “alternative felony/misdemeanor offense,” is a crime that can be charged or punished as either a felony or a misdemeanor in California. Usually the prosecutor decides whether to charge a wobbler as a felony or as a misdemeanor. In some cases judges will decide how to punish a wobbler offense. In addition, a defendant convicted of a wobbler felony may choose to file a petition with the court to reduce the conviction to a misdemeanor. In California there are hundreds of crimes that qualify as wobblers. These include sex crimes, domestic violence, and fraud crimes.
When can the wobbler offense be reduced to a misdemeanor?
There exist four times when a wobbler crime can be reduced from a felony to a misdemeanor:
- When the prosecution first charges the offense;
- At a felony preliminary hearing when the defendant is held to answer;
- During sentencing; or
- If the defendant was not sentenced to prison, after the defendant has done California’s felony probation and filed a petition to reduce the charge.
How do prosecutors decide how to charge a crime?
California does not mandate how a prosecutor should charge a wobbler crime, it remains at the discretion of the prosecutor. In California prosecutors often follow the crime charging standards put out by the California District Attorneys Association. They suggest prosecutors look at the following factors to inform their decision:
- The defendant’s cooperation with law enforcement;
- The age of the defendant;
- The severity of the crime;
- The defendant’s criminal record;
- The chances of defendant continuing to commit crimes;
- If the defendant is eligible for probation;
- How strong the prosecution’s case is.
When do judges reduce a wobbler felony to a misdemeanor?
Judges, like prosecutors, have the discretion to reduce wobblers to misdemeanors from Penal Code 17. The judge can make this choice at either:
- The preliminary hearing,
- The time of sentencing, or
- Following the defendant’s petition to reduce a wobbler felony to a misdemeanor, for cases where the defendant was sentenced to and already completed California’s felony probation.
Judges are not bound by the prosecutor’s decision on how to charge the crime. If there are mitigating circumstances of the crime, judges are able to reduce a wobbler felony down to a misdemeanor. These mitigating circumstances are circumstances that argue in the favor of the judge being more lenient in sentencing. These mitigating factors include, among many others,
- The defendant not having any priors or an insignificant criminal record,
- The defendant played only a minor role in the crime
- The defendant’s acknowledgement of the wrongdoing and/or restitution to the victim early on in the criminal process
- The defendants earlier behavior on probation or parole was satisfactory.
How does one get a wobbler conviction expunged?
Expungement is a type of post-conviction relief in California that is available to most wobblers. For wobblers it does not matter if the charge ended up as a felony or as a misdemeanor conviction. Eligible defendants can petition for an expungement following a completed probation. If the court grants the expungement, the case is to be dismissed with no conviction. In addition, the defendant does not have to tell any employers in the future about the case. Those not eligible for expungement are people convicted of certain sex crimes involving children. Additionally, in order for the defendant to qualify they must also have not served time in California State Prison for their offense, or had served jail time in a state prison for a crime that would be now served in county jail following Proposition 47’s new legislation.
Contact Spolin Law for Help
If you have any questions about wobbler offenses, you can call Spolin Law PC at (866) 716-2805. We have offices in Los Angeles, CA, Austin, TX, and Manhattan, NY.
Client Celebrates Freedom with His Lawyers After Life Sentence Is OverturnedPublished on October 9, 2020
Earlier this week a Spolin Law client visited the firm’s office to celebrate his newfound freedom. After two years of work by the firm, the client’s life sentence was dismissed, and he was finally released shortly before the office meeting.
The client and his family celebrated with Spolin Law attorneys and staff. Pictured, right to left, are Aaron Spolin (attorney), C.T. Jr. (client), Caitlin Dukes (attorney), Hemi Tann (case manager), C.T. Sr. (client’s father), Michael Alfi (firm mailroom manager), D.T. (mother), and T.A. (fiancé).
The client’s fiancé, father, and mother were present at the happy occasion. Spolin Law employees present also included attorney Aaron Spolin, attorney Caitlin Dukes, case manager Hemi Tann, and mailroom manager Michael Alfi.
The client had originally been convicted of murder because a person had died during the course of a robbery in which the client participated. However, the client had absolutely nothing to do with the death, did not want it to happen, and had been powerless to stop the unfortunate chain of events that eventually lead to the death. Notwithstanding this fact, the District Attorney’s Office had charged the client with murder. Based on changes in state law since the conviction, the judge agreed with the Spolin Law attorneys that the client’s murder conviction had to be dismissed, resulting in a re-sentencing that eliminated the life sentence.
The firm had won the client’s case several month ago (see earlier link); however, the CDCR and prison facility had improperly kept the client in custody due to an inaccurate interpretation of the client’s time credits. Spolin Law attorney Caitlin Dukes repeatedly contacted the CDCR to resolve this issue and get the facility to actually release the client. The client is now considering a money-damages lawsuit for improper confinement during the extra months he spent in prison.
“It was beautiful to see their whole family together,” said Hemi Tann, who is a case manager at the firm. “I felt wonderful knowing that we had helped this family get their son back.”
The client has already been offered a job as an auto mechanic and hopes to begin work shortly. He will finally have a chance to make up for the years he lost and start his life over with his fiancé, who supported him throughout the process.
Criminal Appeals: What’s Abuse of Discretion?Published on August 27, 2020
When a case goes to trial, the court has some leeway in how they decide certain issues. If they fail to decide the matter in a legally valid way, this could be an abuse of its discretion and you may be able to get the court’s decision overturned.
A criminal appeal in California is challenging, as courts are generally very careful about their protocols. But mistakes happen, resulting in inappropriate evidence being admitted, overly harsh sentences, and wrongful convictions.
If you believe that a legal mistake led to your or a loved one’s current situation, you need an experienced appeals attorney with a history of success in the criminal appeal process. Let Aaron Spolin and the attorneys at Spolin Law, P.C. review your case file, find any errors, and fight to have incorrect decisions reversed.
Start your appeal today. Call (310) 424-5816 for a free consultation with Spolin Law, P.C.
Appeals: Defining Discretion
Discretion is the flexibility given to the court or judge in your case to make decisions based on circumstances, legal precedent, and their own judgment. This is a fairly vague legal concept, but it usually covers very specific decisions made by judges in criminal cases.
When judges act outside the scope of their authority, base decisions on biased views, or misinterpret the law, it can be considered an abuse of discretion.
Some common examples of abuse of discretion are:
- Not allowing a certain witness to testify
- Showing bias toward the accused
- Making flawed rulings on evidence that stifle one side’s rights
- Influencing the jury to reach a certain verdict
- Sentences that are far too harsh for the offense
When Abuse of Discretion Occurs
How do you know when abuse of discretion occurred?
This is a hard question to answer definitively since discretion is based on individual judgment. And like most appeals, proving that a legal error happened can be an uphill battle. However, the court does not have to prove that they were correct or fair in their judgment. Instead, you only have to establish that they abused their discretion.
For an appeal court to rule that a lower court abused its discretion, and subsequently denied you a fair trial, you must show that the judge’s decision was so obviously against the evidence and reason that it violated your right to a fair trial.
An appeal based on abuse of discretion can have several possible outcomes. If successful, the appeal court may reverse the trial court’s judgment. If you prove that an abuse of discretion occurred but not that it kept you from receiving a fair trial, the appeal court may comment on the error but not overturn the decision. In addition, if you fail to prove an abuse happened, the appeal court will uphold the trial court’s original decision.
Abuse of Discretion: Standard of Review
Standard of review refers to the grounds on which you request a review of your trial court decision. It is not enough to say that you disagree with the decision and ask for an appeal, nor is it enough to state that the trial was unfair or erroneous.
The appellate court is very limited in what it can look at in an appeal, which is why you and your attorney must choose the correct standard.
Other standards of review include the substantial evidence and de novo standards. Substantial evidence is when the trial court’s decision is not backed up by sufficient evidence. The de novo standard is appropriate when the issue stems from a legal issue, allowing the appellate court to evaluate the case as if the trial court had never ruled on it.
Contact Spolin Law for Help
The court is often slow to overturn decisions, and you have a demanding burden to prove an abuse of discretion occurred. But if you think there’s a chance that such an abuse happened in your case or that of a loved one, you should contact Spolin Law P.C. and speak to an experienced criminal appeals lawyer as soon as possible.
Working with an attorney with a background and history of success in appeals can give you clarity into your case and confidence in your argument. This could result in receiving a lighter sentence, a new trial, or even your freedom.
What Happens If You Are Arrested For Protesting?Published on August 11, 2020
Can You Be Arrested While Protesting?
While your right to protest is protected under the first amendment, there are certain restrictions as to where and how you may do so. Failing to comply with these restrictions can result in an unwanted arrest.
There are many reasons you can be arrested while protesting. For instance, you may be arrested for protesting on private property or for disrupting car or pedestrian traffic with your assembly. Law enforcement officers may also break up any violent protests and can arrest protesters who are engaging in violence or property destruction. Violating an order to disperse or neglecting state/country curfews can also put you in handcuffs.
What happens after you have been arrested for protesting?
If you are arrested at a protest, you will be searched and transported to a local police station for processing. There you will be fingerprinted, photographed, and placed in a holding cell. At that point, you can either decide to post your bail or remain in custody until your court hearing, during which your bail amount may be adjusted.
Your first court appearance is known as an arraignment and is expected to occur within 48 hours of your arrest. During your arraignment, you are informed of the charges that have been filed against you and you are asked to enter a plea of guilty or not guilty. If you plead guilty, you will be sentenced right then, if you plead not guilty, you will go to trial. The court will then select a trial date and either set, modify, reinstate, or exonerate your bail.
If you chose to go to trial, you will have to return to court within a few weeks of your arraignment. You will plead your case to a judge and receive a final verdict.
What Are Some Common Punishments For Protesting?
Each case is different. While most offenders receive only minor penalties, certain crimes might warrant harsher and much larger punishments. Below is a list of common protest arrest charges and their respective penalties:
● Unlawful assembly: A majority of arrests made during protests are based on unlawful assembly. Unlawful assembly is a misdemeanor that carries a maximum 6-month jail sentence. Judges rarely assign 6-month sentences unless the circumstances require it.
● Trespassing: Protesters may also be arrested for protesting on private property. In California, trespassing can either be charged as an infraction, a misdemeanor, or a felony. Trespassing infractions carry only a small fine, while trespassing misdemeanors are punishable by up to 6 months in jail and a maximum $1000 fine. Trespassing felonies however call for a maximum 3-year jail sentence and a $2000 fine.
● Obstruction of pedestrian or vehicular traffic: If you are found guilty of blocking car or foot traffic with your protest, you may receive a fine of up to four $400 or maybe sentenced to up to 4 months in county jail.
If you were arrested while protesting and were unfairly convicted on any of these charges, you can always push to appeal the court’s decision. If you chose to do so, it is important that you chose a team of experienced and successful appeal lawyers to represent you. Call Spolin Law P.C. today at (310) 424-5816, or reach out online to schedule a free case evaluation.
Governor Publicly Announces Commutation of Sentence for Spolin Law ClientPublished on July 14, 2020
California Governor Gavin Newsom has announced the commutation (reduction) of sentence for a Spolin Law client who was previously serving a life sentence without the possibility of parole. The decision was announced on June 26, 2020. A copy of the commutation, signed by Governor Newsom as well as Secretary of State Alex Padilla, was released to state and national media outlets shortly after the commutation.
A commutation of sentence is a method that state governors can use to cut short a person’s sentence. It is often used when someone has received an overly harsh sentence or has shown rehabilitation during his or her time in prison. A governor’s commutation is similar to the more well-known governor’s pardon. While a pardon erases a criminal conviction completely, a commutation simply cuts short the person’s sentence. State governors can commute or pardon for state crimes; the President can commute or pardon for federal crimes.
Governor Newsom explained his decision to commute the client’s sentence by describing the client’s excellent behavior, educational program participation, various certificates, and other noteworthy aspects of the client’s life.
In his commutation announcement, Governor Newsom said the following:
In 1998, James Heard, shot his romantic rival, Christopher Chessmar. Mr. Heard then directed his crime partner to shoot Mr. Chessmar. His crime partner complied, killing Mr. Chessmar. On March 20, 2000, the Superior Court of California, County of Los Angeles, sentenced Mr. Heard to life without the possibility of parole for murder.
Mr. Heard was 22 years old at the time of the crime and is now 44. He has been incarcerated for more than 21 years. He has expressed sincere remorse for killing Mr. Chessmar.
While serving a sentence with no hope of release, Mr. Heard devoted himself to self-improvement. Mr. Heard has maintained an exemplary disciplinary record while in prison. He has completed self-help programming and earned an associate degree and art certificates.
Prison staff, including work supervisors and correctional staff, have commended Mr. Heard for his generosity and artistic talents, as well as his interpersonal and leadership skills. Mr. Heard has lived in an honor dorm since 2004. He has donated his artwork to various charitable causes. Mr. Heard has also volunteered his time to crochet hats and scarves for charity.
Mr. Heard committed a serious crime that took the life of Mr. Chessmar. Since then, Mr. Heard has dedicated himself to his rehabilitation and becoming a productive citizen. I have carefully considered and weighed the evidence of his positive conduct in prison, the fact that he was a youthful offender, his longterm confinement, and his good prospects for successful community reentry. I have concluded that Mr. Heard merits the opportunity to make his case to the Board of Parole Hearings so it can determine whether he is suitable for parole.
This act of clemency for Mr. Heard does not minimize or forgive his conduct or the harm it caused. It does recognize the work he has done since to transform himself.
The client’s family was extremely happy to hear this good news.
CA Senate Bill 1437: You May Qualify for Resentencing?Published on June 24, 2020
In September 2018, the Governor of California signed legislation that reformed the state’s approach to accomplice liability in felony murder cases. Significantly, CA Senate Bill (SB) 1437 will have a retroactive effect.
Under SB 1437, people convicted under the old felony murder law can apply to have their sentences reduced. If you or a loved one has been convicted of murder for their role in a felony that resulted in someone’s death, it is likely that these reforms apply to you.
California Changed the Old Felony Murder Law
Before CA SB 1437 went into effect, you could be convicted of felony murder if you committed, aided, or abetted to commit a felony, and any person died as a result. It would not matter if you did not actually kill the victim, or even if the death was accidental.
According to the new law, to convict you of felony murder, a prosecutor must demonstrate that you committed a felony, or aided or abetted a felony. Additionally, they will need to prove one of the following:
- You killed a person
- You aided or abetted the killing, which means proving your intent to kill
- You were a major participant in the felony, and you acted with reckless indifference
- Your actions caused the death of a peace officer who was exercising their duties
What’s Different Under the New Felony Murder Law?
The essential difference between the old law and the new law is that now, prosecutors have to prove your intent or state of mind – unless you actually killed someone, or the person who died was a peace officer. Previously, you could get convicted of felony murder as long as someone got killed in a felony that you were involved in. It didn’t matter what your state of mind was. Now, prosecutors may have to prove one of two kinds of state of mind:
The prosecutor may show that you intended for the victim to die in various ways. For example, a witness could testify that you told an accomplice “to get rid of him.” There may also be evidence that you provided the murder weapon to the killer shortly before the act.
When proving recklessness, the prosecutor doesn’t need to show that you intended to kill. Instead, they need to show that you did not care if a death occurred. In this case, evidence that you were present and did nothing to stop a killing despite having some power to intervene may be enough to show reckless indifference.
Proving your “state of mind” adds an extra level of protection, which conforms to the general rule that someone can only get convicted for crimes that they intended to commit. The only time state of mind doesn’t matter is when an officer is killed, or you actually kill the victim. These aggravating circumstances make is so your state of mind doesn’t matter.
Convicted Under the Old Law? You May Qualify for Resentencing
CA SB 1437 makes you eligible for resentencing if all of the following applies:
- You were prosecuted under the natural probable consequences theory. This means that you were charged with felony murder and did not directly kill the victim. Rather, the prosecutor argued that the victim’s death was the natural and probable result of the felony you committed.
- You were convicted of first or second-degree murder. The conviction could have been entered after a guilty verdict from a jury, or a plea deal. In other words, it doesn’t matter if you were convicted after a trial or not.
Have Questions About CA SB 1437? Contact a Los Angeles Appeals Lawyer Now
If you think there is any chance that the above factors apply to your case or that of a loved one, you should speak to an experienced Southern California criminal appeals lawyer as soon as possible. You may be in a position to petition the court for a resentencing hearing.
This could result in receiving a lighter sentence or even your freedom. To find out more about sentencing options for felony murder, call Spolin Law P.C. today at (310) 424-5816, or reach out online to schedule a free case evaluation.
Malcolm Alexander: Wrongful Conviction Vacated After 38 YearsPublished on April 13, 2020
Unfortunately, wrongful convictions occur in the United States quite often, and the process of vacating these false convictions can take many years. This was the case for Malcolm Alexander, who fell victim to an incorrect eyewitness identification, an incompetent defense attorney, and lost evidence.
In 1980 Malcolm Alexander was arrested and convicted for a rape he did not commit. The rape, which took place in 1979, was linked to Malcolm Alexander solely by eyewitness identification. The victim initially described the attacker as a 6ft tall male, but eventually, though somewhat uncertain, identified Alexander. The victim was attacked from behind and did not identify Malcolm Alexander until four months after the rape had occurred. Even then, the police incorrectly conducted the perpetrator line-ups and only regarded her identification as “tentative.”
This incorrect eyewitness fits a pattern in wrongful conviction cases. Eyewitness identification is the number one reason for wrongful convictions. Specifically, 71% of wrongful conviction cases are due to an incorrect eyewitness identification. In fact, in the legal profession, there is growing evidence against the accuracy of eyewitness identification; one in four is incorrect. (See criminal appeals attorney Aaron Spolin’s book, Witness Misidentification in Criminal Trials, to read about this topic in greater depth).
While most humans believe they can recognize those that have caused them or others harm, the misidentification stems from a variety of factors. Some of the most crucial factors are: witnesses being under high levels of stress, witnesses tending to concentrate more on weapons than the identity of the perpetrator, police or prosecutors using suggestive tactics to sway witnesses while they are in the identification process, and more.
In the case of Malcolm Alexander, the witness was both in an extremely high stress situation as she underwent a rape, and did not have a good line of sight to the attacker — both of which could have led to the misidentification. In spite of the victims uncertain identification, the trial for Malcolm Alexander was quick. The lawyer defending Mr. Alexander did not point out any of the inconsistencies with the witness identification, nor promote another narrative of his innocence. In fact, the lawyer defending Malcolm Alexander did not present neither opening nor closing arguments on behalf of his client, nor did he call any witnesses to defend Mr. Alexander. The entire trial of Mr. Alexander lasted one day. In spite of the existence of DNA evidence, including pubic hairs and semen, neither attorney requested that DNA testing be completed. Malcolm Alexander was 21 years old, and the father of a two year old, who was then given life without parole.
Malcolm Alexander advocated for his innocence while he was in prison, and eventually, the Innocence Project picked up the case. Unfortunately, the innocence project faced many challenges. Most notably, the evidence from the case had been destroyed by the New Orleans Police Department. However, after a continuous push from the Innocence Project, the pubic hairs from the scene were recovered.
After 38 years in prison in Louisiana, Malcolm Alexander was exonerated, thanks to the evidence found by the attorneys working on his case. A sample of his pubic hair did not match the pubic hair left by the perpetrator at the crime scene. Malcolm Alexander was released from prison on January 30th, 2018.
“ MALCOLM ALEXANDER.” Malcolm Alexander – National Registry of Exonerations, University of Michigan Law, 6 Feb. 2018, www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5274.
“Eyewitness Identification Reform.” Innocence Project, www.innocenceproject.org/eyewitness-identification-reform/.
“Malcolm Alexander.” Innocence Project New Orleans (IPNO), 30 Jan. 2018, ip-no.org/what-we-do/free-innocent-prisoners/client-profiles/malcolm-alexander/.