Sunday, August 21, 2016

Journal Times editorial: State should let Brendan Dassey, Steven Avery's nephew, go free

The following editorial was published by the Journal Times (Racine, Wisconsin) on August 21, 2016.

The seemingly never-ending case of the murder of Teresa Halbach took another strange turn this month, when a federal magistrate in Milwaukee overturned the murder conviction of Brendan Dassey, the nephew of Steven Avery who also was convicted in the crime.

Halbach, a 25-year-old photographer, was raped and brutally murdered on Halloween 2005 near Avery’s Manitowoc County family salvage yard, where she had gone to take photos for a car sale magazine. Her bones were later found in a burn pit near Avery’s trailer.

U.S. Magistrate Judge William Duffin concluded that Dassey’s constitutional rights had been violated and was highly critical of the actions of investigators, Dassey’s attorney and state courts in securing a pressured confession from the then-16-year-old who suffers from learning disabilities.

He gave prosecutors 90 days to decide whether to retry Dassey, who has been in prison now for almost a decade, to appeal his decision or to set him free.

Duffin wrote in his 91-page decision that the prosecutor’s investigators made false promises to Dassey during multiple interrogations.

“These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits and the absence of a supportive adult, rendered Dassey’s confession (which was later recanted) involuntary under the Fifth and Fourteenth Amendments,” Duffin wrote.

He added that “based on its review of the record, the court acknowledges significant doubts as to the reliability of Dassey’s confession. Crucial details evolved through repeated leading and suggestive questioning and generally stopped changing only after the investigators, in some manner, indicated to Dassey that he finally gave the answer they were looking for.”

Indeed, transcripts of the interrogations — conducted without a parent or legal counsel present — show exactly that, with the investigators telling him repeatedly that they are on his side and that they knew all the details of the murder, but just needed Dassey to tell them.

Dassey’s accounts varied widely, with investigators prompting him until they got answers that squared with their narrative. In one sequence, Dassey tells them Halbach was never in the garage on the property, then moments later says she was shot in her car inside the garage — and then says she was on the floor of the garage when she was shot.

One investigator affirmed that narrative and tells him: “That makes sense. Now we believe you.”

Through it all, Dassey clearly buys into the veiled promises of his interrogators that if he is honest, he will be set free. He is so apparently clueless as to the import of his confession that, at the end, he asks his interrogators: “Am I going to be (back) at school before school ends?”

Told, instead that he is being arrested, he asks: “Is it only for the one day, or ...”

What is remarkable about Dassey’s case is that state courts did not countenance appeals on his behalf. A coerced or guided confession from a young, mentally challenged boy is not something we expect from our criminal justice system. Yet the Wisconsin State Supreme Court declined to take it up.

So where does the state go from here? The most likely scenario is that the state will appeal Duffin’s decision, because prosecutors never like to give up a conviction. It is highly unlikely they will go back to court to retry Dassey, because they would have to do so without his recanted confession. There is little or no physical evidence connecting him to Halbach’s murder.

The other option is to set Dassey free — and the state should give that choice serious consideration.

Avery will still be behind bars and – barring some new exculpatory evidence, which his appeals lawyer has promised and may come in an appeals filing this month – he will stay there. Dassey never testified at his uncle’s trial and his release would not affect Avery’s case.

We would like to see this sordid, heinous piece of Wisconsin history put in the past, but that seems unlikely any time soon.


Saturday, August 20, 2016

Rare Chance for Mercy on Texas’ Death Row

The following editorial was published by the New York Times on August 18, 2016.

When it comes to capital punishment, there is not much official mercy to be found in the state of Texas.

As 537 death row inmates were executed there over the last 40 years, only two inmates were granted clemency. The last commutation to life in prison occurred nine years ago, when Gov. Rick Perry, despite his formidable tally of 319 executions, chose to make an exception and spare a man convicted of murder under the state’s arcane and patently unfair “Law of Parties.”

This law in effect holds that someone waiting outside at the wheel of a getaway car deserves the same capital punishment as his associate inside who shoots and kills a store clerk. This is the rough equation that now finds Jeffrey Wood on death row in Texas, 20 years after his involvement in just such a crime. The actual killer was executed in 2002; Mr. Wood faces execution next Wednesday as a somehow equally culpable party, unless the state commutes his sentence to life in prison.

The Law of Parties has been on trial as much as Mr. Wood has in the arduous criminal justice process in which he faces death. With an I.Q. of 80 and no criminal history, Mr. Wood, who was 22 then, was initially found by a jury to be incompetent to stand trial. But the state persisted, and he was convicted in a slipshod proceeding in which no mitigating evidence or cross-examination was attempted in his behalf during the crucial sentencing hearing.

Mr. Wood bizarrely demanded to represent himself, but was ruled incompetent as a counsel — yet not as a defendant. He maintained he was forced at gunpoint into being a robbery accomplice. As the case ground forward, a federal judge stayed the last scheduled execution date in 2008 because of Mr. Wood’s repeatedly eccentric behavior.

The theory underpinning the Law of Parties — that an accomplice deserves to die even though he did not kill the victim — has been abandoned as difficult to apply if not unjust in most state jurisdictions in recent decades. It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty. Since the death penalty was restored in 1976, there have been only 10 executions in six states under accomplice culpability laws, in which defendants did not directly kill the victim, according to Texas Monthly. Five of them have been in Texas. Jared Tyler, Mr. Wood’s lawyer, who specializes in the state’s death row cases, says he has never seen a sentence of execution “in which there was no defense at all on the question of death worthiness.”

This is just one of many grounds for the clemency that four dozen evangelical leaders have recommended to avoid a gross injustice. The state parole board would have to make this recommendation, with the final decision by Gov. Greg Abbott, who has not granted clemency in 19 executions.

The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is. The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared.


Wednesday, August 17, 2016

An Innocent Prisoner’s Will To Be Free

The following post by Lorenzo Johnson was published by the Huffington Post on August 15, 2016.

At the age of 22, I was caught up in the wave of mass incarceration and wrongfully convicted of murder. This took place in a state I wasn’t from or and where I had no family.

I had dropped out of school at an early age, so when I entered the Pennsylvania Department of Corrections, my reading and writing level were so low that I was to attend Adult Basic Education classes.

I remember my first time going to the prison law library. I informed the clerk who was assisting prisoners that I was innocent and needed help. He gave me a look like he had heard my story a hundred times before, and then he gave me a book entitled Pennsylvania Criminal Rules and Procedures. This book was at least 500 pages. I took this book and sat down at the table with it. I couldn’t even read it, let alone understand it. I sat at this table sad, mad, and very embarrassed.

I went on to study for my GED. I eventually passed the test. I couldn’t afford the college courses that were available, so a friend let me study his books once his semester was over. Once I got the money I enrolled. A fire was lit within me. I began to realize how I had been taken advantage of due to being illiterate. I returned to the prison law library to study. Not only was I studying the law, I began studying my case file—at least, the incomplete case file I was given. I literally had gotten sick uncovering how my constitutional rights were not only violated but disregarded as if I wasn’t a human being.

By this time, the same court-appointed attorney who represented me at my trial was also representing for my direct appeal. Unfortunately, once my direct appeal was denied, I no longer had a lawyer. I could not afford to hire my own attorney. I’ll never forget sitting in the prison cell with nowhere else to turn. I looked in the mirror and told myself, “The time is now. You can do it.”

I had a one year time frame to file my Post Conviction Relief Act (P.C.R.A.) Petition. If I did not make this deadline, I would forfeit my right to argue my innocence. By this time, I was enrolled in a business education class that also taught typing. At this point, because I had no lawyer, I was officially representing myself. Ten months later, I filed my P.C.R.A. Petition to the courts pro se—by myself. I was granted an evidentiary hearing and was appointed an attorney to represent me.

This attorney abandoned me after my appeals were denied and never even contacted me when my last appeal was denied—I only found out about it months later. This almost caused me to lose my appeal rights. Once again I began representing myself. I had come to the conclusion that no one would fight for my innocence harder than me. That being said, as I continued my fight and I also reached out to hundreds of Innocence Projects and attorneys for help.

My appeals were running out. I was down to my last round of federal appeals. I had to deal with the reality that—if I were to lose—I would die in prison an innocent man.

I went on to file my federal habeas corpus appeal pro se. I gave it all I had. I had to deal with the fact that the prosecution withheld evidence of my innocence and never turned it over to me or any of my previous attorneys.

A well respected attorney came to my aid by the name of Michael Wiseman. He believed in me and my innocence. Mr. Wiseman and his team accepted my case on a pro bono basis. He amended my appeal and adopted the issues I raised pro se.

After sixteen and a half years in prison for a crime I was innocent of, the U.S. Third Circuit Court of Appeals vacated my sentence on the grounds of insufficient evidence—which is equivalent to a “not guilty” verdict—and ordered my immediate release, barring a retrial. I was released and reunited with my family.

But my experience of justice and happiness was short-lived and lasted a mere 148 days. The prosecutor in my case appealed to the U.S. Supreme Court, which reinstated my conviction in a single day and denied my attorneys the right to file briefs or make oral arguments. I had to return to prison just months after being exonerated.

After eighteen and a half years, my legal team finally got their hands on some of the missing pages of my case discovery that the prosecutors had never turned over. After all this time, we found out not only that the prosecution knew I was innocent from day one, but that they let false testimony go uncorrected from the start of my court proceedings all the way up to the Supreme Court.

I’m now heading back to court twenty years later. Hopefully, it will be once and for all. If not—I will NEVER stop fighting to prove my innocence. I’m one of MANY innocent prisoners.

Lorenzo Johnson served 16 and a half years of a life-without-parole sentence until 2012, when the Third Circuit Federal Court of Appeals ruled there was legally insufficient evidence for his conviction. He remained free for four months, after which the US Supreme Court unanimously reinstated the conviction and ordered him back to prison to resume the sentence. With the support of The Pennsylvania Innocence Project, he is continuing to fight for his freedom. Though he does not have internet access himself, you can email his campaign, make a donation, or sign his petition and learn more at: http://www.freelorenzojohnson.org/sign-the-petition.html.

Sunday, July 31, 2016

Dechaine's case highlights need for more reform

The following editorial was published by the Camden (Maine) Herald on July 28, 2016.

This week we end our series on the case of Dennis Dechaine, who was convicted in 1989 for the murder of 12-year-old Sarah Cherry. Without solid proof either way, his story forces us to consider the possibility of wrongful conviction.

Since DNA testing began, 342 people have been exonerated in the United States. None of these has been in Maine, possibly because of the restrictions on post-conviction review.

Evidence has mounted since Dechaine's conviction that points to his innocence, including testimony from forensic experts about the time of death occurring after Dechaine was picked up by police, discrepancies between detectives' trial testimony about Dechaine’s alleged admissions and their notes on those statements, and statements implicating potential alternate perpetrators with histories of sexual assault — we found statements to police from 2004 implicating two more sex offenders in a review of the case files on Monday.

The evidence against Dechaine has been repeatedly called "mountainous," "voluminous" and "substantial" in denials of his appeals. But it can all be explained by his contention that he was framed. The state has not taken that argument seriously enough to rebut it. Is it inconceivable that a killer would plant items at the scene implicating another person?

Many have argued that after numerous proceedings and denials, Dechaine and his supporters should lay the case to rest. But those denials were based on the technicalities of the post-conviction review and DNA statutes, a narrow interpretation of which allows only DNA evidence to be admitted in court hearings.

While Dechaine has been locked up, the state has blocked any new evidence from coming before a jury in two ways that also illustrate a double standard at work in this case.

First, the state destroyed all the DNA evidence associated with the case — the one codified way for a convict to prove his innocence — as part of a routine cleaning. This has seriously hindered Dechaine's ability to get a new trial. The only DNA evidence that remained was blood on a thumbnail clipping. Tests excluded Dechaine as a source, but the blood could not be definitively connected to the crime. Further attempts by the defense to scrape Cherry's clothing for bits of DNA 25 years after the murder yielded only degraded strands. A technician from the lab that did the DNA analysis said at a hearing the DNA obtained from the clothing items was “of low quality,” leading to "confusing interpretations" and “inconclusive results.”

Dechaine had been denied the chance to test the actual biological evidence connected to the crime — when it was still available — because of testimony on the low likelihood of getting good results. But when inconclusive test results of low-quality, degraded DNA appeared not to rule out Dechaine (1 in 374 Caucasian men could be a source), that was used against him as a reason to deny him a new trial.

Second, the state successfully moved to dismiss Dechaine's 1995 petition for a new trial by invoking a statutory amendment written by the Attorney General's Office allowing a petition to be dismissed on technicalities deemed to put the state at a disadvantage. The state made the dubious claim that a former defense lawyer had spread rumors of Dechaine’s guilt. Because that lawyer had recently suffered a stroke and could no longer testify, the state claimed a disadvantage.

The courts accepted these allegations as reasons to dismiss the petition, yet in Dechaine's 1992 hearing for a new trial, they rejected testimony regarding out-of-court statements implicating an alternative suspect as "hearsay."

State workers revisit the case with a certain weariness, while high-ranking officials have lashed out at those who insist Dechaine is innocent. Former Attorney General Michael Carpenter wrote in a letter to two Dechaine supporters, “I have never seen a case in which I have been more persuaded of a defendant’s guilt. The matter is simply not open to rational debate.”

Former Attorney General William Stokes wrote in a letter that Dechaine's claim of innocence was "bogus" and that his timing of the filing of his petition for post-conviction review was a “transparent and cynical” attempt to disadvantage the state.

Attorney General Janet Mills in a misleading letter to the Portland Press Herald in February said, “DNA evidence has been exhaustively analyzed at Mr. Dechaine’s request, but the results do not help him."

No court reviewing this case has acknowledged that the state's routine destruction of biological evidence is the reason Dechaine's post-conviction review process is spinning in circles. His chances for freedom, if he is innocent, have been hanging on the thumbnail clipping of a 12-year-old girl and a few threads from her shirt.

The unfolding of this case over the past 28 years has highlighted a number of ways convictions can be uncertain, and has prompted several changes to Maine law to help counteract that uncertainty: confessions must now to be recorded, for one example.

Our legislators should take another look at the post-conviction review statute and add provisions recommended by the Innocence Project: Courts should be allowed to vacate convictions or grant a new trial — where all the evidence can be heard — when DNA evidence of a case has been destroyed.

The following editorial was published by the South Bend (IN) Tribune on July 28, 2016.

As the presidential contest kicks into high gear with Indiana Gov. Mike Pence on board as the Republican vice presidential nominee, a smaller, less visible but meaningful campaign is being waged.

The effort seeks justice — in the form of a pardon from Pence — for a man wrongly convicted in an attempted murder and robbery in Elkhart 20 years ago.

As detailed in a recent Chicago Tribune story, more than two years ago, the Indiana Parole Board recommended that Pence issue a pardon for Keith Cooper. Cooper was convicted and sentenced to 40 years for an October 1996 armed robbery in the apartment complex where he lived, during which a 17-year-old was shot in the stomach. After the Indiana Court of Appeals overturned his co-defendant’s conviction, Cooper was given the choice of being set free with the felony conviction on his record or facing a new trial. He chose to go home to his wife and three children.

That decision has affected his ability to secure a better living. And his name isn’t truly cleared.

With the help of a young man who was working on a lawsuit filed by Cooper’s co-defendant, Cooper has built a solid case for a pardon: The victims of the armed robbery recanted and identified photos of the two men who were actually implicated by the DNA evidence. Other witnesses in the apartment also signed affidavits recanting their testimony against Cooper. In a six-minute video that was part of Cooper’s petition before the Indiana parole board, the man who was shot during the robbery urged the board to correct his grave mistake.

And here’s what Michael A. Christofeno, the original trial prosecutor, said in a letter to Pence earlier this year: “Justice demands that Mr. Cooper be pardoned. We cannot undo the wrongful imprisonment of Mr. Cooper, but we can undo his wrongful conviction with a pardon.”

If granted, legal experts say it would be the state’s first exoneration they can recall through a gubernatorial pardon based on innocence.

Conventional wisdom says that the governor, who didn’t act in the case before he was in such a bright national spotlight, isn’t likely to do so in the midst of a presidential campaign. A communication consultant expert quoted in an Associated Press story says approving at this time would be a distraction. In that article, Fran Watson, a clinical professor of law at Indiana University McKinney School of Law, says she doesn’t expect a pardon before the election but adds that Pence has “got this really good opportunity to do the right thing without anyone objecting.”

The victims, prosecutor and parole board have spoken. Now it’s past time for Gov. Mike Pence to act, to take this really good opportunity to do what is right.

Monday, July 18, 2016

Bad tests, wrongful convictions and justice denied

The following editorial was published by the St. Louis (Missouri) Post-Dispatch on July 16, 2016.

Police in many states, including Missouri, increasingly are using mobile drug tests to perform spot checks during traffic stops. The kits can produce the wrong result in as many as one out of three instances. Americans of all racial and income backgrounds should shudder at the injustices dealt to law-abiding citizens.

Thousands of people may have gone to jail as a result of wrong test results. Arrest and conviction records follow them for the rest of their lives. Yet police officers continue to use the kits.

The New York Times and ProPublica recently reported on the extraordinary rate of “false positives” returned by test kits marketed to police under brand names such as Serchie Nark II. Different kits test for cocaine, marijuana, opioids or methamphetamine.

When a chemical mixture turns a certain color during the test, it signals to police officers that an illegal drug could be present. But the test used for cocaine also can return the same positive color for 80 other compounds, including acne medications and several types of household cleaners.

The high rate of false positives offers more than ample reason to question their continued use. Manufacturers like Serchie now warn that the results should be treated only as preliminary, and more thorough lab tests are required.

The case of Amy Albritton offers a stark example of how quickly such tests can ruin a life. She and a friend were driving to Houston from her home in Louisiana in 2010 when an officer pulled her car over. He asked permission to search her car and came up with a single, white crumb from the floor. His test kit returned the positive color for cocaine.

Thus began Albritton’s nightmare of arrest and negotiations with a prosecutor while she insisted she had not possessed illegal drugs. The result was a plea bargain that left a felony conviction on her record, discoverable whenever she applied for a job or to rent an apartment.

The test was wrong. The crumb, a subsequent test proved, was just a dried-up bit of food.

Years later, the Harris County district attorney’s office admitted the error, but it came far too late for her to recover her shattered life — lost job, lost apartment, a custody battle for her child.

In Houston, 59 percent of those wrongfully convicted because of faulty test kits were black, even though they constitute only 24 percent of the population. It usually requires money and lawyers to get false convictions expunged, and that’s where these injustices reap their biggest toll.

The presumption of innocence forms the basis of our judicial system. A highly flawed commercial field testing system must never be allowed to short-circuit the rights of law-abiding citizens.

Saturday, May 28, 2016

Neenah (Wisconsin) Police Department violates trust

The following editorial by the (Appleton, WI) Post-Crescent editorial board was published on May 6, 2016.

We watched more than 90 videos related to officers shooting a hostage outside Eagle Nation Cycles on Dec. 5, and have come to one conclusion: We have no confidence the leadership of the Neenah Police Department can run a force that protects its citizens.

The videos released by the Department of Justice are appalling in several ways.

  • Neenah police officers look ill-prepared as they storm Eagle Nation Cycles and their retreat appears disorganized.
  • Neenah police officer Craig Hoffer was shot in the helmet. Yet he went back on the scene after specifically being told not to by a police sergeant. He ended up shooting Michael L. Funk, a hostage who had escaped the motorcycle shop. 
  • Neenah police officers fired without warning. Officers did not order Funk to drop his handgun before shooting him. Rather, they yelled, "Show me your hands!" after they shot him and he hit the pavement. It would have taken literally less than a second to say "drop the gun" and an innocent man could still be alive. 
  • Most of all, we are outraged about the fact that a police officer gunned down a man and laughed about it.

Laughed.

This is indefensible.

There is not one person who can see video of a police officer laughing about killing a man and think that person should ever be employed as a cop with the power to kill.

Something is broken in the Neenah Police Department. The department is dysfunctional. The leadership is absent.

If the department's leadership team says its officers followed the department's policy — which was backed up by the Wisconsin Department of Justice and a consultant's report — then why is an innocent man dead?

And why are police laughing about it?

Neenah can't afford another innocent man gunned down by police and left to die.

Thursday, May 12, 2016

Pa. prosecutors' concern over wrongful convictions is long overdue: Andy Hoover

The following op-ed by Andy Hoover was published by PennLive on May 11, 2016.

Last month, the Pennsylvania District Attorneys Association released its new guidelines on witness interviews and photo lineups to prevent wrongful convictions.

With simultaneous press conferences in various areas of the state, the PDAA suggested it is serious about reforms to be sure that they are getting the right person during investigations.

It was not a difficult trail for the DAs to walk. This path was blazed nearly a decade ago by advocates, academics, lawyers, and other politicians.

In 2006, Senate Judiciary Committee Chairman Stewart Greenleaf,  R-Montgomery, proposed a novel idea when he introduced a resolution to create an advisory committee to study why innocent people are sometimes convicted of crimes and what are best practices for diminishing the likelihood of wrongful convictions.

At the time, the reality of innocent people in America's prisons had penetrated the national conscience.

Seven years earlier, Illinois halted its death penalty after it was revealed that the state had freed more innocent people from its death row than it had executed.

Several years after that, Greenleaf led an effort to loosen Pennsylvania law to give inmates with legitimate innocence claims greater access to DNA testing. That law led to the exoneration of several people who had served years in prison, including one man who had spent over 20 years on death row.

Studying root causes of wrongful convictions and fixing the criminal justice system to decrease the chances of it happening seemed non-controversial.

But when the committee started its work in 2007, the District Attorneys' association tried to undermine its legitimacy before it could even get started. At a press conference with then-District Attorney Lynne Abraham of Philadelphia, prosecutors complained about the make-up of the committee.

Never mind that the committee included Abraham and four other sitting district attorneys, including Ed Marsico of Dauphin County; Frank Fina of the Attorney General's office; two former attorneys general; Victim Advocate Carol Lavery and two other victims' rights activists; two chiefs of police; a retired FBI agent; and several former prosecutors.

The committee's work took four long years but, in 2011, it released its report, a 316-page tome that thoroughly analyzed the causes of wrongful convictions and offered a series of recommendations to fix the problem.

The committee's recommendations included greater preservation of biological evidence, changes in witness interviews and photo lineups, state-based funding for indigent defense services, video and audio recording of interrogations, and compensation for people who are wrongly convicted.

Unfortunately, law enforcement, led by the District Attorneys' association, released its own minority report.

That report diminished the committee's recommendations and refused to even acknowledge the reality of innocent people in prison.

Signers of the report included Marsico, Fina, Allegheny County District Attorney Stephen Zappala, and Philadelphia District Attorney Seth Williams, who had been elected to replace Abraham in the interim.

Perhaps most appalling of all, the minority report called the idea of compensating wrongly convicted people "preposterous." Compensation for innocent people who are convicted of crimes is probably not preposterous to Han Tak Lee.

Lee spent 24 years in state prison for a cabin fire in Monroe County that killed his daughter. His conviction was based on junk arson science.

Released in 2014 and now 81, Lee lost years of his life and now lives on public assistance and generous donations from a support group. A New York Times profile on Lee in March highlighted the negative impact of his incarceration on his mental health.

Lee isn't the only person who would benefit from a law to compensate the wrongly convicted. Through dogged investigative journalism, the late Pete Shellem of The Patriot News freed several Pennsylvanians who were serving life sentences.

After the committee released its report, legislation was introduced to implement many of its recommendations. The legislation went nowhere, largely as a result of the minority report from law enforcement.

Since then, the legislative effort to provide greater protections to stop wrongful convictions has had its starts and stops.

Bills to lengthen deadlines for introducing new evidence after conviction, to appropriate state funding to train public defenders, and to allow police to record interrogations without legal entanglements have stalled in the face of opposition from law enforcement.

There is every reason to believe that the commonwealth's district attorneys want to prevent the conviction of innocent people.

When that happens, an innocent person sits in prison while a guilty person continues to walk the streets. But to take District Attorneys' association newfound effort to implement best practices seriously, it has to be a more serious partner on reform.
It's nice that the district attorneys got religion on wrongful convictions. Many of us are left with a simple question: What took you so long?

Andy Hoover is the legislative director of the American Civil Liberties Union of Pennsylvania.