Monday, November 17, 2014

Lawyer lied during Kirstin Lobato’s Nevada Supreme Court arguments

by Special to the Las Vegas Tribune November 13, 2014

A minimum-wage convenience store clerk who lies under oath in court can be convicted of perjury and sentenced to prison. In contrast, a highly paid lawyer can fearlessly lie his or her head off when publicly appearing before the Nevada Supreme Court.

We know that because of what occurred during oral arguments before the full Nevada Supreme Court on September 9, 2014 concerning Kirstin Blaise Lobato’s habeas corpus appeal. The attorney representing the
State of Nevada — Clark County Assistant District Attorney Steven S. Owens — repeatedly lied about issues related to Ms. Lobato’s case.

The Supreme Court’s response has been deafening silence. Owens’ dishonest assertions include:

1) Owens lied twice that Ms. Lobato made a “confession” related to Duran Bailey’s homicide in Las Vegas on July 8, 2001. (Oral Arguments [OA] at 9, 13. See note at end.) The truth is that during Ms. Lobato’s trial the State didn’t assert in its opening statement, closing argument, or present trial testimony she made a “confession” to Bailey’s homicide. It exists only in Owens’ imagination.

2) Owens lied, “She was convicted by her own words at the trial, and her own words belie the argument that she is actually innocent.” (OA at 7-8.) The truth is there is nothing incriminating regarding Bailey’s homicide in her police Statement or comments attributed to her — none of which even include the date, location, or manner of Bailey’s death from a head injury. Furthermore, Ms. Lobato’s habeas petition details her conviction was due to Metro Det. Thomas Thowsen’s extensive false testimony regarding her Statement and comments, and his alleged investigations; and more than 275 unrebutted instances of prejudicial prosecutor misconduct during her trial — none of which were objected to by her lawyer.

3) Owens lied, “Shortly thereafter [Bailey’s homicide], Kirstin Lobato in Panaca, Nevada, started talking about a severed penis.” (OA at 7)
The truth is Ms. Lobato mentioned in her Statement that prior to June 20, 2001 she had a conversation with a woman about the Las Vegas rape attempt she fended off with her pocket knife. Also, her habeas
petition includes unrebutted new evidence by nine alibi witnesses who were informed by her beginning in May 2001 that she used her pocket knife to fend off a would-be rapist in Las Vegas.

4) Owens lied that Ms. Lobato’s vague comment referring to a conversation with her father is evidence of a guilty mind to Bailey’s homicide. (OA at 8) The truth is her comment refers to a conversation with her father in June 2001 — weeks prior to Bailey’s homicide.

5) Owens lied, “But nothing at the crime scene is going to help them because the jury already knew that evidence there pointed away from Kirstin.” (OA at 13) The truth is Ms. Lobato’s unrebutted new exculpatory crime scene evidence establishes among other things that Bailey’s killer made all the shoeprints imprinted in blood and they don’t match Ms. Lobato; Bailey’s cutting and stab wounds were not inflicted by her pocket knife; and Bailey was alive when his rectum injury occurred, proving she was convicted of a non-existent violation of NRS 201.450. Furthermore, two jurors determined after reviewing all the new evidence that “it could have possibly resulted in either a hung jury or Ms. Lobato’s acquittal.”

6) Owens lied Bailey’s time of death isn’t “critical.” (OA at 10) The truth is the State’s theory of Ms. Lobato’s guilt depended on convincing the jury Bailey died before 7 a.m.

7) Owens lied the jury “rejected” Ms. Lobato’s alibi evidence she was in Panaca the evening of July 8. (OA at 10) The truth is the State conceded during its closing argument it is factually true she was in Panaca from at least “11:30 a.m. through the night.”
8) Owens lied in his assertions Ms. Lobato’s unrebutted new expert forensic evidence Bailey died after 8 p.m. isn’t important. (OA at 10)  The truth is the State conceded at trial she was in Panaca 165 miles from Las Vegas at that time, so it is impossible she committed his homicide.

9) Owens lied, “We have here a couple statutory remedies that Ms. Lobato could avail herself of. … and the other is a motion for DNA testing…” (OA at 12) The truth is Ms. Lobato’s petition for post-conviction DNA testing of crime scene evidence — including semen recovered from Bailey’s rectum — was vigorously opposed by the Clark County D.A. and denied by Judge Valorie Vega. The Nevada Supreme Court dismissed her appeal, “Because the order is not appealable.”

The foregoing is only a partial litany of Owens’ gross dishonesty throughout his argument. It was a continuation of Owens’ dishonesty related to Ms. Lobato’s case. His false public statements to KLAS-TV (Las Vegas), the Associated Press, and the Las Vegas Review-Journal, and in documents filed in the Nevada Supreme Court, are detailed in a letter sent to Clark County District Attorney Steven Wolfson dated July 3, 2012. That letter states: “Mr. Owens’ pervasive dishonesty is a gravely serious matter.” (p. 11) (The letter is online at, http://justicedenied.org/kl/wolfsonletter.pdf.) Wolfson’s inaction is evidence he expects less honesty from his deputies than responsible parents expect from their four-year-old child.

The Supreme Court has the authority to hold Owens in contempt of court for his dishonest and deceptive conduct and impose sanctions, and to refer him to the State Bar of Nevada for investigation. Owens’ unrestrained dishonesty that denied Ms. Lobato her right to a fair hearing is “good cause” for the Court to exercise its authority to sua sponte strike his arguments from consideration of her appeal.
The Nevada Supreme Court should hold Steven S. Owens accountable for his contemptible conduct and take the most extreme actions possible to protect Ms. Lobato’s rights, and the integrity of the Court and its deliberation process.
* * *
Hans Sherrer is President of the Justice Institute based in Seattle, Washington, that promotes awareness of wrongful conviction and conducted a post-conviction investigation of Ms. Lobato’s case. Its website is, www.justicedenied.org.

Friday, November 14, 2014

I Feared I’d Die in Prison for Maintaining My Innocence

The following article by Fernando Bermudez was published by the New York Times on November 13, 2014.

Fernando Bermudez spent 18 years prison after being convicted of murder in 1991, before being found innocent. Married with three children, he earned a bachelor's degree in behavioral science and is considering going to law school. As a speaker, he has given more than 250 talks in the United States and overseas.

Imagine yourself happy, on the verge of a career, promotion or meaningful relationship, then suddenly trapped in prison, fighting for freedom and your sanity over a crime you did not commit.
In 1991 I never imagined this would happen to me when I was arrested, convicted and incarcerated for murder. My wrongful conviction stole over 18 years of happiness for my family and I until Justice John Cataldo of State Supreme Court in Manhattan dismissed the charges and declared me actually innocent in 2009. He ruled that the police and prosecutors had used perjured testimony and illegal identification.

I wrestled with many fears during my incarceration, surrounded by violence. But my greatest fear was that I could die in prison maintaining my innocence. Year after year, I witnessed the parole board deny release to inmates who maintained their innocence, like one friend who died in prison after being denied parole every two years. Others used drugs to numb the painful reality of being trapped while innocent.

If I had stayed in prison, I would have been eligible for an appearance before the board this year. How would I have passed through the eye of that legal needle? I often thought. Exonerating evidence had long been accumulating since 1992. As an innocent man I would have poured my heart out to them with the truth that I was willing to die for. Daily, I was mentally and physically tortured with thoughts that a parole board would consider me in denial and reject my freedom.

Luckily , after years of fighting, with the help of pro bono lawyers, I won my case, which prosecutors never appealed. But the horrible, looming dilemma I faced still pains me.

Thursday, October 23, 2014

Martha Coakley, stop lauding bad science

The following opinion by Lee Scheier was published in the Boston Globe on October 16, 2014.

AFTER COMING under attack in an political ad for not doing enough to protect children, Martha Coakley, the Democratic candidate for governor, defended her record. In a large above-the-fold photograph published in the Globe Oct. 3, Coakley is seen standing next to Deborah Eappen, mother of Matthew Eappen, the baby whom Louise Woodward was charged with shaking to death in 1997.

Coakley, the prosecutor in that infamous trial, set up the photo op ostensibly to remind the public of her commitment to protecting children. If so, Coakley must think Massachusetts voters have short memories.

Although Woodward was found guilty of second degree murder by the jury, trial judge Hiller Zobel reduced the sentence to manslaughter and set Woodward free. Zobel’s skepticism of the justice of Woodward’s murder conviction was prescient: Dr. Patrick Barnes, Coakley’s chief expert witness in the case, later publicly renounced his own trial testimony as based on flawed scientific assumptions.

Coakley’s odd invocation of this case demands that we look at the facts. What cannot be lost in all of this political maneuvering is the truth about the Woodward case and all the thousands of shaken-baby cases before and since Woodward. The truth is that Martha Coakley’s deft misuse of science actually came very close to sending an innocent caretaker to prison for life.

At the heart of the Woodward prosecution — and many others like it — is the pseudoscience of the shaken-baby syndrome diagnosis. Anecdotal studies by pediatric neurosurgeon Norman Guthkelch in 1971 and radiologist John Caffey in 1972 and 1974 asserted that the presence of the so-called “triad” — subdural and retinal bleeding plus brain swelling — in an infant constituted certain proof that the last caretaker to hold a baby had “shaken” that child to death. Under Guthkelch and Caffey’s theory, this could be the only cause of death. Because of these studies — and because nearly all shaking cases have no eyewitness — the presence of the triad was the only evidence necessary to prove murder.

In recent years, however, experts have become increasingly skeptical. “The problem lies with Caffey’s level of certainty that subdural bleeding along with bleeding in the eyes could only be caused by shaking,” says Louis Fogg, a professor at Rush University and the former president of the Chicago chapter of the American Statistical Association.

Fogg, who received his doctorate from the University of Chicago in scientific methodology, is an expert in designing and evaluating scientific research. He has concluded: “[Caffey] is manufacturing a degree of certainty that doesn’t exist from his research. A reasonable person can’t look at this research and say it is proof of guilt beyond a reasonable doubt. There are a lot of doubts here. This is not the kind of stuff you can send people to jail for.”

Martha Coakley’s deft misuse of science in the shaken-baby trial actually came very close to sending an innocent caretaker to prison for life.

Fogg goes on to note that all of the many published studies that purport to confirm the validity of shaken baby syndrome are false. “Every study accepts nonscientific evidence as if it is scientific,” he explains.

Doubts about shaken baby syndrome have grown considerably since it has been established that many diseases, medical conditions, short accidental falls, or re-bleeds also manifest the identical “triad” of clinical signs. Indeed, it likely was an injury from a short accidental fall weeks before Matthew Eappen died, which re-bled later — not any supposed shaking by Louise Woodward — that caused his death.

Barnes, the expert Coakley relied on to convict Woodward, is one of the physicians who has questioned the legitimacy of the diagnosis. When asked on PBS’s Frontline in 2011, “If you were called to testify in the Woodward case today what would you say?” Barnes responded, “I would say that you cannot select out, accuse, indict, or convict any particular caretaker based on the medical evidence that we have.”

Perhaps most tellingly, Dr. Gulthkelch himself — one of the scientists who first posited the theory — has since voiced concerns about its application in the criminal justice system.

Nonetheless, in the face of rigorous scientific evidence to the contrary, many in the medical community still claim that shaken baby syndrome is a valid diagnosis because so many within the medical community support it. But science is not a popularity contest. After all, Galileo was the only scientist of his day who believed that the earth revolved around the sun.

And this consensus does nothing to alter the fact that, to this day, there has never been an experiment that proves a causal link between shaking a baby and death. “An association alone between shaking and the triad contains so much inherent doubt that no jury in good conscience should convict on that evidence alone,” says Fogg. “You need strong experimental evidence of causation if you’re going to send someone to prison.”

This lack of strong experimental evidence of causation did not stop Coakley from trying to send Woodward to prison for life. And despite the growing chorus of scientists casting doubt on shaken baby syndrome, such prosecutions continue: In Middlesex County, nanny Aisling Brady McCarthy currently stands accused of shaking 1-year old Rehma Sabir to death. Prosecutors should hang their heads in shame for blindly accepting bad science and bringing these cases to court.

Indeed, Coakley nearly sending a young, innocent woman to prison is nothing to be proud of. It is certainly not worthy of a photo shoot in a political election.

Lee Scheier is an investigative journalist who has written extensively for the Chicago Tribune and many other publications. He has spent the last eight years researching a book on shaken-baby syndrome.

Sunday, October 19, 2014

Yet another exoneration demonstrates the desperate need for reform

The following commentary by Rob Schofield was published by the Progressive Pulse on Octobe 17, 2014.

You know something’s dreadfully wrong with your system of criminal justice when the full exoneration of innocent men convicted of heinous crimes keeps happening over and over. Another one occurred in North Carolina today when Willie Womble — a man who has spent 39 of his 60 years on the planet incarcerated for a crime he did not commit — was cleared of a crime that occurred in 1975.

Good lord! How do the still-living people who had a role in such a miscarriage of justice sleep at night?

Obviously, there’s no getting Mr. Womble back his life that the people of North Carolina and their officers and employees wrongfully and tragically stole, but here are a few things that Gov. McCrory ought to consider doing immediately:

1) Ordering the immediate commutation of all death sentences in the state to life in prison,

2) Taking whatever steps are necessary to provide for a dramatic increase in the budget and staffing of the Innocence Inquiry Commission (and maybe the private nonprofit known as the NC Center on Actual Innocence as well) along with the directive that it (they) undertake a review of a vastly larger number of the state’s existing murder convictions — if not all of them, and

3) Announcing that he will no longer approve of any new death sentences in the state until — at a minimum — a complete and full review of every such case has occurred.


Thursday, September 18, 2014

NC Innocence Inquiry Commission a lifesaver for innocent, death row inmates



The following opinion by Lyle C. May was published on September 17, 2014 by the Charlotte News & Observer.

On Sept. 2, 2014, after spending 30 years on death row, a travesty of justice was averted when Henry Lee McCollum was acquitted of the 1983 rape and murder of Sabrina Buie. Henry’s brother, Leon Brown, was also acquitted of the rape and released. Had it not been for Brown’s 2009 application to the North Carolina Innocence Inquiry Commission, McCollum would still be on death row.

In fact, had it not been for the connection between the two brothers in the Buie case, the commission would not have reviewed Henry’s part. For some inane reason the commission cannot investigate death penalty cases until a prisoner’s appeals have been exhausted, and the defendant files a claim. The problem with this is when a death row prisoner exhausts his or her appeals, they are executed. How incredibly fortunate for Henry there has been a de facto moratorium on the death penalty in North Carolina since 2007.

This was too close. As it stands, Henry and Leon had their youth stolen from them by overzealous, blind SBI agents, impressionable jurors, ineffective attorneys and a prosecutor who brags about his oratory power to persuade people rather than relying upon the facts or evidence in a case. How many more cases on death row are just like Henry McCollum’s? This is not an aberration, his is the eighth acquittal on North Carolina’s death row.

The difference between the previous seven acquittals and Henry is that an objective commission had a hand in clearing Henry and Leon of any wrongdoing. The first seven had to rely on their appellate attorneys and the minimal resources available to them. One wonders why Henry’s attorneys, after three decades, were incapable of freeing him; or why, with a little bit of digging, exculpatory DNA evidence was so easily found by the commission. These questions may seem complex, but they underline a common problem with many appellate attorneys who represent death row prisoners: The bare minimum is the status quo.

In Henry’s case, the bare minimum in 1991 put him back on death row after a new trial. His attorney tried to coerce Henry to confess to a crime he did not commit. This is inexcusable. With so many people against indigent, intellectually challenged defendants like Henry McCollum, it’s a miracle this man made it home alive. All glory to God indeed, Henry.

Christine Mumma, executive director of the N.C. Center for Actual Innocence, mentioned some lessons learned from the exoneration of Henry McCollum. What the public needs to be aware of is that the horrible circumstances of injustice in the Buie case are a culture in North Carolina death penalty cases, not some isolated event. Maybe, if the Innocence Commission were to work in conjunction with appellate attorneys to defend their clients, 31-year prison terms by innocent men can be avoided. At the very least the commission can demonstrate what it means to be true representatives of justice.

Lyle C. May is a death row inmate at Central Prison in Raleigh. He received two death sentences for the 1997 double murder in Asheville of Valerie Sue Riddle and her son, Kelly Mark Laird Jr.

Darryl Burton: Two recent exonerations cause new concern about the death penalty

The following opinion by Darryl Burton was published on September 16, 2014 by the Kansas City Star.

I was relieved that Henry McCollum and Leon Brown, after waiting over 30 years, finally proved their innocence with the help of DNA evidence and were released from prison in North Carolina.

As someone who personally knows the horror of being wrongfully convicted, it’s hard to celebrate this news. Thankfully these men are free, but they are burdened with the emotional pain of suffering in prison, fearing a possible execution, being vilified by the media, and not knowing for all those years whether the truth would ever come out.

These exonerations mark the 145th and 146th time that an individual has been wrongfully sentenced to death and later found innocent in the U.S. since 1973. So many wrongful convictions have come to light in recent years, in death penalty and non-death penalty cases, that there’s a tendency to grow numb to these injustices.

Since my exoneration in 2008 of a murder I didn’t commit, there have been over a dozen exonerations just in Kansas and Missouri, including that of Reginald Griffin, who was wrongfully sentenced to death and spent 30 years in prison before his release.

We can’t allow ourselves to grow numb to these injustices. The appalling facts in McCollum’s and Brown’s cases cry out for action, and remind us of the urgent need to end the death penalty.

In 1983, McCollum and Brown became the prime suspects in the horrific rape and murder of an 11-year-old girl. The deck was stacked against them from the start. They were young, black, mentally disabled, and also outsiders, having recently moved to North Carolina from New Jersey. Officials focused their investigation on McCollum and Brown after a teenager suggested them as suspects. Scared after hours of interrogation by the police, the two men confessed to the crime just to make the interrogation stop.

They tried to recant at the trial, but that was a losing proposition. They had confessed — case closed. Both were sentenced to death and, because the crime was so horrible, most were certain that justice was done. The Supreme Court refused to review the case, and Justice Antonin Scalia — without a shred of doubt — singled out McCollum as the prime example of someone deserving the death penalty. As late as 2010, McCollum’s mug shot appeared on campaign mailers attacking anyone who might be “soft on crime.”

At all levels of government, everyone was certain that these men were monsters deserving to die. But they were all wrong. New DNA evidence pointed to another individual with a record of sexual assaults. Finally the world knows what McCollum and Brown knew all along — they are innocent.

If this case teaches us anything, it teaches the importance of humility in our criminal justice system. In the aftermath of grave crimes, like those that have recently rocked the Kansas City area, there is understandable anger and a desire for the death penalty. But executions have no place in an imperfect system that sometimes convicts the innocent.

In Kansas and Missouri, it is at our own peril if we fail to act in light of injustices like those suffered by Henry McCollum and Leon Brown. Both states need to end the death penalty — and soon.

Darryl Burton was wrongfully convicted of murder in Missouri on the basis of perjured testimony and spent 24 years in prison before being exonerated and released. He currently is pursuing his Master of Divinity at St. Paul School of Theology and serves as a pastor intern at United Methodist Church of the Resurrection in Leawood. To learn more about him, go to Dabex.org.

Tuesday, September 16, 2014

Exonerating the innocent: Ohio’s attorney general must start tracking, and learning from, DNA exonerations

The following editorial was published by the Toledo Blade on September 14, 2014.

Ohio Attorney General Mike DeWine started calling for old DNA evidence in late 2011, encouraging Ohio’s 800 law enforcement agencies to clear their testable sexual assault evidence shelves.

It was a prudent and long overdue move. Over the past two decades, DNA technology has become an invaluable tool for law enforcement. It was shameful that so many vital rape kits were gathering dust in police property and storage rooms.

Since then, the Bureau of Criminal Investigation has tested more than 4,700 previously untested rape kits — many 10 to 20 years old. Of those, more than 3,100 have been tested since Oct. 1.

Mr. DeWine has touted the fact — and rightfully so — that, thanks to his initiative and follow-up work by local law enforcement, more than 200 people have been charged for sexual assaults they allegedly committed years ago. Arresting people who otherwise would not have been caught for horrific crimes is something the attorney general’s office ought to be proud of.

But DNA evidence doesn’t just catch the guilty. It also exonerates the innocent. This month, for example, North Carolina’s longest-serving death row inmate, Henry McCollum, and his younger half brother walked out as free men, three decades after they were convicted of raping and murdering an 11-year-old girl.

A judge overturned the convictions after another man’s DNA, found on a cigarette butt left near the body of the slain girl, contradicted the case put forth by prosecutors. No physical evidence ever connected the convicted men to the crime, but police had coerced confessions from the two when they were scared teenagers.

Mr. McCollum likely would have been put to death years ago, if not for lawsuits that have blocked executions in North Carolina since 2006.

Such horrific miscarriages of justice occur more often than most people realize. When they are righted, they are another cause to celebrate the technology that made it possible. They are also an occasion to learn what went wrong in the case and correct flawed policies and procedures.

Unlike new evidence that results in convictions and arrests, however, the attorney general’s office does not track cases in which DNA evidence exonerated suspects or freed prisoners.

The Ohio Innocence Project has helped free 17 people, largely with DNA evidence. This year in Ohio, for example, Dewey Jones was exonerated after DNA evidence proved his innocence. A Summit County judge dismissed aggravated murder and robbery charges against Mr. Jones, who spent 20 years in prison.

Such DNA exonerations are as important as those cases that result in arrests and convictions. In fact, they are more important, given the underlying principles that gird the U.S. criminal justice system. They include the presumption of innocence until judged guilty beyond a reasonable doubt. Those principles are based on the idea that convicting the innocent is an even greater travesty than absolving the guilty.

Even so, despite those precious safeguards, inept indigent defense systems, faulty eyewitness identifications, false coerced confessions, and numerous other flaws continue to put innocent people in prison, sometimes for life.

When righted by DNA evidence, such cases can provide the attorney general’s office, and law enforcement agencies across the state, with textbook examples of what can go wrong during a suspect’s arrest, trial, and conviction. Likewise, they can suggest ways to improve the system. That’s why it’s imperative that the Ohio Attorney General’s office start to track and study DNA exonerations.

Law enforcement agencies are often notoriously reluctant to acknowledge mistakes, partly because they believe they undermine public confidence in the system. But such mistakes are too important to ignore, and learning from them would only increase the people’s faith in the criminal justice system.

Police and prosecutors must acknowledge and use the enormous benefits of DNA technology, either way they tip the scales of justice.

Saturday, September 13, 2014

Lawrence Hellman: How many innocent people are in Oklahoma prisons?

The following editorial by Lawrence Hellman was published by NewsOK.com on September 13, 2014.

Oklahoma’s prison population is about 26,000. Some of the inmates are innocent of the crimes for which they were convicted.

How do we know?

Throughout America, innocent people are being exonerated at an alarming rate on the basis of new evidence of innocence. A record 91 exonerations occurred in 2013. Since 1989, there have been more than 1,400 exonerations in America, including 27 in Oklahoma.

So we know that Oklahoma’s criminal justice system has made some mistakes. Not a lot of mistakes, but some serious ones. It is sobering to learn that eight of Oklahoma’s exonerees were on death row at the time of their release from prison.

It’s simply unrealistic to believe that all of the mistakes have been discovered. For one thing, many years can go by before the mistakes come to light. The average time between conviction and exoneration for the 27 Oklahoma cases that we know about is more than nine years. In addition, until recently, there was no organization in our state dedicated to reviewing inmates’ claims of innocence. Now there is.

The Oklahoma Innocence Project at Oklahoma City University School of Law began operations in 2011. Since opening, the project has received more than 1,000 requests for assistance. Of course, not all of these claims of innocence are valid or capable of being established. With its small staff — supported entirely from private donations — it will take years to review the cases. Hundreds of inquiries still await an initial review.

So far, a few dozen cases have been identified that warrant further investigation. Legal actions seeking judicial relief have begun for two clients whose claims have merit. Pursuing these cases will be a slow and deliberate process — as it should be. More cases will be filed as resources allow.

How many innocent people are there in Oklahoma’s prisons? The courts will answer this question over the coming months and years.

Hellman is executive director of the Oklahoma Innocence Project. The project’s benefit, “A Night for the Innocent,” is Sept. 26 at Will Rogers Theater. For information, go to http://innocence.okcu.edu/ or call (405) 208-7101.