The Cardozo Law School Innocence Project is often referred to as "the" Innocence Project. It was the first law school-affiliated innocence project, founded and still directed by Barry Scheck and Peter Neufeld, two lawyers who can legitimately claim international renown. But it was the scientific certainty behind exonerations obtained by the Innocence Project that made it so well known and so influential.
The Innocence Project limited its caseload to those in which DNA could indisputably prove an inmate’s innocence. That’s strong stuff, and it has forced a recognition of the myriad factors underlying those wrongful convictions–faulty eyewitness identification, junk or fraudulent science, fabricated "snitch" and co-defendant testimony, police and prosecutorial misconduct, false confessions and ineffective defense attorneys.
Realizing that if they have identified so many wrongly convicted citizens in cases where DNA could be useful (a small fraction of all criminal cases), Mr. Scheck, Mr. Neufeld and other Innocence Project participants around the country have taken the decision to examine some of those other cases, including arson cases. Their first arson case involves two cases, those of Cameron Todd Willingham and Ernest Willis, both of Texas.
Fire origin and cause expert Dr. Gerald Hurst has said, "If there is a fatal fire and someone survives, the survivor will be charged with arson and murder." That certainly was true in both Willingham’s and Willis’ cases. Willingham survived a fire that claimed the lives of his three, young children. Willis escaped a blaze in which two women perished. The conclusions of the fire investigators that the fires were incendiary was based on low burns and irregular burn patterns, indicators that were once accepted by many, but have now been largely discredited, at least in cases where fires grow to involve the entire room or structure. Other indicators relied upon in these cases included annealed furniture springs, discolored concrete, and crazed glass. In the Willingham case, auto-ventilation was described as an indicator of an incendiary fire, and in the Willis case, the amount of damage to the ceiling was said to correlate to the amount of flammable liquid on the floor, even though all of the samples came back negative.
Both men were charged with arson and multiple counts of murder, precisely because their accounts of the fires were different than what the state’s fire investigators said had happened. That meant they were lying. That meant they were killers. Both were convicted and sentenced to death.
In the summer of 2004, after he had spent 17 years on Death Row, a federal judge ordered a new trial for Ernest Willis. Three months later, the local district attorney conceded there was no evidence to support the charge. "I don't have to decide whether he's innocent or not, but I think that's probably a probability, that he is innocent," said Ori White, the district attorney in the 112th judicial district. Willis was the first man released from Death Row in seven years.
But it was too late for Willingham. Five months before Willis’ new trial was ordered, eight months before Willis walked off Death Row a free man, Cameron Todd Willingham was executed by the State of Texas. Murdered by the State of Texas, on discredited, junk science. "Gee, we had no idea," won’t work to excuse Willingham’s murder. Texas judges, the members of the Board of Pardons and Parole, and Gov. Rick Perry all turned aside a report by Dr. Hurst that concluded, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." Many people doubt any of these authorities bothered to even read Dr. Hurst’s report. Willingham’s February 17, 2004 execution went forward as scheduled.
Dr. Hurst’s report in Willingham’s case was reviewed by three other fire experts–private consultants John Lentini and John DeHaan, and Louisiana fire chief Kendall Ryland. They concurred with Hurst’s conclusions. Even Edward Cheever, one of the state fire investigators who worked on the Willingham fire, conceded, "At the time of the [Willingham] fire, we were still testifying to things that aren't accurate today." He added, "Hurst was pretty much right on. We now know not to make those same assumptions."
Or do we? What passes as expert testimony in too many arson cases continues to be littered with debunked theories passed off as science. In some instances, plain lies turn the key on innocent people. Few judges and even fewer jurors understand the evidence well enough to make informed decisions, and since the lawyers don’t understand it, either, wrongful arson convictions continue to occur.
The report on the Willingham and Willis cases was prepared for the Innocence Project by fire origin and cause investigators John J. Lentini, Daniel L. Churchward, Douglas J. Carpenter, David M. Smith, and Attorney Michael A. McKenzie. They are members of the Arson Review Committee (ARC) of the International Association of Arson Investigators (IAAI). Formation and functioning of the ARC is a significant accomplishment, since the membership of IAAI remains split over the application of science to fire investigation. Many arson investigators continue to believe that fire investigation is a subjective art, not an objective science. [A similar review group, the Tetrahedron Committee, was independently formed six years ago to review arson cases, and its participants met with ferocious criticism from "old school" fire investigators. The IAAI has come a long way in officially sponsoring the ARC. The Tetrahedron Committee continues to review cases. E-mail Truth in Justice for information on how to request assistance.]
We hope that the Innocence Project’s expansion into the science of fire will have the same, far-reaching effects as its efforts with DNA.
Sunday, May 07, 2006
The Steven Avery Case
The Steven Avery case in Wisconsin has made things tough for everyone in the Midwest with innocence claims. I received an average of 35 verbally abusive, bordering-on-hysterical e-mails each day for the past week (since the nephew’s “confession”) at Truth in Justice from idiots who think we had something to do with Avery’s exoneration for a rape he did not commit. The “thinking” (I use quotation marks because these people are doing precious little thinking) is that he should have stayed in prison even though he was innocent because then Teresa Halbach would still be alive.
Well, I don’t think Teresa Halbach is dead. I think she ditched and headed way out of town, probably Canada. She had help from at least one person, whoever drove her car out to Avery’s junk yard and left it there, and I expect the key was left in the ignition. They didn’t “find” it in Avery’s dresser drawer with his DNA on it, nor did they find Avery’s blood in Teresa’s car, until after they took blood from Avery. Who carries just an ignition key, not even on a ring? She took the other keys with her, or gave them to the person who helped her run off. I don’t think Teresa in her wildest dreams thought something like this would happen, and once the ball started rolling, she didn’t dare come back. Remember how everyone turned on the “runaway bride” last year when she came back? They were preparing to present a murder charge against her fiancé to the grand jury! When she turned up, they charged her with felonies for lying to police about what happened to her.
The crime lab and FBI have not said that the DNA of tooth and bone fragments in the burn pit match Teresa’s DNA. They said it’s “consistent with” Teresa’s DNA. “Consistent with” is a junk science red flag. DNA from a dog or a cow would be “consistent with” DNA from a human because they are all mammals. “Consistent with” is not the same as “match” and they use the “consistent with” term to deliberately mislead because most people don’t understand the difference. Now, if Teresa had gone down in a terrible airplane crash, you can bet they’d be all over her hair brush, her tooth brush, the shower drain and such for her DNA, and she wouldn’t be declared dead until they made a match with whatever burned fragments they found. No, she isn’t dead.
And his nephew Brendan Dassey’s story is utter poppycock elicited from a kid who’s developmentally disabled and trying to tell the cops what he thinks they want to hear. It is not consistent with the evidence. If you stab someone in the abdomen and cut her throat, you’ll have to dispose of a lot more than the sheets. And just think about trying to strangle someone—for 2 to 3 minutes yet—after you’ve cut her throat. My God, you’d be covered in blood head to toe. It would be everywhere, especially in a trailer. And then, covered in blood, you carry someone who’s gushing blood through the trailer and out to a garage, without leaving a trail. You then shoot her 10 times with a .22 rifle, come back and clean up the mess (which apparently is only in the garage) with gasoline and bleach, but you leave the shells where they fell. Sure. His “confession” is straight out of “Grand Theft Auto,” a violent video game that includes shackling a prostitute begging for mercy. He threw in the story line of the zombie movie “Land of the Dead” with the baloney about how she wouldn’t die so they had to use all those methods to kill her. It doesn’t take much to figure out the sources for this story. Apparently the cops don’t stay up to date on adolescent entertainment. Neither does the frighteningly ignorant general public.
Now they’ve added charges based on the statements of prison snitches stepping on one another to get a deal for themselves, claiming that Avery was already planning to commit a crime like this while he was in prison (like he knew all along he’d get out short of Mandatory Release), and that Avery bought handcuffs three weeks after he got out. That would have been when he was living in an ice shack. Yes, Avery lived in an ice shack for the first six months after his release. The lawyers at the innocence project found out and got someone to donate the trailer so he’d have something better than a shanty to live in.
This is how they do it. What do I think will happen next? Avery and his nephew will be convicted on absolutely every charge the Calumet County DA can concoct. Hell, they have already been convicted. Hopefully, the Department of Corrections won’t toss them into the general population, because they’d be killed. That would make it even worse when Teresa is finally “outed” as alive and well and living someplace like Vancouver. Because, yes, I think she will eventually be found, but she won’t come forward voluntarily—someone who knows her will spot her, or she’ll make contact with family and be discovered that way.
Well, I don’t think Teresa Halbach is dead. I think she ditched and headed way out of town, probably Canada. She had help from at least one person, whoever drove her car out to Avery’s junk yard and left it there, and I expect the key was left in the ignition. They didn’t “find” it in Avery’s dresser drawer with his DNA on it, nor did they find Avery’s blood in Teresa’s car, until after they took blood from Avery. Who carries just an ignition key, not even on a ring? She took the other keys with her, or gave them to the person who helped her run off. I don’t think Teresa in her wildest dreams thought something like this would happen, and once the ball started rolling, she didn’t dare come back. Remember how everyone turned on the “runaway bride” last year when she came back? They were preparing to present a murder charge against her fiancé to the grand jury! When she turned up, they charged her with felonies for lying to police about what happened to her.
The crime lab and FBI have not said that the DNA of tooth and bone fragments in the burn pit match Teresa’s DNA. They said it’s “consistent with” Teresa’s DNA. “Consistent with” is a junk science red flag. DNA from a dog or a cow would be “consistent with” DNA from a human because they are all mammals. “Consistent with” is not the same as “match” and they use the “consistent with” term to deliberately mislead because most people don’t understand the difference. Now, if Teresa had gone down in a terrible airplane crash, you can bet they’d be all over her hair brush, her tooth brush, the shower drain and such for her DNA, and she wouldn’t be declared dead until they made a match with whatever burned fragments they found. No, she isn’t dead.
And his nephew Brendan Dassey’s story is utter poppycock elicited from a kid who’s developmentally disabled and trying to tell the cops what he thinks they want to hear. It is not consistent with the evidence. If you stab someone in the abdomen and cut her throat, you’ll have to dispose of a lot more than the sheets. And just think about trying to strangle someone—for 2 to 3 minutes yet—after you’ve cut her throat. My God, you’d be covered in blood head to toe. It would be everywhere, especially in a trailer. And then, covered in blood, you carry someone who’s gushing blood through the trailer and out to a garage, without leaving a trail. You then shoot her 10 times with a .22 rifle, come back and clean up the mess (which apparently is only in the garage) with gasoline and bleach, but you leave the shells where they fell. Sure. His “confession” is straight out of “Grand Theft Auto,” a violent video game that includes shackling a prostitute begging for mercy. He threw in the story line of the zombie movie “Land of the Dead” with the baloney about how she wouldn’t die so they had to use all those methods to kill her. It doesn’t take much to figure out the sources for this story. Apparently the cops don’t stay up to date on adolescent entertainment. Neither does the frighteningly ignorant general public.
Now they’ve added charges based on the statements of prison snitches stepping on one another to get a deal for themselves, claiming that Avery was already planning to commit a crime like this while he was in prison (like he knew all along he’d get out short of Mandatory Release), and that Avery bought handcuffs three weeks after he got out. That would have been when he was living in an ice shack. Yes, Avery lived in an ice shack for the first six months after his release. The lawyers at the innocence project found out and got someone to donate the trailer so he’d have something better than a shanty to live in.
This is how they do it. What do I think will happen next? Avery and his nephew will be convicted on absolutely every charge the Calumet County DA can concoct. Hell, they have already been convicted. Hopefully, the Department of Corrections won’t toss them into the general population, because they’d be killed. That would make it even worse when Teresa is finally “outed” as alive and well and living someplace like Vancouver. Because, yes, I think she will eventually be found, but she won’t come forward voluntarily—someone who knows her will spot her, or she’ll make contact with family and be discovered that way.
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