Introduction: Forensic Fail

Background: About 60% of Pheochromocytoma (PCC) and Paraganglioma (PGL) patients have either germline or somatic mutations in one of the 12 proposed disease causing genes; SDHA, SDHB, SDHC, SDHD, SDHAF2, VHL, EPAS1, RET, NF1, TMEM127, MAX and H-RAS. Selective screening for germline mutations is routinely performed in clinical management of these diseases. Testing for somatic alterations is not performed on a regular basis because of limitations in interpreting the results. Aim: The purpose of the study was to investigate genetic events and phenotype correlations in a large cohort of PCC and PGL tumours. Methods: A total of 101 tumours from 89 patients with PCC and PGL were re-sequenced for a panel of 10 disease causing genes using automated Sanger sequencing. Selected samples were analysed with Multiplex Ligation-dependent Probe Amplification and/or SNParray. Results: Pathogenic genetic variants were found in tumours from 33 individual patients (37%), 14 (16%) were discovered in constitutional DNA and 16 (18%) were confirmed as somatic. Loss of heterozygosity (LOH) was observed in 1/1 SDHB, 11/11 VHL and 3/3 NF1-associated tumours. In patients with somatic mutations there were no recurrences in contrast to carriers of germline mutations (P = 0.022). SDHx/VHL/ EPAS1 associated cases had higher norepinephrine output (P = 0.03) and lower epinephrine output (P<0.001) compared to RET/NF1/H-RAS cases. Conclusion: Somatic mutations are frequent events in PCC and PGL tumours. Tumour genotype may be further investigated as prognostic factors in these diseases. Growing evidence suggest that analysis of tumour DNA could have an impact on the management of these patients

The Banality of Wrongful Executions

What is so haunting about the known wrongful convictions is that those cases are the tip of the iceberg. Untold numbers of unnoticed errors may send the innocent to prison — and to the death chamber. That is why I recommend to readers a trilogy of fascinating new books that peer deeper into this larger but murkier problem. Outside the rarified group of highly publicized exonerations, which have themselves done much to attract attention to the causes of wrongful convictions, errors may be so mundane that no one notices them unless an outsider plucks a case from darkness and holds it to the light. That is what happened in the Carlos DeLuna case, which drew no attention at the time and remained in near-total obscurity until Professor James Liebman and a team of five law students painstakingly dissected the case in their book Los Tocayos Carlos (the Carlos look-alikes). Their book was the product of an in-depth investigation of the case, from the first 911 call to the police through the execution and the evidence gathered since. They have also published the results online, including multimedia and images of key documents that they uncovered. The result is an exhaustive postmortem. Whether political theorist Hannah Arendt was right to call Adolf Eichmann a banal person caught up in a twisted Nazi culture that made evil seem normal — that is another question. But cases like DeLuna’s show how entrenched failures of our criminal justice system can make the individuals involved seem all too banal, even if some were by turns plodding, incompetent, misguided, or even malicious. In Anatomy of Injustice: A Murder Case Gone Wrong, journalist Raymond Bonner presents a vivid account of tunnel vision gone wrong, but a case in which the system did eventually — if only partially — right itself. Bonner unravels the case against Edward Lee Elmore, a mentally retarded black man who was sentenced to death in South Carolina in 1982 (the year before DeLuna’s trial in Texas). Once again, the outcome was not due to one “bad guy” but rather to a criminal justice system with practices and procedures that, predictably, create errors that are very difficult to correct. While the Liebman team drills deeply into one case, Professor Dan Simon’s book, In Doubt: The Psychology of the Criminal Justice Process, takes a panoramic, empirical view of the larger problem (Simon, p. 1). Simon digested decades of social science research into a readable and concise book. And an important lesson emerges once the banality of wrongful convictions is cast in the mold of cognitive research: Individual actors may not act as “evil” villains trying to frame an innocent person. They may tend to assume that a suspect is guilty (Simon, p. 24). Well-intentioned criminal justice actors, however, can be precisely the ones to fall prey to a guilt-bias and make errors, particularly when working in groups in law enforcement agencies (Simon, pp. 28–29). Ordinary tendencies to confirm prior theories, susceptibility to tunnel vision, and other everyday cognitive biases may blind criminal justice actors to alternative theories and entrench their views, even when they are wrong. The fault for any one wrongful conviction does not simply lie with a few bad actors — even malicious actors depend on the cooperation and support of many others — but with an entire system that we must all take responsibility for improving

The Rise of Bank Prosecutions

Before 2008, prosecutions of banks had been quite rare in the federal courts, and the criminal liability of banks and bankers was not a topic that received much public or scholarly attention. In the wake of the last financial crisis, however, critics have begun to ask whether prosecutors adequately held banks and bankers accountable for their crimes. In this Essay, I describe the remarkable rise in the number of bank prosecutions in recent years, as well as the still steeper rise in criminal penalties imposed on banks. 2015 was the year that bank prosecutions finally came into their own, both in the record-breaking size of the fines and in the numbers of cases resolved. While the DOJ can claim marked achievements in recent years, which I detail here, I nevertheless caution against treating these data as fully answering critics’ concerns. Despite the apparent rise of bank prosecutions, important “too big to jail” concerns remain: prosecution deals are inadequate both as punishments and as rehabilitative efforts designed to promote compliance. Upon closer examination, the recent string of bank prosecutions, while noteworthy, fails to address persistent concerns that deterrent fines are not routinely imposed, that compliance terms designed to rehabilitate firms are not used effectively, and that individuals remain largely un-prosecuted

The Metamorphosis of Corporate Criminal Prosecutions

Corporate criminal enforcement has exploded in this country. Billion dollar fines are now routine across a range of industries, where they were unimaginable a decade ago. We have federal prosecutors and the Department of Justice, together with the white-collar bar, to thank for this. Their innovations have transformed what was, in decades past, a backwater area of criminal practice. Yet deep concerns remain that corporate prosecution settlements offer lenient and non-transparent deals that fail to hold either the corporations or the culpable individuals adequately accountable. Now, the DOJ has begun to rethink the evolving corporate prosecution approach through the adoption of new guidelines. This Essay explores the most recent set of changes to the evolving DOJ approach, responding to an incisive critique offered by Professors Elizabeth Joh and Thomas Joo. While a commendable and overdue effort, I agree with Joh and Joo that the changes are incremental and may have perverse consequences. Still more troubling, the changes entirely fail to address separate concerns, including regarding calculation of fines, scope and effectiveness of compliance reforms, treatment of recidivists, and supervision of agreements. A deeper rethinking of the federal approach towards enforcing corporate crime is much needed. During a time of broader rethinking of our criminal justice priorities, the paramount concern with leniency and rehabilitation in corporate prosecutions should instead be directed to the benefit of individuals

Remaining Silent after Salinas

In its ruling last Term in Salinas v Texas, the Supreme Court further eroded what little remains of the Fifth Amendment jurisprudence protecting against coercive police questioning of suspects. In this short piece for the University of Chicago Law Review\u27s online Dialogue, I explore the Salinas decision and its implications. I argue that the result encourages precisely the types of informal, undocumented questioning that can cause false confessions and wrongful convictions

The Crime Lab in the Age of the Genetic Panopticon

Scientific evidence really nails this man to the wall, the Harris County, Texas prosecutor told the jurors in closing statements. At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime and that a hair from the crime scene matched him. But seventeen years later, the same hair was tested again, this time using DNA analysis, and the evidence cleared Rodriguez and ultimately led to the crime crime lab being shut down and recreated. The Rodriguez case illustrates why the crime lab has entered a time of crisis. I will discuss that case and the larger story of the transformation of the Houston lab, to introduce the first of three wonderful new books that I review here: Sandra Guerra Thompson\u27s Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories. Second, I turn to Erin Murphy\u27s book, Inside the Cell: The Dark Side of Forensic DNA, to explore Murphy\u27s compelling account of why DNA testing is no panacea for these growing problems and may instead actually magnify some of them. These failings raise the larger question whether improved research to support forensic disciplines, national regulation regarding the quality and standards for labs, and constitutional criminal procedure to remedy the poor litigation of forensics in the courtroom can help to address the failings of our crime labs. I suggest that efforts to improve research, regulation, and criminal procedure are beginning to show promise, but that much remains to be done. Third, I will discuss Adam Benforado\u27s book, Unfair: The New Science of Criminal Injustice, which looks broadly at the role of social science and criminal law, but focusing here on cognitive research and expert evidence. Finally, I will discuss how advances in scientific research and technology will reshape the crime lab of the future, creating new challenges and opportunities for criminal justice

The Myth of the Presumption of Innocence

James Q. Whitman, in his deeply comparative new article, describes the American criminal justice system, in contrast with continental and inquisitorial systems, as more focused on the danger of innocent persons being arrested and convicted. In this Response, I respond by questioning the comparison on both sides of the equation, not to disagree with its utility or its contours, but because I admire the project and seek to elaborate here on Whitman’s deep concern with unpacking the status of the presumption of innocence and that of mercy. I describe how the American presumption of innocence is more of an ideal than real. Nor does the supposed and oft proclaimed focus in constitutional criminal procedure on the question of guilt or innocence translate into rights protective as against wrongful convictions. However, there is today the potential for a new kind of convergence, as systems on both sides of the Atlantic are responding to wrongful convictions with a rethinking of traditional procedural rules, including rules of finality that long resisted reopening convictions in a broad range of civil and common law systems. Continental systems are increasingly receptive to claims of new evidence of innocence, in part because of lessons drawn from research on wrongful convictions in the United States. And in a reverse irony, inquisitorial tools are influencing efforts to make criminal adjudication in the United States more reliable. As a result, in the years ahead, there is much that all systems can do to make the presumption of innocence far more than the vestigial “inaccurate, shorthand description” of a right that it has so often served as in the past, and instead a “corner stone” of criminal justice

Capital Jurors in an Era of Death Penalty Decline

The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty. We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California. What we found was surprising. Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty. Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors. Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility. A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death. Rare punishments may seem more arbitrary, even to those who find them morally acceptable. We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed