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Members of innocence organizations and lawyers who represent wrongfully convicted persons in the US and East Asia gathered online on December 9, 2021 to share their challenges and achievements over the past year. It was the second year in a row that the U.S.-Asia Law Institute hosted an online wrongful convictions roundtable. Panelists from the US, China, Japan, Taiwan, and Thailand discussed the effects of the COVID-19 pandemic on their clients and their work, the impact of government misconduct in creating wrongful convictions, the role of prosecutors in correcting them, and recent developments in their jurisdictions.
EFFECTS OF COVID-19 PANDEMIC
Panelists discovered that they faced similar challenges from the pandemic such as adjusting to remote work, court hearings and conferences being canceled or delayed, and communications with their clients being obstructed.
“We were not able to visit our clients during the pandemic since we were forbidden to travel across cities. And it was not very common for the prisons in Taiwan to use remote communication devices,” said Ko-Yun Ching, campaign director of the Taiwan Innocence Project (TIP).
Nathaniel Erb, a state policy advocate for the New York-based Innocence Project, said politicization of the pandemic response in the US created some unusual challenges. “It’s been really challenging for our team to figure out how to work in … an environment where you’re going to be wearing masks and taking safety precautions, that in itself is a political act in the US, and so you’re going to be limiting the effect on conservative members of the government. How can you really sway their opinion when you can’t walk into a room with various necessary PPE?” Erb said.
Meredith Kennedy, director of the Innocence Network, said that information from its 68 member organizations, most of which are in the US, indicated that few prisons implemented mask mandates or tried to accelerate vaccinations of incarcerated people.
“It’s quite shocking actually that collectively there has been so little done to really mitigate the effects of COVID-19 on folks in prison,” said Kennedy. One positive byproduct of the pandemic, she said, was that many innocence organizations were forced to digitize their records.
Government Misconduct
All panelists said that government misconduct, including by prosecutors, was a contributing factor in wrongful convictions in their jurisdictions.
“In the US, according to our numbers so far, [of] the exonerations in 2021, 68 percent, so more than two-thirds of them, involved some sort of government misconduct, including prosecutorial misconduct,” said Simon Cole, the director and associate editor of the National Registry of Exonerations. Historically, that figure is 55 percent, but Cole believes the slight uptick is due to a recent series of exonerations in Chicago linked to a group of police officers planting drugs on suspects.
Police misconduct was said to be the main contributing factor to wrongful convictions in Thailand. “What concerns us the most is police misconduct,” said Lada Trisak, a lawyer for Innocence International Thailand. “The problems we encountered would be forced confessions, physical abuse during their investigation that leads to false confessions, and misapplied forensic sciences.”
False and coerced confessions were also common problems in Taiwan, China, and the US.
In six out of the ten exonerations achieved by the Taiwan Innocence Project, the original wrongful convictions were linked to government misconduct, said TIP’s Ko. She said the failure to properly collect, handle, and preserve evidence and the related problem of concealing exculpatory evidence were the “most common type of official misconduct” encountered in Taiwan. Obtaining false confessions is the other big problem, occurring in half of the six cases in Taiwan, she said.
In Japan and China, prosecutorial misconduct is a large contributor to wrongful convictions. “The problem with the Japanese criminal justice system, especially with prosecutors, is that they never admit to making mistakes,” said Kana Sasakura, director of Innocence Project Japan (IPJ). Sasakura said this “culture of denial” is one of the major causes of wrongful convictions in Japan. “The 99.8 percent conviction rate shows that the prosecutors themselves serve as ‘judges’ and thoroughly screen the cases,” she added.
ROLE OF PROSECUTORS
At the same time, panelists said that prosecutors in China, Taiwan, and the US have contributed to exonerations of wrongfully convicted persons. In the United States, that often took the form of intervention by a Conviction Integrity Unit or CIU, an office within a prosecutor’s office that works to prevent, identify, and remedy wrongful convictions.
“Thirty-eight percent of the exonerations thus far [this year] had the involvement of a CIU,” said Simon Cole of the National Registry of Exonerations. Although slightly lower than last year’s 47 percent, it is still consistent, Cole said. He also noted the increasing number of CIUs in the US, from 33 in 2017 to 74 in 2020 and 91 at present. “Out of the 91, 41 have had at least one exoneration or more,” Cole said.
In Taiwan, the criminal procedure code imposes a duty on prosecutors to step in if they notice any wrongdoing, even post-conviction. Out of the six exonerations achieved by TIP, prosecutors played a positive role in three by filing motions for retrials, TIP’s Ko said.
Wang Wanqiong, a defense attorney at the Exceedon & Partners Law Firm in China who takes on wrongful convictions, said Chinese prosecutors have more authority than their counterparts in Taiwan and Japan. “In practice, from time to time, prosecutors do intervene in police investigations in advance to prevent wrongful filing and accusation,” she said. Wang said special petition review divisions within procuratorates’ offices have contributed to exonerations.
By contrast, although prosecutors in Japan have the legal power and responsibility to help exonerate innocent people, in practice they have not been helpful, said the IPJ’s Sasakura. Instead, she said, they are overly concerned with winning or losing cases, lack transparency and accountability, and cannot admit mistakes.
Prosecutors in Thailand have no role in exonerations and are not involved during investigations, said Dr. Namtaee Meeboonsalang, founder of Innocence International Thailand and a prosecutor. “According to the law, we (prosecutors) are not allowed to initiate another trial,” Meeboonsalang said. He said that in his decades of work as a prosecutor, he has witnessed a lot of police and prosecutorial misconduct that has caused wrongful convictions, but reform efforts have not succeeded. “We are under dictatorship, not only politically but also in terms of the criminal justice system as well,” he said.
RECENT DEVELOPMENTS
Panelists also shared recent developments and plans. The Innocence Network hopes to hold its annual conference in person for the first time in two years from April 7, 2022 to April 9, 2022 in Phoenix, Arizona. TIP is working on two reform plans including a regulation requiring preservation of evidence post-conviction and a reform of the criminal procedure code. TIP also published a Chinese-language translation of the book Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions, by Mark Godsey, co-founder of the Ohio Innocence Project.
IPJ’s Sasakura, who also is co-director of the SBS Review (Shaken Baby Syndrome) Project, which helps persons accused of child abuse under the flawed SBS hypothesis. Sasakura said that since the project began in 2017, participating volunteer lawyers have gotten eight finalized acquittals. “Eight acquittals in one category of cases is a lot in Japan with a 99.8 percent conviction rate,” she adds. The lawyers are calling for a systematic review of past SBS cases.
In China, Shangquan Law Office and the China University of Political Science and Law jointly launched a one-year pro-bono project beginning in 2021 to provide legal aid to defendants who have been sentenced to death on the basis of insufficient evidence.
By Jessica Chin