Monday, June 29, 2015

Innocence, Inc.

The following was posted by Scott Greenfield on his blog, Simple Justice, on June 16, 2015.

When Jeff Blackburn, a founder of the Innocence Project of Texas and its chief counsel, tendered his resignation, it raised a storm of controversy. Jeff was gracious toward his organization, but it wasn’t his way to go quietly into the night.  He didn’t quit without reason, and yet he didn’t seek to tank the organization he built that had accomplished extraordinary things.  It’s not that the legal system in Texas is so much worse than anywhere else, but that they like killing people down there.

But then came an “announcement” that was more than he could take.  It hit the fan from three sides, the IPTX website, the Houston Chronicle and a blog, Grits for Breakfast.  Aside from Jeff, the other person who ran the show was the IPTX executive director, Nick Vilbas.  Together, they made an underfunded, overworked organization do things that no one would have believed possible. They exonerated the innocent.

While Nick remains, as far as he knows, Executive Director, having made a promise to stay on long enough to facilitate the transition to “new management,” and honoring his promise to do so, because honorable guys do that, the announcement hit hard.  There was a new Executive Director. Not just new, but one who had worked at IPTX before, but was “let go” as he just wasn’t worth keeping on.
He wasn’t a lawyer. He lacked a firm grasp of what lawyers do, grossly overestimating his knowledge of law and the legal system. He didn’t even like lawyers and had little respect for their efforts.  That didn’t stop him from promoting his own views, often naïve and puny, always self-aggrandizing, but not always with high regard for the truth.

Yet, there it was, in black and white, a new Executive Director was named, and he was going to lead the Innocence Project of Texas to a “new era.”  This was more than Jeff Blackburn could stomach.  I asked Jeff what all this meant, and in an email Jeff let loose.
Hey Scott,
Thanks for asking me to comment on Scott Henson’s post about his becoming the new Executive Director of the Innocence Project of Texas (IPTX), and, more generally, about what is going on down here.
To the casual reader of “Grits for Breakfast,” everything must seem just peachy in Texas: we learn that there has been a “significant bout of staff turnover” at IPTX and that Scott, my “longtime friend,” has agreed to step in and become the new leader. In a gushy article in the Houston Chronicle, it is even suggested that his ascension will usher in some sort of “new era” of reforms at a “crucial” time.
That’s ok so far as it goes, I guess. The problem is that it doesn’t go anywhere at all. This post, like the IPTX’s official line on why I left, fails to explain why these events have happened, what is happening to the “innocence movement” in Texas and around the country, and what it means for criminal defense lawyers.
That’s a mistake. Big changes are going on in criminal defense and criminal justice reform right now, and what is happening in IPTX is only a small example. We need to discuss these changes freely and out in the open. Your blog is about the only place that can be done, and I sincerely thank you for that.
Here’s my contribution to that discussion:
Ten years ago, we created IPTX to be a fighting organization of criminal defense lawyers that could win cases, then use those victories to get statutes passed. We had a very clear, lawyer-driven, guerilla strategy. After a fair number of setbacks and missteps over the years, it worked- we got a lot of people out of prison, got some good stuff passed in the legislature, and managed to take our long-shot victory in the Tim Cole case all the way to getting a statue built in his honor and, now, an official commission named after him.
As lawyers, we knew what mattered to criminal defendants and what did not. We did all of this without getting co-opted into the state government even though we got a $100,000.00 per year payment from it through our Texas Tech clinic. We also avoided getting suckered into advocating minor, inoffensive reforms and calling them big just so we could say we had done something- a standard practice in Texas and one that Scott (Henson) is intimately familiar with. We picked, we chose, and overall we did pretty well. Of course, we were broke all the time and it required loads of unpaid effort, but who the hell was counting hours or money? It was the right thing to do and it made us feel fully alive.
While we were doing that some big changes happened. These changes put our ideas about IPTX on a collision course with the reality of power and money. Eventually, they would blow the whole project apart.
Three things happened:
1. The New York-based Innocence Project transformed itself into a multi-million dollar-a- year business replete with professional fundraisers, plaques for lawyers from Goldman Sachs, and $100,000.00 per table galas. These people began to do things that were solely designed to get publicity and make them money. They overstated the nature and extent of problems in forensic science. They exaggerated the number of wrongful death penalty convictions. They tried to kill good legislation.
Some of this behavior, all of which was done arrogantly and without ever even consulting us, messed up relationships we had formed with law enforcement officials. All of it messed up our ability to raise money for our work in this state. Finally, the New York people changed the structure of the national “Innocence Network” to allow them to be in full control. Do they still have good lawyers who do good work? Absolutely. Has that part of their operation been eclipsed by their United Way-level need to keep getting more and more money and please donors? Totally. Is there an innocence “movement” anymore? Not really. There’s just Goldman Sachs and business, baby, business.
2. Even bigger changes occurred during this period within the criminal defense bar as a whole. As a result of major sociological changes, criminal defense lawyers are now either fabulously-well-to-do lawyers that represent fabulously-well-to-do defendants, clowns with overblown websites who aspire to be fabulously-well-to-do lawyers, or incompetent, faceless drabs doing court appointments for a few hundred bucks a throw. There are plenty of us in the middle, of course- good lawyers who do good work because we believe in it- but our voices are increasingly drowned out. The big, top-down outfits like NACDL and our state group in Texas, TCDLA, reflect this shift- the seminars are slicker and more expensive, the big shots are praised more lavishly, and the efforts to get money from people like the Koch brothers or the government are more strenuous and frequently successful. So what’s wrong with all that?
Everything: criminal defense lawyers, whether we get it or not, are the canaries in the coal mine of this country’s government. Our calling and purpose is to sound the alarm against repression, organize resistance to it, and defend the interests of the poor slobs who don’t know any better out there. Are our national and state organizations doing that? Not really. Are we doing it on our own in our towns and cities? Not really, and damn sure not enough.
3. While facing these pressures, there was something even more insidious: the drive of the government in Texas to co-opt innocence work and housebreak the IPTX. The most recent example of this is the creation of the Tim Cole Exoneration Review Commission, a move being heralded as some sort of breakthrough in criminal justice reform. IPTX will be given a rotating token slot on this “Can’t-And-Won’t Do” commission, which will undoubtedly declare before long that the “problem” of wrongful convictions is “solved”. Does anyone want to bet that this commission will come within forty miles of dealing with the real reason people get wrongfully convicted in this state- our lack of a public defender system?
IPTX was faced with a choice in the face of these pressures- either go along and get along or change direction and break free of the hypocrisy. Nick Vilbas, the just-replaced Executive Director of IPTX and I wanted us to change direction. We wanted to break from the big-money phoniness of both the New York people and the leadership of the criminal defense organizations. We wanted to find a way back to the heart and soul of the criminal defense lawyers we are and believe in being. We chose to resist, even to the point of refusing money for the law school operation, getting co-opted by the government in Texas.
We lost that vote. The others won. I quit over it, and Nick will be out soon enough.
The folks who chose to stay in IPTX are good, well-intentioned lawyers. Scott Henson is indeed my old friend, and I wish him well with his “new era”.
My idea of a “new era” is a lot different than his, however.
My idea of a “new era” is one in which criminal defense lawyers start organizing at the local level for political change- change that can politicize the criminal justice system by demanding better indigent defense, citizen’s oversight of cops, bail reform, and a host of other things that can bring this repressive system to heel.
My idea of a “new era” is one in which criminal defense lawyers can reclaim their roles, their value to the community they live in, and their personal and professional worth.
My idea of a “new era” is one in which we truly are liberty’s first, and last, champions.
Is that era at hand? No. But it is damn sure worth fighting for.
Thanks for asking me about my thoughts, and thanks for your time and attention .
Sincerely,
Jeff Blackburn
June 16, 2015
This was the “polite” version of what Jeff had to say. I’ve printed it in full, without interim commentary, so that my words or thoughts don’t impair his message.  There will be time for that later.

Thursday, June 18, 2015

One miscarriage of justice wasn't quite enough?

The following editorial was published by the Ledger-Enquirer (Columbus, GA) on June 15, 2015.

The particular case at hand happened in Texas, but this isn't really about Texas. It's about justice. (Abundant evidence to the contrary, the two are not mutually exclusive.)

As reported over the weekend, a former prosecutor named Charles Sebesta, who spent 25 years as a district attorney in a couple of mostly rural Texas counties about 100 miles from Houston, had to forfeit his law license after a State Bar of Texas review panel concluded he was guilty of professional misconduct.

Lest that sound too dully bureaucratic -- like maybe he fudged on some paperwork -- Sebesta's "misconduct" consisted of withholding evidence and using false testimony (that's called "perjury" in some legal circles) to win a capital murder conviction against a suspect named Anthony Graves for the 1992 killings of six people. A federal appeals court overturned Graves' conviction in 2006, and four years later a special prosecutor concluded he was innocent of the crime and should be freed.

All told, Anthony Graves spent a dozen years on death row, including four after a federal court overturned his original conviction.

The egregiousness of the prosecutorial misconduct in this case boggles the mind. The ultimate outcome, had not the appeals process (and a few strokes of good luck) worked in Graves' favor, should sicken every American whose conscience isn't in need of defibrillation.

The actual murderer, a man named Robert Earl Carter, testified at trial that Graves was his accomplice. Sebesta knew Carter had testified before a grand jury that he acted alone, yet the prosecutor let Carter and another witness give false testimony to win a conviction against Graves. (Carter repeatedly recanted his implication of Graves, including in the final moments before his execution in 2000.)

Had the sheer corruption of Graves' prosecution and sentencing not been uncovered, an innocent man would have been murdered -- however the law might define it, there is no other adequate practical term for it -- in the name of The People.

Any argument that justice has ultimately prevailed in this case would be feeble to the point of moral obscenity. An innocent man lost 12 years of his life, and almost his life itself. A guilty one lost his law license.

The question that hangs over this particular case is obvious: Why is Charles Sebesta himself not headed for prison? In what universe of justice is willful judicial fraud, with consequences so catastrophic, punishable by nothing worse than losing one's job?

A larger question hangs over the larger issue: Why aren't there more and better investigative, prosecutorial and judicial review processes in place for when criminal justice has gone so horribly wrong? News stories about innocent people being freed after years behind bars have become appallingly familiar. And while very few of them involve this kind of horrific prosecutorial misconduct, they still result in wrongs that can never really be righted.

Monday, June 15, 2015

Open letter to Justice Antonin Scalia on the death penalty

The following open letter, written by Leonard Pitts, Jr., was published by the Miami Herald Syndicate on June 14, 2015.

To the Honorable Antonin G. Scalia, Associate Justice of the Supreme Court of the United States:

Dear Sir:

Twenty-one years ago, your then-colleague, the late Justice Harry Blackmun, wrote what became a famous dissent to a Supreme Court decision not to review a Texas death penalty conviction. In it, Blackmun declared that he had become convinced "the death penalty experiment has failed" and said he considered capital punishment irretrievably unconstitutional.

The death penalty, he wrote, "remains fraught with arbitrariness, discrimination ... and mistake. ... From this day forward, I no longer shall tinker with the machinery of death."

You mocked him for this stance in an opinion concurring with the majority, invoking as justification for capital punishment the horrific 1983 case of an 11-year-old girl who was raped then killed by having her panties stuffed down her throat. "How enviable a quiet death by lethal injection," you wrote, "compared with that!"

A few months later, the very case you had referenced came before the court. Henry Lee McCollum, a mentally disabled man who was on death row in North Carolina after having been convicted of that rape and murder, applied to the court for a review of his case. You were part of the majority that rejected the request without comment.

The demagoguery of your response to Justice Blackmun is pretty standard for proponents of state-sanctioned death. Rather than contend with the many logical and irrefutable arguments against capital punishment, they use a brute-force appeal to emotion. Certain crimes, they say, are so awful, heinous and vile that they cry out for the ultimate sanction. For you, Sabrina Buie's rape and murder was one of those, a symbol of why we need the death penalty.

As you have doubtless heard, it now turns out McCollum was innocent of that crime. Last year, he and his also mentally disabled half-brother, Leon Brown (who had been serving a life sentence), were exonerated by DNA evidence and set free. A few days ago, McCollum was pardoned by North Carolina Gov. Pat McCrory.

The case against him was never what you'd call ironclad. No physical evidence tied him to the crime. The centerpiece of the prosecution's case was a confession McCollum, then a 19-year-old said to have the mentality of a child 10 years younger, gave with no lawyer present after five hours of questioning.

"I had never been under this much pressure," he told the News & Observer newspaper in a videotaped death-row interview, "with a person hollering at me and threatening me. ... I just made up a false story so they could let me go home."

But he didn't go home for more than 30 years. You and your colleagues had a chance to intervene in that injustice and chose not to. Not incidentally, the real culprit avoided accountability all that time.

The argument against the death penalty will never have the visceral, immediate emotionalism of the argument in favor. It does not satisfy that instinctive human need to make somebody pay - now! - when something bad has been done. Rather, it turns on quieter concerns, issues of inherent racial, class, geographic and gender bias, issues of corner-cutting cops and ineffective counsel, and issues of irrevocability, the fact that, once imposed, death cannot be undone.

Those issues were easy for you to ignore in mocking Blackmun. They are always easy to ignore, right up until the moment they are not. This is one of those moments, sir, and it raises a simple and obvious question to which one would hope you feel honor bound to respond. In 1994, you used this case as a symbol of why we need the death penalty.

What do you think it symbolizes now?

Leonard Pitts Jr. is a syndicated columnist. Readers may write to him at lpitts@miamiherald.com or the Miami Herald, 1 Herald Plaza, Miami, FL 33132.

Sunday, May 31, 2015

Texas Innocence Project Founder Quits, Accuses Colleagues Of Selling Out

The following article was posted by the San Antonio (Texas) Current by Hernán Rozemberg on Wed, May 27, 2015.

He's not about the bling.

But as he sees it, that's all his colleagues have become about.

So he's vowing to continue fighting the good fight ... on his own.

Texas defense lawyer Jeff Blackburn has parted ways with the high-profile organization he founded a decade ago, dedicated to seeking the exoneration of people believed to be wrongly sent to death row.

But Blackburn isn't stepping away from the Innocence Project of Texas because he's changing his mission. Actually, he blasted his colleagues currently leading the group of not having enough backbone to stand up to interests corrupting that mission.

The project is affiliated with the nationally known Innocence Project, headquartered in New York City. It is best known for winning the freedom of many death row prisoners for crimes they long had decried of not having committed.

But the national organization has strayed away from its core mission, lured away by big money and corporate interests, said Blackburn, who's based in Amarillo.

And that's why he had to walk away.

In his resignation letter sent to the board of directors of the Innocence Project of Texas, Blackburn said that the national outfit "went from being a small nonprofit to an organization with a multi-million dollar budget. As its size grew, so did its appetite for money and its need to control the reform movement. What was once a movement has now become a business."

Blackburn didn't accuse his Texas brethren of directly being part of that negative change, but he concluded he could no longer join hands with them due to their refusal to break off from NYC.

"They can keep their $100,000 'VIP' tables at galas, their friends from Goldman Sachs, and their need front control," he wrote in his resignation letter. "It is not for me."

Perhaps not for him, but the rest of Texas group doesn't have an issue with it.

They didn't get into details as to how they see things differently, but in their own statement, board members made it clear they're not going anywhere.

"Our board does not agree with the complaints Jeff made in his resignation letter concerning the Innocence Project," they wrote on the group's website.

"The Innocence Project of Texas will continue the important work to free the wrongfully convicted and reform the Texas criminal justice system and looks forward to continue its fruitful relationship with the Innocence Project and the Innocence Network."

Blackburn may be based in a small Texas panhandle city, but he has certainly made a name for himself much farther and wide across the region and the nation.

A lawyer for more than three decades, he has been involved for many years in trying to exonerate wrongly-convicted death row felons.

His best-known case stems from a drug bust in Tulia, Texas. During a four-year period in the early 2000s, Blackburn obtained full pardons and civil damages for 38 people involved in the case.

The State Bar of Texas named him "Criminal Defense Lawyer of the Year" in 2003. He also teaches law at Texas Tech University.


Sunday, May 10, 2015

The FBI’s flawed justice

By Washington Post Editorial Board May 8

THE STUNNING admission by federal law enforcement officials of flawed testimony by forensic experts in hundreds of criminal cases has focused attention on the dubious use of hair analysis. Add this to a list of factors that has played a role in securing the conviction of people who later proved their innocence, including mistaken eyewitness identifications, bad informants and police or prosecutorial misconduct. Forensic technologies must be reassessed, but other parts of the system also need scrutiny if the chances of wrongful convictions are to be reduced.

The Justice Department and FBI, as The Post’s Spencer S. Hsu reported, have acknowledged widespread instances of scientifically indefensible testimony involving microscopic hair comparison by members of an elite FBI forensic unit. A review of cases over two decades before 2000 concluded that nearly every examiner — 26 of 28 — gave flawed testimony in ways that favored the prosecution. Of the cases, 32 defendants were sentenced to death. Fourteen of those have been executed or have died in prison.

The FBI errors do not necessarily mean defendants were innocent. But the confirmation of long-held suspicions about hair analysis, the inability of courts to keep junk science out of courtrooms (and hair analysis is not the only suspect technique) and the questionable reliability of other evidence provide reason to worry about how many innocent people are being convicted.

Consider, for example, the three defendants from the Washington area — Kirk L. Odom, Santae A. Tribble and Donald E. Gates — whose exonerations in separate cases were pivotal in prompting the hair analysis review. Examiners had testified in each case that hair found at the crime scenes matched that of the suspects, analysis later undermined by DNA results that exonerated the three men.

In each case, improper forensics combined with other failings to produce wrongful convictions. Mr. Odom, who spent 22½ years in prison for a rape he didn’t commit, was mistakenly identified by the victim after a questionable police lineup. For the other two, testimony from police informants with something to gain was a factor. Mr. Tribble spent 27 years and 10 months in prison for a murder he didn’t commit. Mr. Gates spent 28 years for a rape and murder he didn’t commit. In other cases, confessions came from susceptible people, or information that would have been helpful to the defense was withheld by the government.

With the exception of the rare bad apple, police and prosecutors don’t set out to convict the wrong person, but even the most well-meaning people can be affected by contextual or cognitive bias, particularly in a system with crushing caseloads and intense pressure. Better protections are needed. Steps in the right direction are improvements by D.C. police in procedures for eyewitness identification and the creation of a conviction integrity unit by the U.S. Attorney’s Office in the District.

But more needs to be done, including, as we’ve argued before, requiring the prosecution to share information with the defense more thoroughly and consistently. We hope the Justice Department undertakes an analysis not only of the breakdown in hair forensics but also of other vulnerabilities in the system.


Saturday, April 04, 2015

Barry Beach: Investigations point to innocence

The following letter to the editor by Al Smith of Great Falls, Montana was published on April 1, 2015 by the Missoulian.

Lately I've been wondering why our justice system continues to deny mistakes were made 30 years ago during the prosecution of Barry Beach. Then, in disregard to testimony and evidence to the contrary, Montana has continued to defend those mistakes.

This nearly untenable position was recently compromised further by independent investigations. Two investigators, including John Cameron, a now-retired Great Falls Police detective who was instrumental in solving several “cold case” murders, looked at the Beach case. In his investigative report, Cameron concluded Beach is innocent.

Interestingly, two attorneys, Brant Light and Tammy Plubell, who both serve on the staff of Attorney General Tim Fox, know John Cameron and are familiar with his work. Yet the Office of the Attorney General turned a deaf ear to Cameron’s investigation. Cameron’s report is also now in the public domain; still Montana authorities have not acknowledged, let alone commented on the validity of his findings. I find it peculiar.

So are the Montana officials responsible for the continued incarceration of Beach treading on slippery ground?

It’s long been my contention the prosecutor of the Beach case, Marc Racicot and the then-Attorney General, Mike McGrath, plus those who followed them, steadfastly deny what they know to be the truth about the case. Is it done to protect the sterling reputations of those who are to blame for a terrible and costly miscarriage of justice? Just asking!

Additionally, our Montana Attorney General is aware misconduct occurred during and after the prosecution of the Beach case. A list of Articles of Misconduct were delivered with the signatures of over 200 Montanans requesting an investigation. As is typical, no action is pending.

We need a Montana Conviction Integrity Unit to insure a similar injustice is never again allowed to stand in Montana.

Friday, April 03, 2015

Alabama tried to kill a man who never should have been on death row

The following opinion by Kyle Whitmire was published on April 3, 2015 by AL.com.

If you want to understand why we should abolish the death penalty, consider the case of Anthony Ray Hinton.

If you don't want to understand, consider it anyway.

Authorities arrested Hinton in 1985, after a string of robberies at restaurants in Birmingham. In the first two robberies, the managers were killed and there were no witnesses or physical evidence to identify a suspect. After a third similar robbery at a Quincy's in Bessemer, the manager survived the shooting and later picked Hinton from a photo lineup.

Here's the thing, at the time of the robbery, Hinton had an air-tight alibi. He had been working in a warehouse 15 miles away. The warehouse was even locked, so Hinton couldn't have slipped out on his shift while no one was looking.

Prosecutors never charged Hinton with the Quincy's robbery, but they still used the manager there as a witness against Hinton in the other murders.

The proof they had to tie them all together - the supposed murder weapon, a Smith and Wesson .38 that had belonged to Hinton's mother.

A ballistics "expert" for the prosecution testified that the bullets from all three robberies matched that weapon. I put "expert" in quotation marks because of what we know now after analysis by multiple other experts - that the bullets from those three robberies couldn't be matched to each other, much less to Hinton's mother's gun.

Hinton didn't have the money for a qualified ballistics expert during his trial.

I'm going to take a moment now to rant before we get to the horrifying parts. All my life in Alabama, I've heard the arguments, not just in favor of the death penalty, but arguments that the death penalty we have isn't good enough.
  • That the appeals take too long, and we should set a time limit of (insert your number here: 10 years, five years, a week, string 'em up behind the courthouse that day).
  • That victims' families shouldn't have to go through all this.
  • That we might have made mistakes in the past, but most of those exonerations have come because of advances in DNA evidence. Our science has improved our accuracy and cured the process of its problems.

That last one deserves particular attention, because it has given many of us a false sense of security. People are involved in this process, and because of that, the system will always be messy, imperfect, and sometimes downright malicious.

To see why, you have to consider what happened next to Hinton.

Hinton has been on death row for almost 30 years. During much of that time, appellate attorneys have fought to have the ballistics on the supposed murder weapon retested. The Equal Justice Initiative has been fighting for those tests since they took up the case in 1998.

Thankfully, the United States Supreme Court ruled in favor of the defendant last year, and last month, three experts from the Alabama Department of Forensic Sciences tested the gun and reexamined the evidence. They found the bullets from the three robberies didn't match each other, much less the supposed murder weapon.

Let's be clear here. For decades, Alabama prosecutors have fought like hell to prevent a second look at that evidence, and by doing so, they fought against justice, not for it.
Just so we know who's responsible, let's name a few of them.
  • Former Jefferson County District Attorney David Barber.
  • Former Alabama Attorney General Troy King.
  • Current Alabama Attorney General Luther Strange.
None of these men should be able to sleep tonight.

And neither should we the voters who put them in office.

Had they been successful, the State of Alabama likely would have put an innocent man to death. Had they been successful, they would have been more guilty of murder as the man who went free on Good Friday.

"I shouldn't have sat on death row 30 years," Hinton said after his release Friday. "All they had to do was test the gun. But when you think you are high and mighty and you're above the law, you don't have to answer to nobody. But I've got news for you. Everybody who played a part in sending me to death row you will answer to God."

Don't think for a second that just because Hinton is free today, that the system worked. Hinton lost 30 years of his life. Justice will never be served.

We shouldn't abolish the death penalty because it's inhumane. There are people in the world who deserve to die - folks who have done unspeakable things.

Rather, we should abolish the death penalty because government can't be trusted to tell the difference between the folks who have it coming and those who don't.