On Wrongful Convictions and Tunnel Vision

"Only a fraction of criminal cases involve biological evidence that can be subjected to DNA testing, and even when such evidence exists, it is often lost or destroyed after a conviction. Since they don’t have access to a definitive test like DNA, many wrongfully convicted people have a slim chance of ever proving their innocence," notes the Innocence Project.

The criminal justice is a system of men and women, and not law; don't kid yourself. High-minded rhetoric from prosecutors is so much twaddle.

For justice to prevail, commitment to truth and moral courage must trump careerism, institutional inertia of the drive to amass convictions, and passive compliance.

So, I pose here again an appeal to sign and distribute this Petition to demand a new trial for the wrongfully convicted Penny Brummer, convicted out of 1990s animus against lesbians by Dane County law enforcement, tunnel vision, and a frighteningly hostile stance of district attorneys toward claims of injustice and "blind obedience to finality," (Findley, Innocence Project, Washington Post).

Following is an eloquent description of Tunnel Vision from the Huffington Post, (Ferner):

Tunnel Vision: 'A Recipe For Disaster'

During the course of 'Making a Murderer,' it’s revealed that Manitowoc authorities had evidence that there may have been another suspect in Avery’s sexual assault case. For years, though, no report was filed about that evidence. Avery’s defense argues that law enforcement, in both Avery’s sexual assault case and his murder case, simply decided he was guilty before they had the evidence to prove it. The cops and prosecutors deny they had anything against Avery, maintaining that the evidence led them to him.

Daniel Medwed, a law professor at Northeastern University who has studied this phenomenon in depth, told HuffPost that police and prosecutors have been known to lock on to a theory and 'neglect countervailing evidence' if they decide a certain individual must be guilty.

'Psychologists call this "confirmation bias," Medwed said. 'After you develop a hypothesis, you see everything through that lens and interpret data in a way that confirms that view.'

[U.S. Circuit Judge Alex] Kozinski echoed similar sentiments to HuffPost, saying that when police are convinced of a person's guilt, this kind of 'tunnel vision' is 'probably the number one cause of wrongful convictions.'

This month, The Police Chief, the magazine of the International Association of Chiefs of Police, published an extensive report describing how 'tunnel vision' can lead to overturned convictions.

'This heuristic is particularly ill-suited to solving complex, dynamic investigations,' writes Dr. Kim Rossmo, a university chair and former detective inspector. 'Focusing on the first likely suspect, then closing the investigation off to alternative theories is a recipe for disaster.'

Yes, 'tunnel vision is a recipe for disaster, ask Penny Brummer. Of the many victims of tunnel vision, let's save one.

The Police Chief's piece on tunnel vision concludes:

Investigations should be led by the evidence, not by the suspects. Case conclusions should be deferred until sufficient information has been gathered, and tunnel vision should be avoided at all costs. Investigative managers must remain neutral and encourage open inquiries, discussion, and dissent. Assumptions, inference chains, and uncertainties need to be recognized and recorded. Outside help should be sought when necessary.

Being aware of these problems, however, is usually not enough. Police agencies need to establish organizational mechanisms to mitigate their risk.

Yes, like that's going to happen. There are careers at stake, Penny Brummer is suffering her wrongful conviction and life sentence for the sake of these careers and reputations.

Wisconsin Innocents Remain Incarcerated, Two L.A. Men to Get $24 million for Wrongful Convictions

Brummer v. Wisconsin

Updated - See also piece at CounterPunch.

"Los Angeles will pay more than $24 million to two men wrongfully imprisoned for decades, settling lawsuits by the men that accused police detectives of ignoring key evidence or witness testimony in the separate murderer cases," reports Dakota Smith in Los Angeles Daily News.

The headlines reporting new exonerations across the nation are almost daily. And the reactions from prosecutors across the country are uniform: Nothing to see here, no systemic problems, nothing we could have done, good faith, all systems green in the American criminal justice system.

With respect to the 1994 wrongful conviction of Penny Brummer in Dane County Wisconsin, I'm starting to believe the obstacles behind the district attorney's refusal to stipulate to a new trial is not a combination of institutional arrogance, obstinance and careerism.

No, Dane County District Attorney Ismael R. Ozanne has to this point refused a new trial in the Brummer case because he is protecting a wrongful conviction begun with an animus towards lesbians, and the case at trial was virtually a string of defamations, character assassinations and suppositions made in open court by the two prosecutors, the retired Ann Sayles, (27 years as a prosecutor in the DA's Office) and the late Deputy District Attorney Judy Schwaemle. See Who Killed Sarah.

Ozanne must believe he owes his allegiance to his former colleagues whose names are of more importance than the life of Penny Brummer.

There is no chance Brummer would be convicted today at trial, so Ozanne, one speculates, made a calculation that an innocent woman's life is not worth the black eye the DA's office would incur and the substantial monies that would be paid out by the state of Wisconsin.

There is a darker more sinister explanation: Brady violations, that would constitute prosecutorial misconduct.

I asked Ozanne a series of questions when he was running for Wisconsin attorney general in 2014, One question in part is "how much does the imprisonment of an innocent weigh on you?"

The relevant portion of Ozanne's response (via email) is below:

No prosecutor should want to have innocent people who have been wrongfully convicted stay in prison.  If evidence is brought to the attention of the authorities demonstrating that a mistake has been made, the interests of justice demand that the evidence is carefully reviewed and the individual should be released if exonerated. As Dane County District Attorney, I have worked with lawyers from the Innocence Project, and will do so in the future.  While these decisions are largely at the discretion of the DAs around the state, I would work with them as attorney general, providing resources and advice in these situations. The ultimate goal of the system is not simply to secure convictions, it is to do justice, (Mal Contends, April 2104) (emphasis added)

If Ozanne really believes his reference to "justice," I fully expect a review of Brummer v. Wisconsin (1994) (Dane County Case Number 1994CF000617) and a new trial.

Because the feeble, circumstantial case against Brummer should have been laughed out of court by former Judge Patrick Fiedler in 1994, Ozanne would be subjecting his office to ridicule, contingent on his position.

Notes attorney Sheila Berry:

All of the Signs of Innocence, criteria developed by David Protess, Director of the Chicago Innocence Project, apply to Penny.

Physical Evidence?
No physical evidence tied Penny to the crime; the murder weapon was never found.

Credible eye witnesses?
Key witnesses included James Foseid, who changed his story several times (and continues to change it).

Alibis?
Penny was home in Spring Green in time to see a TV show that started at 1:37 a.m. Sarah, forensic evidence suggests, may not have died until several hours later.

Any credible confession?
Penny maintains her innocence, although a police detective claimed she nodded slightly when he stated, "I think you were involved in Sarah's death."

Background of defendant?
No prior criminal record.

Enough pussyfooting around, Ismael Ozanne. Is your stated dedication to justice straight-up?

On Feb. 21, 2014 Rubin 'Hurricane' Carter (1937-2014), facing his imminent death, published his dying wish: That David McCallum of Brooklyn be granted a full hearing by the Brooklyn conviction integrity unit, (Carter, New York Daily News).

"I ask [District Attorney Ken] Thompson to look straight in the eye of truth, a tougher customer than death, and not back down either," wrote Carter. McCallum's 1986 conviction for murder and kidnapping was vacated in October 2014, (Moynihan, NYT), some six months after Rubin Carter died on April 20.

One hopes a similar legal result awaits Penny Brummer so that this woman who has over 20 years taken away from her can live out her life in peace.