The following opinion was published in the Philadelphia Inquirer on June 25, 2009.
DNA tests should be available to prisoners
Confirming innocence or guilt is the right of all who claim to be falsely accused.
By Marissa Bluestine and David Rudovsky
Chief Justice John Roberts began last week's opinion in District Attorney's Office of the Third Judicial District v. Osborne by noting: "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." But the ruling by Roberts and four other Supreme Court justices ultimately showed little regard for DNA's power to undo injustice.
In 1993, an Alaska court convicted William Osborne of kidnapping, assault, and sexual assault. On appeal, Osborne requested newly available DNA testing that, everyone agreed, would show definitively whether he was guilty. He also offered to pay for the testing. But the district attorney, without giving a reason, refused to turn over the DNA evidence.
A federal district court ruled that, as a matter of due process, Osborne was entitled to the evidence, and an appeals court agreed. However, the Supreme Court ruled that no such right exists after conviction, and that each state can decide when and under what circumstances a convicted defendant may have access to DNA evidence.
The Supreme Court's willingness to turn a blind eye to wrongly convicted prisoners is troubling - particularly in light of the 240 exonerations through DNA since 1989. As Justice John Paul Stevens noted in his dissent, Alaska never gave a reason for its refusal other than a need for "finality." Stevens called that position "arbitrary."
The court's majority opinion failed to answer the same question: Why, when an inmate has professed his innocence, repeatedly requested such testing since his trial, and agreed to cover all the associated costs, would a prosecutor not provide the evidence? Why, especially, when the test could conclusively prove that he committed the crime?
And if Osborne is in fact proved innocent and the DNA could identify the actual rapist, why is there not an overwhelming societal interest in providing the evidence for testing?
Unfortunately, many prosecutors have aggressively blocked prisoners seeking post-conviction DNA testing. According to a recent New York Times report, the reasons for the denials have included "overwhelming" eyewitness testimony (even though 75 percent of those exonerated by DNA were wrongly convicted based on eyewitness testimony), the purported statistical insignificance of the number of exonerations, and - the most often-cited reason - the need for "finality" in the criminal-justice system.
In response, most states, including Pennsylvania, have passed laws providing post-conviction access to DNA evidence. But many of these statutes are too narrowly framed to ensure sufficient access to DNA testing.
There is no doubt that the paramount aim of the criminal-justice system - to convict the guilty and free the innocent - is promoted by full access to DNA evidence. Incarcerating someone who had nothing to do with a crime does not benefit the victim. Nor does it benefit the victims who have suffered because a true perpetrator was never convicted and was able to commit more crimes - as has happened in the cases of at least 43 percent of the DNA exonerations to date.
When an inmate makes a credible claim of innocence, and when the DNA evidence will be able to conclusively establish the identity of the perpetrator, a genuine interest in "finality" should mean finally and conclusively identifying the true perpetrator.
While the ultimate impact of the Osborne decision is uncertain, its effect on potentially innocent men and women locked away for things they did not do is devastating. Peter Neufeld, a co-director of the Innocence Project in New York, which represented Osborne, has said, "As a result of this decision, more innocent people will languish in prison, and some may die in prison, because they were prevented from proving their innocence."
The Osborne ruling represents a betrayal of our society's core values. In Pennsylvania, the legislature and the courts should make sure that innocent inmates are not denied access to the evidence needed "to exonerate the wrongly convicted and to identify the guilty."
--------------------------------------------------------------------------------
Marissa Bluestine is legal director of the Pennsylvania Innocence Project. David Rudovsky is vice president of its board. They can be contacted at mbluestine@temple.edu and drudovsky@krlawphila.com.
Thursday, June 25, 2009
Monday, June 22, 2009
Guest shot: Oregon case puts reliability of science itself on trial
The following opinion was originally published on June 20, 2009 in The Oregonian.
Oregon case puts reliability of science itself on trial
by Pamela Cytrynbaum, guest opinion June 21, 2009
Oregon inmate Philip Scott Cannon"Bullet lead analysis" viewed as discredited evidence
Oregon Department of Corrections inmate No. 88329999 is a convicted murderer serving three life sentences for a 1998 triple homicide at a mobile home in West Salem.
Inside the Oregon State Penitentiary, that inmate, Philip Scott Cannon, spends every waking moment poring over legal documents as if his life depends on it. Because it does.
While the 42-year-old inmate may appear to be just another lifer shuffling through the system, he is, in fact, on the front lines of a quiet revolution overtaking the nation's criminal justice system. The "bullet lead analysis" that was the prosecution's primary tool in an otherwise circumstantial case against Cannon has since been discarded as bad science. The FBI no longer uses it.
Cannon and his legal team plan to put this evidence, and his conviction, on trial in a July 7 hearing they hope will result in his release.
We've seen a lot of media coverage of those found innocent, and later released, by the reliable scientific evidence provided by DNA. At the same time, but perhaps with less public attention, many of the other key scientific building blocks used for decades by prosecutors to convict are crumbling. It is not clear how many such tainted convictions exist -- or how often they have resulted in innocent people being convicted.
But for real justice to occur, the news media must shine their most searing and relentless light on the criminal justice system, now more than ever. Fewer investigative reporters have the time or resources to track down witnesses or unearth new evidence, even as more cases of possible wrongful conviction demand attention. For those of us who care about the integrity of the criminal justice system -- and democracy itself -- this case is a canary in the coal mine. What happens next month in Oregon, and in the months to come in courtrooms around the country, should matter to us all.
In fact, forensic science and cases of potential innocence collided again Thursday when the U.S. Supreme Court rejected an Alaska inmate's request for DNA testing, ruling that prisoners do not have a constitutional right to DNA testing that could prove their innocence.
A Polk County jury found Cannon guilty in the 1998 fatal shootings of Jason Kinser, Suzan Osborne and Celesta Graves, whose bodies were found in or beneath a mobile home in West Salem. Cannon testified he was at the residence to fix a plumbing problem but has always maintained his innocence, saying he neither knew about nor had anything to do with the crimes.
A former Oregon State University researcher in the university's Radiation Center provided the evidence now in question when he testified that tests showed bullets found at the crime scene matched those found in Cannon's garage. He told jurors there was only a 1 in 64 million chance of getting that match.
Now Cannon and his legal team are finalizing his claim of "actual innocence" for next month's hearing in Marion County Circuit Court. They will present new evidence intended to show he was convicted primarily on faulty and discredited "junk science" called bullet lead analysis -- evidence so unreliable it has been abandoned by the FBI. This same evidence is also the main forensic tool prosecutors nationwide have used to convict hundreds of defendants, according to a joint investigation last year by The Washington Post and "60 Minutes."
Nobody knows how many cases or convictions have resulted from flawed forensic science, said Eric Ferrero, spokesman for the New York-based Innocence Project, headquarters for the national network of innocence projects. "All that we track is how many of the nation's 239 wrongful convictions overturned with DNA testing involved forensic problems," Ferrero said. "On that score, approximately 50 percent involved what we refer to as invalidated or improper forensic science."
In Cannon's case, the discredited forensic evidence was crucial to the conviction, argues Mark J. Geiger, Cannon's attorney. The rest was circumstantial. "If you're telling the jury the bullets from the crime scene are the same as the bullets from a box in the defendant's garage, well, what else do you need? That's it. It's over," Geiger says. "The problem is, it just wasn't true."
Bullet-related evidence is not the only prosecution tool under a credibility cloud. While DNA analysis -- often seen as the "magic bullet" of the criminal justice system -- has reliably identified the guilty and exonerated the innocent, the accuracy of other scientific techniques is shrouded in far more than reasonable doubt. Such evidence includes techniques claiming to analyze hair, bite-mark comparisons, fingerprints, firearms, tool marks, shoe prints and some techniques used in arson investigations.
In February, the National Academy of Sciences released a comprehensive report citing "serious problems" in the scientific evidence being presented every day in courtrooms around the country. The academy found "no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source."
Where does that leave Cannon and others serving life or living on death row?
Oregon Department of Justice officials declined to comment on Cannon's upcoming hearing while acknowledging the challenge of viewing old cases in light of new scientific standards. "The post-conviction relief process is exactly the appropriate place to sort out these things," said Tony Green, a department spokesman. "The FBI is no longer doing these tests because they don't consider them valid. But, if there is other evidence lined up, then we want to get it in front of a judge to sort it out. We're interested in getting to the truth. We have a higher obligation to the truth."
In addition to attacking the bullet evidence, Cannon's legal team will file sworn affidavits arguing: The prosecution mishandled and withheld key evidence; there are at least five credible alternative suspects with motives who should have been investigated; two more people have died suspiciously on the same site as the original crime scene; and the credibility of the prosecution's key witness, who owned that property, is suspect because she has since been convicted of manslaughter for a killing at that same site.
After a decade of proclaiming his innocence, Cannon is scheduled to be heard in the courtroom of Circuit Court Judge Lynn Ashcroft. Geiger, Cannon's attorney, says his client is "incredibly intelligent" and has worked tirelessly on his own behalf.
Cannon's legal team also has relied on the old-school gumshoe skills of Eric Mason, a former investigative reporter who went from broadcast journalism to private investigating and took on Cannon's case a year ago. Mason has reviewed thousands of documents and talked to witnesses who were overlooked a decade earlier.
At the same time the criminal justice system is facing the implications of all the convictions that hinged on discredited forensic science, Mason's investigative work on Cannon's case represents a parallel and equally crushing national trend: the slashing of newspaper staffs and the grave reduction in investigative journalism available to dig into cases, where the law has left a potentially innocent person to die in prison -- either on death row or as a lifer, like Cannon.
A May 20 front-page story in The New York Times reported the loss of investigative journalists whose pavement-pounding reporting resulted in the ultimate righting of wrongs: the exoneration and release of innocent prisoners, many of whom spent decades on death row. The shuttering and shredding of American newsrooms across the country means even fewer potential miscarriages of justice are being investigated.
This may be the greatest crime of all.
Pamela Cytrynbaum, a former Chicago Tribune reporter, is on the New Media Communications faculty at Oregon State University, where she teaches courses in multimedia writing, reporting and wrongful convictions. She is the former director of the Justice Brandeis Innocence Project and former associate director of the Schuster Institute for Investigative Journalism at Brandeis University. She also has taught in Northwestern University's nationally acclaimed Medill Innocence Project and the University of Oregon's School of Journalism and Communication.
Oregon case puts reliability of science itself on trial
by Pamela Cytrynbaum, guest opinion June 21, 2009
Oregon inmate Philip Scott Cannon"Bullet lead analysis" viewed as discredited evidence
Oregon Department of Corrections inmate No. 88329999 is a convicted murderer serving three life sentences for a 1998 triple homicide at a mobile home in West Salem.
Inside the Oregon State Penitentiary, that inmate, Philip Scott Cannon, spends every waking moment poring over legal documents as if his life depends on it. Because it does.
While the 42-year-old inmate may appear to be just another lifer shuffling through the system, he is, in fact, on the front lines of a quiet revolution overtaking the nation's criminal justice system. The "bullet lead analysis" that was the prosecution's primary tool in an otherwise circumstantial case against Cannon has since been discarded as bad science. The FBI no longer uses it.
Cannon and his legal team plan to put this evidence, and his conviction, on trial in a July 7 hearing they hope will result in his release.
We've seen a lot of media coverage of those found innocent, and later released, by the reliable scientific evidence provided by DNA. At the same time, but perhaps with less public attention, many of the other key scientific building blocks used for decades by prosecutors to convict are crumbling. It is not clear how many such tainted convictions exist -- or how often they have resulted in innocent people being convicted.
But for real justice to occur, the news media must shine their most searing and relentless light on the criminal justice system, now more than ever. Fewer investigative reporters have the time or resources to track down witnesses or unearth new evidence, even as more cases of possible wrongful conviction demand attention. For those of us who care about the integrity of the criminal justice system -- and democracy itself -- this case is a canary in the coal mine. What happens next month in Oregon, and in the months to come in courtrooms around the country, should matter to us all.
In fact, forensic science and cases of potential innocence collided again Thursday when the U.S. Supreme Court rejected an Alaska inmate's request for DNA testing, ruling that prisoners do not have a constitutional right to DNA testing that could prove their innocence.
A Polk County jury found Cannon guilty in the 1998 fatal shootings of Jason Kinser, Suzan Osborne and Celesta Graves, whose bodies were found in or beneath a mobile home in West Salem. Cannon testified he was at the residence to fix a plumbing problem but has always maintained his innocence, saying he neither knew about nor had anything to do with the crimes.
A former Oregon State University researcher in the university's Radiation Center provided the evidence now in question when he testified that tests showed bullets found at the crime scene matched those found in Cannon's garage. He told jurors there was only a 1 in 64 million chance of getting that match.
Now Cannon and his legal team are finalizing his claim of "actual innocence" for next month's hearing in Marion County Circuit Court. They will present new evidence intended to show he was convicted primarily on faulty and discredited "junk science" called bullet lead analysis -- evidence so unreliable it has been abandoned by the FBI. This same evidence is also the main forensic tool prosecutors nationwide have used to convict hundreds of defendants, according to a joint investigation last year by The Washington Post and "60 Minutes."
Nobody knows how many cases or convictions have resulted from flawed forensic science, said Eric Ferrero, spokesman for the New York-based Innocence Project, headquarters for the national network of innocence projects. "All that we track is how many of the nation's 239 wrongful convictions overturned with DNA testing involved forensic problems," Ferrero said. "On that score, approximately 50 percent involved what we refer to as invalidated or improper forensic science."
In Cannon's case, the discredited forensic evidence was crucial to the conviction, argues Mark J. Geiger, Cannon's attorney. The rest was circumstantial. "If you're telling the jury the bullets from the crime scene are the same as the bullets from a box in the defendant's garage, well, what else do you need? That's it. It's over," Geiger says. "The problem is, it just wasn't true."
Bullet-related evidence is not the only prosecution tool under a credibility cloud. While DNA analysis -- often seen as the "magic bullet" of the criminal justice system -- has reliably identified the guilty and exonerated the innocent, the accuracy of other scientific techniques is shrouded in far more than reasonable doubt. Such evidence includes techniques claiming to analyze hair, bite-mark comparisons, fingerprints, firearms, tool marks, shoe prints and some techniques used in arson investigations.
In February, the National Academy of Sciences released a comprehensive report citing "serious problems" in the scientific evidence being presented every day in courtrooms around the country. The academy found "no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source."
Where does that leave Cannon and others serving life or living on death row?
Oregon Department of Justice officials declined to comment on Cannon's upcoming hearing while acknowledging the challenge of viewing old cases in light of new scientific standards. "The post-conviction relief process is exactly the appropriate place to sort out these things," said Tony Green, a department spokesman. "The FBI is no longer doing these tests because they don't consider them valid. But, if there is other evidence lined up, then we want to get it in front of a judge to sort it out. We're interested in getting to the truth. We have a higher obligation to the truth."
In addition to attacking the bullet evidence, Cannon's legal team will file sworn affidavits arguing: The prosecution mishandled and withheld key evidence; there are at least five credible alternative suspects with motives who should have been investigated; two more people have died suspiciously on the same site as the original crime scene; and the credibility of the prosecution's key witness, who owned that property, is suspect because she has since been convicted of manslaughter for a killing at that same site.
After a decade of proclaiming his innocence, Cannon is scheduled to be heard in the courtroom of Circuit Court Judge Lynn Ashcroft. Geiger, Cannon's attorney, says his client is "incredibly intelligent" and has worked tirelessly on his own behalf.
Cannon's legal team also has relied on the old-school gumshoe skills of Eric Mason, a former investigative reporter who went from broadcast journalism to private investigating and took on Cannon's case a year ago. Mason has reviewed thousands of documents and talked to witnesses who were overlooked a decade earlier.
At the same time the criminal justice system is facing the implications of all the convictions that hinged on discredited forensic science, Mason's investigative work on Cannon's case represents a parallel and equally crushing national trend: the slashing of newspaper staffs and the grave reduction in investigative journalism available to dig into cases, where the law has left a potentially innocent person to die in prison -- either on death row or as a lifer, like Cannon.
A May 20 front-page story in The New York Times reported the loss of investigative journalists whose pavement-pounding reporting resulted in the ultimate righting of wrongs: the exoneration and release of innocent prisoners, many of whom spent decades on death row. The shuttering and shredding of American newsrooms across the country means even fewer potential miscarriages of justice are being investigated.
This may be the greatest crime of all.
Pamela Cytrynbaum, a former Chicago Tribune reporter, is on the New Media Communications faculty at Oregon State University, where she teaches courses in multimedia writing, reporting and wrongful convictions. She is the former director of the Justice Brandeis Innocence Project and former associate director of the Schuster Institute for Investigative Journalism at Brandeis University. She also has taught in Northwestern University's nationally acclaimed Medill Innocence Project and the University of Oregon's School of Journalism and Communication.
Thursday, May 28, 2009
Must Watch: America's Most Wanted, Saturday, May 30, 2009
The following was originally published in the Columbia (MO) Tribune on May 27, 2009.
Hoping a brother goes free
TV program re-creates trial of Dale Helmig.
By Terry Ganey
Wednesday, May 27, 2009
Columbia lawyer Kenny Hulshof’s performance as a special prosecutor in the murder trial of Dale Helmig will be re-examined in an unusual episode of “America’s Most Wanted” that will be televised Saturday.
“The show is designed to capture bad people and put them away,” said producer Dave Bolton. “This case jumped to our attention because it looked like a huge miscarriage of justice because the bad guy who did the crime was still out there and the innocent guy was put in prison for a crime he did not commit.”
“America’s Most Wanted,” scheduled for broadcast at 8 p.m. Saturday on KQFX-TV (Fox 38), will devote an hour to the investigation and trial of Helmig, now 53, who in 1996 was convicted of murdering his mother. He was sentenced to life in prison without parole.
The body of Norma Helmig, 55, was found in the flood-swollen Osage River near Linn on Aug. 1, 1993. A concrete block had been tied to her body with a nylon rope.
Although Dale Helmig usually lived with his mother near Linn, he said he spent the night of her murder at a motel in Fulton because flooding had blocked his route home. But Osage County Sheriff Carl Fowler said there was a window of time in which the floodwaters receded long enough to give Helmig an opportunity to commit the crime. Prosecutors said Helmig and his mother had argued over a $200 telephone bill.
Bolton said the program will focus on the sheriff’s investigation and re-create Helmig’s trial.
“When you look at the court transcript and read what the prosecution said and what the prosecution’s witnesses said happened, and you reinvestigate and find what really happened, you learn that the two do not mesh,” Bolton said. “Any objective person looking at the case and looking at the facts and looking into this criminal trial would say he did not get a fair trial and deserves another shot at justice.”
Hulshof, who worked as a special prosecutor for then-Attorney General Jay Nixon, helped argue the case against Helmig. Hulshof did not respond to a request for comment. In previous interviews he said he believed Helmig was guilty as charged and that it was his duty “to try to convince the jury of that.”
“Whatever their decision was would have been justice in that case,” Hulshof said in a 2005 interview. “And they unanimously found him guilty.”
In January, a judge overturned a murder conviction in another Hulshof-argued case. Cole County Circuit Judge Richard Callahan ruled evidence was withheld in the case of Joshua Kezer, who spent more than 14 years in prison for murder. Hulshof said he also stood by that conviction.
Hulshof served 12 years in Congress and was the unsuccessful Republican candidate for governor against Nixon last year. Hulshof is now an attorney with the Polsinelli Shughart law firm in Kansas City.
Helmig, who is being held at the Western Missouri Correctional Center in Cameron, has insisted he is innocent of the crime and that he loved his mother. Two previous documentaries have raised questions about his case. In 2000, a pilot television show, “Was Justice Denied,” challenged the outcome of Helmig’s trial. Later, students at Illinois State University in Normal completed “A Matter of Innocence: The Dale Helmig Story.” In 2005, the St. Louis Post-Dispatch published “Questions of Justice,” a three-part series on Helmig’s case.
Dale Helmig’s younger brother, Richard Helmig of Rocky Mount in Morgan County, contacted “America’s Most Wanted” several years ago about his brother’s predicament.
“I believe he is 100 percent innocent,” Richard Helmig said. “We’re hoping that somebody might call in with some knowledge about the case.” He said “America’s Most Wanted” would protect the identities of those coming forward with new information.
Helmig said he talks to his brother in prison every day by phone. “He’s holding up well,” Richard Helmig said. “He has a lot of high hopes.”
Reach Terry Ganey at 573-815-1708 or e-mail tganey@columbiatribune.com.
Hoping a brother goes free
TV program re-creates trial of Dale Helmig.
By Terry Ganey
Wednesday, May 27, 2009
Columbia lawyer Kenny Hulshof’s performance as a special prosecutor in the murder trial of Dale Helmig will be re-examined in an unusual episode of “America’s Most Wanted” that will be televised Saturday.
“The show is designed to capture bad people and put them away,” said producer Dave Bolton. “This case jumped to our attention because it looked like a huge miscarriage of justice because the bad guy who did the crime was still out there and the innocent guy was put in prison for a crime he did not commit.”
“America’s Most Wanted,” scheduled for broadcast at 8 p.m. Saturday on KQFX-TV (Fox 38), will devote an hour to the investigation and trial of Helmig, now 53, who in 1996 was convicted of murdering his mother. He was sentenced to life in prison without parole.
The body of Norma Helmig, 55, was found in the flood-swollen Osage River near Linn on Aug. 1, 1993. A concrete block had been tied to her body with a nylon rope.
Although Dale Helmig usually lived with his mother near Linn, he said he spent the night of her murder at a motel in Fulton because flooding had blocked his route home. But Osage County Sheriff Carl Fowler said there was a window of time in which the floodwaters receded long enough to give Helmig an opportunity to commit the crime. Prosecutors said Helmig and his mother had argued over a $200 telephone bill.
Bolton said the program will focus on the sheriff’s investigation and re-create Helmig’s trial.
“When you look at the court transcript and read what the prosecution said and what the prosecution’s witnesses said happened, and you reinvestigate and find what really happened, you learn that the two do not mesh,” Bolton said. “Any objective person looking at the case and looking at the facts and looking into this criminal trial would say he did not get a fair trial and deserves another shot at justice.”
Hulshof, who worked as a special prosecutor for then-Attorney General Jay Nixon, helped argue the case against Helmig. Hulshof did not respond to a request for comment. In previous interviews he said he believed Helmig was guilty as charged and that it was his duty “to try to convince the jury of that.”
“Whatever their decision was would have been justice in that case,” Hulshof said in a 2005 interview. “And they unanimously found him guilty.”
In January, a judge overturned a murder conviction in another Hulshof-argued case. Cole County Circuit Judge Richard Callahan ruled evidence was withheld in the case of Joshua Kezer, who spent more than 14 years in prison for murder. Hulshof said he also stood by that conviction.
Hulshof served 12 years in Congress and was the unsuccessful Republican candidate for governor against Nixon last year. Hulshof is now an attorney with the Polsinelli Shughart law firm in Kansas City.
Helmig, who is being held at the Western Missouri Correctional Center in Cameron, has insisted he is innocent of the crime and that he loved his mother. Two previous documentaries have raised questions about his case. In 2000, a pilot television show, “Was Justice Denied,” challenged the outcome of Helmig’s trial. Later, students at Illinois State University in Normal completed “A Matter of Innocence: The Dale Helmig Story.” In 2005, the St. Louis Post-Dispatch published “Questions of Justice,” a three-part series on Helmig’s case.
Dale Helmig’s younger brother, Richard Helmig of Rocky Mount in Morgan County, contacted “America’s Most Wanted” several years ago about his brother’s predicament.
“I believe he is 100 percent innocent,” Richard Helmig said. “We’re hoping that somebody might call in with some knowledge about the case.” He said “America’s Most Wanted” would protect the identities of those coming forward with new information.
Helmig said he talks to his brother in prison every day by phone. “He’s holding up well,” Richard Helmig said. “He has a lot of high hopes.”
Reach Terry Ganey at 573-815-1708 or e-mail tganey@columbiatribune.com.
Monday, May 25, 2009
Wisconsin State Journal Editorial: Impartial justice? More doubts about the Wisconsin Supreme Court
The following editorial was originally published in the Wisconsin State Journal on May 23, 2009.
Impartial justice? More doubts about the Wisconsin Supreme Court
The recent attempt by a lawyer to remove Supreme Court Justice Michael Gableman from a case is a foreboding indicator of a grave problem:
Wisconsin's system of electing justices is putting at risk our trust in fair, impartial justice from our highest state court.
The best solution is a reform called merit selection.
The request that Gableman remove himself from a case concerns a pledge he made during his 2008 campaign for a seat on the Supreme Court. Gableman said he would not "look for loopholes to put criminals back on our streets."
Lawyer Robert Henak claims the statement shows bias or the appearance of bias against Henak's client, appealing a conviction by claiming ineffective counsel at his trial.
Whether Henak's request has substance -- or is nothing more than a lawyer trying every possible argument for his client -- will be up to Gableman, and potentially the other justices, to determine.
However, the request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin's have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises. "Obviously, (Henak's) motion points out the problem as the race has become more issue-oriented," former Supreme Court Justice Janine Geske told the Milwaukee Journal-Sentinel.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.
The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?
Concern is so widespread that the state Supreme Court justices will conduct hearings this fall on whether judges must remove themselves from cases involving campaign contributors. In addition, the U.S. Supreme Court is soon to decide a West Virginia case about a state supreme court justice who remained on a case involving a campaign supporter.
Moreover, as if the current situation weren't questionable enough, "You ain't seen nothin' yet."
Wisconsin law has previously tried to restrain how far judicial candidates can go in making issue-oriented campaign promises. But that restraint is headed to the scrap heap. Court rulings in Wisconsin and elsewhere are paving the way toward full-blown partisan judicial elections.
At the crux of the problem is the threat to the checks and balances so fundamental to American government. Our lawmakers and governors are supposed to be partial to agendas that reflect the will of the majority. That's why we elect them by majority vote.
In contrast, the judicial branch -- especially supreme courts -- serves as an important check on the majority's power to trample on minority rights guaranteed by law.
When justices are elected after big-money campaigns in which partisan sides back candidates partial to their politics, the system of checks and balances is jeopardized.
And so is our trust in the court's fairness.
Reform is required. Merit selection is the right choice.
What’s merit selection?
The State Journal editorial board supports merit selection as an alternative to Wisconsin’s Supreme Court elections, which have become increasingly influenced by partisan politics and misleading ads sponsored by outside interests.
The best merit selection systems employ a diverse, nonpartisan committee appointed by a variety of sources.
The committee recruits candidates and, in a public process, evaluates each according to character, competency, experience and related qualifications.
The committee then submits a list of finalists to the governor or another authority, who makes the selection from the list.
Justices are held accountable for their performance through periodic reviews by the committee or by voters who decide whether to retain a justice in a yes-or-no, uncontested election at the end of a term.
Twenty-four states and the District of Columbia already appoint their highest courts through merit selection. Merit reform is under discussion in Texas and Pennsylvania. In neighboring Minnesota merit selection legislation won committee approval this year before stalling as lawmakers dealt with a budget crisis.
For a fuller explanation of a good merit selection system, see the description of Arizona’s process
Impartial justice? More doubts about the Wisconsin Supreme Court
The recent attempt by a lawyer to remove Supreme Court Justice Michael Gableman from a case is a foreboding indicator of a grave problem:
Wisconsin's system of electing justices is putting at risk our trust in fair, impartial justice from our highest state court.
The best solution is a reform called merit selection.
The request that Gableman remove himself from a case concerns a pledge he made during his 2008 campaign for a seat on the Supreme Court. Gableman said he would not "look for loopholes to put criminals back on our streets."
Lawyer Robert Henak claims the statement shows bias or the appearance of bias against Henak's client, appealing a conviction by claiming ineffective counsel at his trial.
Whether Henak's request has substance -- or is nothing more than a lawyer trying every possible argument for his client -- will be up to Gableman, and potentially the other justices, to determine.
However, the request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin's have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises. "Obviously, (Henak's) motion points out the problem as the race has become more issue-oriented," former Supreme Court Justice Janine Geske told the Milwaukee Journal-Sentinel.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.
The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?
Concern is so widespread that the state Supreme Court justices will conduct hearings this fall on whether judges must remove themselves from cases involving campaign contributors. In addition, the U.S. Supreme Court is soon to decide a West Virginia case about a state supreme court justice who remained on a case involving a campaign supporter.
Moreover, as if the current situation weren't questionable enough, "You ain't seen nothin' yet."
Wisconsin law has previously tried to restrain how far judicial candidates can go in making issue-oriented campaign promises. But that restraint is headed to the scrap heap. Court rulings in Wisconsin and elsewhere are paving the way toward full-blown partisan judicial elections.
At the crux of the problem is the threat to the checks and balances so fundamental to American government. Our lawmakers and governors are supposed to be partial to agendas that reflect the will of the majority. That's why we elect them by majority vote.
In contrast, the judicial branch -- especially supreme courts -- serves as an important check on the majority's power to trample on minority rights guaranteed by law.
When justices are elected after big-money campaigns in which partisan sides back candidates partial to their politics, the system of checks and balances is jeopardized.
And so is our trust in the court's fairness.
Reform is required. Merit selection is the right choice.
What’s merit selection?
The State Journal editorial board supports merit selection as an alternative to Wisconsin’s Supreme Court elections, which have become increasingly influenced by partisan politics and misleading ads sponsored by outside interests.
The best merit selection systems employ a diverse, nonpartisan committee appointed by a variety of sources.
The committee recruits candidates and, in a public process, evaluates each according to character, competency, experience and related qualifications.
The committee then submits a list of finalists to the governor or another authority, who makes the selection from the list.
Justices are held accountable for their performance through periodic reviews by the committee or by voters who decide whether to retain a justice in a yes-or-no, uncontested election at the end of a term.
Twenty-four states and the District of Columbia already appoint their highest courts through merit selection. Merit reform is under discussion in Texas and Pennsylvania. In neighboring Minnesota merit selection legislation won committee approval this year before stalling as lawmakers dealt with a budget crisis.
For a fuller explanation of a good merit selection system, see the description of Arizona’s process
Friday, May 15, 2009
Guest Shot: I put away an innocent man
The following opinion was originally published in the Dallas News.
James A. Fry: I put away an innocent man
03:06 PM CDT on Thursday, May 14, 2009
When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.
Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.
I am proud of having been a prosecutor; it is honorable work. In fact, I still have a portrait of former Dallas County District Attorney Henry Wade in my law office. He was a good man, and he gave me a chance to be a trial lawyer. However, my unknowing involvement in prosecuting an innocent man has been a troubling experience.
Chatman's story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.
As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.
The fault in Chatman's case, however, lies not with the victim, who honestly believed she had identified the right man. Instead, it lies in part with the flawed witness identification procedures used by law enforcement agencies. Research has shown that relatively small changes can greatly improve witness accuracy, changes we urgently need to implement.
Witness identification is not the only contributor to wrongful convictions. Far from it. Politicians – a category that includes elected officials, district attorneys and judges – need to be less concerned about remaining in office and more concerned with determining the truth. More effort needs to be given to see that court-appointed attorneys have adequate compensation and investigation funds. Until these issues are addressed and reforms put in place, the number of innocent men and women sent to prison will continue to rise.
Chatman's case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?
For years, Texas has led the nation in the number of executions. Why don't we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?
For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.
I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.
But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let's get this system fixed.
James A. Fry was a Dallas County assistant district attorney from 1980 to 1982 and currently practices family law in Sherman. His e-mail address is jamesfrypc@verizon.net.
James A. Fry: I put away an innocent man
03:06 PM CDT on Thursday, May 14, 2009
When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.
Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.
I am proud of having been a prosecutor; it is honorable work. In fact, I still have a portrait of former Dallas County District Attorney Henry Wade in my law office. He was a good man, and he gave me a chance to be a trial lawyer. However, my unknowing involvement in prosecuting an innocent man has been a troubling experience.
Chatman's story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.
As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.
The fault in Chatman's case, however, lies not with the victim, who honestly believed she had identified the right man. Instead, it lies in part with the flawed witness identification procedures used by law enforcement agencies. Research has shown that relatively small changes can greatly improve witness accuracy, changes we urgently need to implement.
Witness identification is not the only contributor to wrongful convictions. Far from it. Politicians – a category that includes elected officials, district attorneys and judges – need to be less concerned about remaining in office and more concerned with determining the truth. More effort needs to be given to see that court-appointed attorneys have adequate compensation and investigation funds. Until these issues are addressed and reforms put in place, the number of innocent men and women sent to prison will continue to rise.
Chatman's case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?
For years, Texas has led the nation in the number of executions. Why don't we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?
For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.
I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.
But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let's get this system fixed.
James A. Fry was a Dallas County assistant district attorney from 1980 to 1982 and currently practices family law in Sherman. His e-mail address is jamesfrypc@verizon.net.
Saturday, May 09, 2009
Guest Shot: Movie and TV Series Feature Real-Life Wrongful Convictions
The following was originally published in Reason Magazine.
Texas Justice on Trial
A new movie and TV show spotlight the legacy of race and injustice in the Lone Star State
Radley Balko | May 8, 2009
The new movie American Violet is based on the real story of Regina Kelly, a woman from the small town of Hearne, Texas who was wrongly arrested during a drug sweep on a public housing complex. Residents say the sweeps happened every year. Cops toting big guns and dressed in SWAT gear would jump out of moving vans (and once even a helicopter) and proceed to weed out a large portion of the town's black population. In November 2000, Kelly was one of 26 arrested. All but one of them were black. She was innocent. (At first she thought she had been arrested for overdue parking tickets.)
Facing 15-20 years in jail for selling drugs in a school zone, Kelly was pressured by her public defender to take a plea that would have given her probation. Other women in the complex had already done so, including some that Kelly suspects are also innocent. She refused. Pleading guilty would have made her a felon, costing her to forfeit her housing and possibly lose custody of her children. So she waited for her trial.
Five months later the charges were dropped. During the first trial that resulted from the mass arrests, it came out that the police informant—whose word was basically the only evidence that the police had in many of the cases—had been lying. But by that point several people had already accepted plea aggrangements and been duly convicted.
Thus far American Violet has been warmly reviewed. But some critics have balked at the movie's ham-handedness, noting that the villains—the racist district attorney and the hapless public defender—come off as flat and cliched. They're right. Much of the movie does follow the worn template of the southern courtroom drama, right down to the fish-out-of-water Jewish lawyer from the American Civil Liberties Union who awkwardly arrives in town to save the day.
But there's no reason to blame screenwriter Bill Haney. That's how the story actually happened. Sure, it would be nice to show a district attorney who had learned from his mistakes, who vowed to temper his pursuit of future convictions by admitting that launching broad drug sweeps based only on the word of shady informants will sometimes result in the arrest of innocent people.
The problem is that if the film had shown that sort of character development, it would no longer be true to the story it's based on. Texas District Attorney John Paschall didn't change one bit. After dropping the charges against Kelly and the others who hadn't yet accepted plea bargains, he said he was still certain they were guilty—just as he does in the movie. He told the Dallas Morning News, "The only way I'd watch [American Violet], I'd have to be handcuffed, tied to a chair and you'd have to tape my eyes open."
If American Violet feels preachy and overbearing at times, it's because the truth itself is sometimes hard to believe. The new reality show Dallas DNA, which debuted last week on the cable network Investigation Discovery, is a good illustration. The show follows Dallas District Attorney Craig Watkins as he attempts to uncover and correct the wrongful convictions of his predecessors, most notably the longtime law-and-order legend Henry Wade.
Watkins, a former defense attorney, became Texas's first black district attorney after being swept into office in the anti-GOP backlash of 2006. He has since made national headlines by setting up what he calls a Conviction Integrity Unit, which consists of assistant district attorneys whose sole job is to work with groups like the Texas Innocence Project to find possible incidences of wrongful conviction.
In an interview with Reason last year, Watkins discussed how he's trying to purge his office of the poisonous culture that long pervaded its halls, a culture so corrupt that Watkins says prosecutors considered getting the innocent convicted as guilty to be a badge of honor—a testament to their power in the courtroom.
That might seem far-fetched until you consider that DNA testing has so far exonerated 18 people in Dallas, which is more than any other city in the country (and more than most states). And by Watkins own admission, he is really just getting started. His office is currently reviewing more than 100 other cases, and there are hundreds more to sort through. And these, of course, are only those cases for which DNA testing could be dispositive of someone's guilt.
Dallas' hang 'em high culture was uniquely oblivious to concepts like fairness and justice over the years, and the high number of exonerations is likely to rise. Consider this: Facing a budget shortfall in the the early 1980s, the county started sending its biological evidence to a private lab for storage. That evidence has been preserved, allowing Watkins' Conviction Integrity Unit to go back 30 years in search of wrongful convictions. In other jurisdictions, evidence from older cases has usually deteriorated, or has been destroyed.
Dallas DNA isn't fictionalized, but it's just as moving in places as American Violet. More notably, viewers unfamiliar with groups like the Innocence Project or with the spate of DNA exonerations we've seen over the last decade may well find parts of the show just as implausible as the more melodramatic portions of the movie.
After 40 years of "get tough on crime" rhetoric and policies, we can now clearly measure the impact on the country's criminal justice system. The sort of multi-jurisdictional drug task forces that led to the raids and wrongful arrests in Texas may have been phased out in that state, but they still thrive—complete with federal funding—in most other states. Watkins has made headlines precisely because he's such a rare specimen, a prosecutor who is actively seeking out and correcting wrongful convictions, instead of fighting like hell to preserve them.
In that sense, both Dallas DNA and American Violet have satisfying endings. You're left with the feeling that justice prevailed, even if it took a long time coming. For productions dealing with the inadequacies of the criminal justice system, that may be the most glaring "truth is stranger than fiction" moment of all.
Radley Balko is a senior editor at Reason magazine.
Texas Justice on Trial
A new movie and TV show spotlight the legacy of race and injustice in the Lone Star State
Radley Balko | May 8, 2009
The new movie American Violet is based on the real story of Regina Kelly, a woman from the small town of Hearne, Texas who was wrongly arrested during a drug sweep on a public housing complex. Residents say the sweeps happened every year. Cops toting big guns and dressed in SWAT gear would jump out of moving vans (and once even a helicopter) and proceed to weed out a large portion of the town's black population. In November 2000, Kelly was one of 26 arrested. All but one of them were black. She was innocent. (At first she thought she had been arrested for overdue parking tickets.)
Facing 15-20 years in jail for selling drugs in a school zone, Kelly was pressured by her public defender to take a plea that would have given her probation. Other women in the complex had already done so, including some that Kelly suspects are also innocent. She refused. Pleading guilty would have made her a felon, costing her to forfeit her housing and possibly lose custody of her children. So she waited for her trial.
Five months later the charges were dropped. During the first trial that resulted from the mass arrests, it came out that the police informant—whose word was basically the only evidence that the police had in many of the cases—had been lying. But by that point several people had already accepted plea aggrangements and been duly convicted.
Thus far American Violet has been warmly reviewed. But some critics have balked at the movie's ham-handedness, noting that the villains—the racist district attorney and the hapless public defender—come off as flat and cliched. They're right. Much of the movie does follow the worn template of the southern courtroom drama, right down to the fish-out-of-water Jewish lawyer from the American Civil Liberties Union who awkwardly arrives in town to save the day.
But there's no reason to blame screenwriter Bill Haney. That's how the story actually happened. Sure, it would be nice to show a district attorney who had learned from his mistakes, who vowed to temper his pursuit of future convictions by admitting that launching broad drug sweeps based only on the word of shady informants will sometimes result in the arrest of innocent people.
The problem is that if the film had shown that sort of character development, it would no longer be true to the story it's based on. Texas District Attorney John Paschall didn't change one bit. After dropping the charges against Kelly and the others who hadn't yet accepted plea bargains, he said he was still certain they were guilty—just as he does in the movie. He told the Dallas Morning News, "The only way I'd watch [American Violet], I'd have to be handcuffed, tied to a chair and you'd have to tape my eyes open."
If American Violet feels preachy and overbearing at times, it's because the truth itself is sometimes hard to believe. The new reality show Dallas DNA, which debuted last week on the cable network Investigation Discovery, is a good illustration. The show follows Dallas District Attorney Craig Watkins as he attempts to uncover and correct the wrongful convictions of his predecessors, most notably the longtime law-and-order legend Henry Wade.
Watkins, a former defense attorney, became Texas's first black district attorney after being swept into office in the anti-GOP backlash of 2006. He has since made national headlines by setting up what he calls a Conviction Integrity Unit, which consists of assistant district attorneys whose sole job is to work with groups like the Texas Innocence Project to find possible incidences of wrongful conviction.
In an interview with Reason last year, Watkins discussed how he's trying to purge his office of the poisonous culture that long pervaded its halls, a culture so corrupt that Watkins says prosecutors considered getting the innocent convicted as guilty to be a badge of honor—a testament to their power in the courtroom.
That might seem far-fetched until you consider that DNA testing has so far exonerated 18 people in Dallas, which is more than any other city in the country (and more than most states). And by Watkins own admission, he is really just getting started. His office is currently reviewing more than 100 other cases, and there are hundreds more to sort through. And these, of course, are only those cases for which DNA testing could be dispositive of someone's guilt.
Dallas' hang 'em high culture was uniquely oblivious to concepts like fairness and justice over the years, and the high number of exonerations is likely to rise. Consider this: Facing a budget shortfall in the the early 1980s, the county started sending its biological evidence to a private lab for storage. That evidence has been preserved, allowing Watkins' Conviction Integrity Unit to go back 30 years in search of wrongful convictions. In other jurisdictions, evidence from older cases has usually deteriorated, or has been destroyed.
Dallas DNA isn't fictionalized, but it's just as moving in places as American Violet. More notably, viewers unfamiliar with groups like the Innocence Project or with the spate of DNA exonerations we've seen over the last decade may well find parts of the show just as implausible as the more melodramatic portions of the movie.
After 40 years of "get tough on crime" rhetoric and policies, we can now clearly measure the impact on the country's criminal justice system. The sort of multi-jurisdictional drug task forces that led to the raids and wrongful arrests in Texas may have been phased out in that state, but they still thrive—complete with federal funding—in most other states. Watkins has made headlines precisely because he's such a rare specimen, a prosecutor who is actively seeking out and correcting wrongful convictions, instead of fighting like hell to preserve them.
In that sense, both Dallas DNA and American Violet have satisfying endings. You're left with the feeling that justice prevailed, even if it took a long time coming. For productions dealing with the inadequacies of the criminal justice system, that may be the most glaring "truth is stranger than fiction" moment of all.
Radley Balko is a senior editor at Reason magazine.
Thursday, April 23, 2009
Guest Shot: Jurors regret convicting innocent man
The following opinion was originally published in the Houston Chronicle on April 18, 2009.
Jurors regret convicting innocent man
By CAROL BOHLS, VELMA DIAMOND and LIZ ROLAND
April 18, 2009
When we were called to serve as jurors in an Austin sexual assault and murder case, we could never have predicted the ending of this story. Twelve years after we found Richard Danziger guilty of aggravated sexual assault, new DNA evidence revealed that Richard was, in fact, innocent. This shocking discovery left us confused, angry and wondering how this tragic error could have ever happened.
The centerpiece of the case presented against Danziger in 1990 was testimony provided by his friend and alleged co-conspirator, Christopher Ochoa. When Ochoa took the stand to testify against Danziger, he presented a convincing summary of events that left little doubt in our minds that both were guilty of this terrible crime. What we did not know, however, was that Ochoa’s confession and testimony were false — he only confessed and agreed to testify against Danziger after 20 intense hours of interrogation.
Unfortunately, Danziger’s case is not unique. False confessions have played a role in about 25 percent of the 234 DNA exonerations across the country. Whether because of mental incapacity, youth or persuasive threats, DNA evidence proved that each of these people was convicted of a crime he did not commit.
We were horrified to learn after Danziger’s exoneration that Ochoa’s interrogation was characterized by lies about inculpatory evidence and threats that if he did not confess and testify against Danziger, he would receive the death penalty. None of this came to light during the trial, however, because there was no record of the interrogation procedure. Had we been given the opportunity to see the context of Ochoa’s confession, including the coercive tactics that were used for hours against him, we would have at least had something to deliberate about. We did the best we could with the evidence provided to us; unfortunately, that evidence was dangerously incomplete, undocumented and untrue.
It has taken us a long time to come to terms with what happened to Danziger — in many ways we still haven’t. We are still dismayed at participating in what we can only describe as the destruction of a young man’s life. Not only were Ochoa and Danziger wrongly imprisoned, but Danziger suffered a horrible attack while incarcerated that left him seriously disabled for the rest of his life. We still share with family and friends the resounding negative impact this experience has had on our lives and our opinions of the criminal justice system.
If interrogations are recorded in their entirety — from the reading of rights to the end — jurors will have access to a clear, complete picture of the circumstances that led to a confession. This is essential in order to effectively evaluate the quality of that evidence. While many police departments have begun to record suspect interrogations, there is currently no requirement that they do so. Some things are too important to leave optional, and we think this is one of them. A complete record of suspect interrogations documents a crucial part of a criminal investigation, and it is essential for jurors to do their jobs well and reach justice.
Police officers who record interrogations know first-hand the benefits of such a policy, too. This powerful tool protects them from false claims of abuse and provides the best evidence possible to convict the guilty. By taking the step to require recorded interrogations, Texas can demonstrate to the public that we have learned from our mistakes and can begin to regain the trust that has been lost through misconduct and wrongful conviction. We will settle for nothing less than the best quality evidence possible.
Bohls, of Austin, Diamond, of Clifton, Mo., and Roland, of Pflugerville, were jurors in the wrongful conviction case of Richard Danizger.
Jurors regret convicting innocent man
By CAROL BOHLS, VELMA DIAMOND and LIZ ROLAND
April 18, 2009
When we were called to serve as jurors in an Austin sexual assault and murder case, we could never have predicted the ending of this story. Twelve years after we found Richard Danziger guilty of aggravated sexual assault, new DNA evidence revealed that Richard was, in fact, innocent. This shocking discovery left us confused, angry and wondering how this tragic error could have ever happened.
The centerpiece of the case presented against Danziger in 1990 was testimony provided by his friend and alleged co-conspirator, Christopher Ochoa. When Ochoa took the stand to testify against Danziger, he presented a convincing summary of events that left little doubt in our minds that both were guilty of this terrible crime. What we did not know, however, was that Ochoa’s confession and testimony were false — he only confessed and agreed to testify against Danziger after 20 intense hours of interrogation.
Unfortunately, Danziger’s case is not unique. False confessions have played a role in about 25 percent of the 234 DNA exonerations across the country. Whether because of mental incapacity, youth or persuasive threats, DNA evidence proved that each of these people was convicted of a crime he did not commit.
We were horrified to learn after Danziger’s exoneration that Ochoa’s interrogation was characterized by lies about inculpatory evidence and threats that if he did not confess and testify against Danziger, he would receive the death penalty. None of this came to light during the trial, however, because there was no record of the interrogation procedure. Had we been given the opportunity to see the context of Ochoa’s confession, including the coercive tactics that were used for hours against him, we would have at least had something to deliberate about. We did the best we could with the evidence provided to us; unfortunately, that evidence was dangerously incomplete, undocumented and untrue.
It has taken us a long time to come to terms with what happened to Danziger — in many ways we still haven’t. We are still dismayed at participating in what we can only describe as the destruction of a young man’s life. Not only were Ochoa and Danziger wrongly imprisoned, but Danziger suffered a horrible attack while incarcerated that left him seriously disabled for the rest of his life. We still share with family and friends the resounding negative impact this experience has had on our lives and our opinions of the criminal justice system.
If interrogations are recorded in their entirety — from the reading of rights to the end — jurors will have access to a clear, complete picture of the circumstances that led to a confession. This is essential in order to effectively evaluate the quality of that evidence. While many police departments have begun to record suspect interrogations, there is currently no requirement that they do so. Some things are too important to leave optional, and we think this is one of them. A complete record of suspect interrogations documents a crucial part of a criminal investigation, and it is essential for jurors to do their jobs well and reach justice.
Police officers who record interrogations know first-hand the benefits of such a policy, too. This powerful tool protects them from false claims of abuse and provides the best evidence possible to convict the guilty. By taking the step to require recorded interrogations, Texas can demonstrate to the public that we have learned from our mistakes and can begin to regain the trust that has been lost through misconduct and wrongful conviction. We will settle for nothing less than the best quality evidence possible.
Bohls, of Austin, Diamond, of Clifton, Mo., and Roland, of Pflugerville, were jurors in the wrongful conviction case of Richard Danizger.
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