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Criminal Defense Bar Secures Sweeping Reversal in Illinois Eyewitness Identification Litigation Concerning Flawed Lineups Linked to More than 50 Wrongful Convictions

Washington, DC (March 3, 2010) – The National Association of Criminal Defense Lawyers (NACDL) has been fighting in the Illinois courts since Feb. 2007 to secure access to data and other materials related to the Chicago Police Department’s controversial, taxpayer-funded report on lineups and eyewitness procedures. The report sets forth highly controversial, and widely criticized conclusions that current eyewitness procedures—those that use traditional line ups where all suspects stand in a room together—are more effective than new procedures used in other American cities to reduce errors that can lead to wrongful convictions. Although academic research has consistently found that sequential, double-blind identification procedures substantially reduce false identifications, the report claimed that in “real life” lineups, the traditional method was more reliable. The Chicago, Evanston and Joliet police departments participated in the study with the Illinois State Police.
NACDL efforts to secure the underlying data from the taxpayer-funded report have faced years of roadblocks erected by three of the police departments involved—Chicago, Joliet, and the Illinois State Police. Evanston is the only municipality to agree to turn over their data. The denial of NACDL’s informal and formal FOIA requests had left no alternative but litigation. Last week, in a consolidated appeal, the Appellate Court of Illinois, First Judicial District issued a sweeping reversal of lower court decisions limiting NACDL access to the data underlying this controversial report.

As maintained throughout by NACDL, the court ultimately found that there is a “vital public interest in the disclosure of these documents.” The court found that the police departments failed to discharge their burden to show that the law enforcement exemptions shield any of the police documents from disclosure (after appropriate redaction). And the police departments’ wholesale assertions of undue burden were categorically rejected. The court’s remand does afford the opportunity for redaction or withholding of certain documents, with the police departments bearing the burden to demonstrate why any specific document or information would compromise law enforcement or privacy, in which case the data would be presented to the court for an in camera review. But the court was clear that they must produce the actual lineup photos and photo arrays photos; the privacy exemption does not apply to those.

Northwestern Law School’s MacArthur Justice Center, a Chicago-based public interest law firm, filed the suit on behalf of NACDL. “Wrongful convictions happen too frequently to ignore, and many of them are the direct result of erroneous eyewitness identification,” said Locke Bowman, legal director of the MacArthur Justice Center and attorney for NACDL. “The fact that the Chicago and Illinois Police Departments are not curious as to why their research goes against so many other legal experts’ scientific research and professional opinions remains deeply disconcerting. Our client, NACDL, has a right to see the data behind a taxpayer-funded study, and we’ve been asking the courts for some time to direct these police departments to turn the information over immediately. Last week’s appellate decision directing disclosure to NACDL of this data is a tremendous victory for fairness and justice.”

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Supreme Court Gives Non-Citizen Defendants Facing Deportation Possible Recourse

On March 31, 2010, the Supreme Court of the United States decided Padilla v. Kentucky.   As a result, a non-citizen facing deportation on the basis of a criminal conviction may, under certain circumstances, ask the court to allow him or her to withdraw a guilty plea because the defense attorney did not advise them of possible immigration consequences of the plea.  In years past, we have been able to withdraw many guilty pleas on the basis that the court, specifically the judge, did not advise the defendant of the possible immigration consequences of the plea.  However, in recent years, judges have included the immigration consequence warning in the plea colloquy with the defendant.  It now appears that we may have another avenue to save non-citizen defendants from deportation.  Below is a highlighted portion of the Supreme Court case.
No. 08–651. Argued October 13, 2009—Decided March 31, 2010
Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug-distribution charges in Kentucky. In post-conviction proceedings, he claims that his counsel not only failed to advise him of this conse-quence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla post-conviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.
Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief de-pends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18.
(a) Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences.  Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Pp. 2–6.
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