Thursday, August 16, 2007

Guest Shot: Gonzo given even more power over life and death

by Mary Shaw

August 16, 2007

Since the first DNA exoneration took place in the U.S. in 1989, 142 people have been freed via DNA evidence after being wrongfully convicted of crimes they did not commit. Many more have been exonerated via other kinds of late-coming evidence.

Some of those innocent people were freed from death row. These folks are the "lucky" ones, because they had a chance to prove their innocence before they were put to death. How many have not been so lucky? We cannot know.

But do we really want to risk that kind of mistake?

Even if you're in favor of the death penalty, surely you want to take every precaution to ensure that the condemned prisoner is truly guilty, and that you're not killing the wrong person. And often that takes time.

Nevertheless, time may not be an available luxury for prisoners in the future, even those condemned to die.

The Washington Post reported yesterday that Attorney General Alberto Gonzales will be getting "expanded powers to hasten death penalty cases under regulations being developed by the Justice Department."

The Post goes on to say that these new rules "would give Gonzales the authority to approve "fast-track" procedures by states in death penalty cases, enabling them to carry out sentences more speedily and with fewer opportunities for appeal if those states provide adequate representation for capital defendants."

There are a lot of things wrong with these new rules. For example, as cited in the article, they do not provide enough oversight to ensure that defendants are receiving adequate legal counsel. They "allow states to ... claim they have a capital representation case that is functional, when in fact it might not be functional at all" and "It may not prevent people from being wrongfully sentenced to death."

The article also contends that "the underlying legislation is faulty because it allows Gonzales, who is the nation's chief prosecutor, to effectively determine the pace of executions."

And there are more reasons to believe that Gonzales is the wrong person to do this. (Click here to read about Gonzales's horrific track record on death penalty cases in Texas.)

It is obvious that these new rules will make it easier for innocent people to be executed. And even one wrongful execution is too many.

How would Gonzales feel if one of his family own members were on death row, wrongfully accused of a crime that he or she did not commit? Does he believe that it could never happen? Or would that be somehow different?

Author's Website:

Authors Bio: Mary Shaw is a Philadelphia-based writer and activist. She is a former Philadelphia Area Coordinator for the Nobel-Prize-winning human rights group Amnesty International, and her views on politics, human rights, and social justice issues have appeared in numerous online forums and in newspapers and magazines worldwide. Note that the ideas expressed here are the author's own, and do not necessarily reflect the opinions of Amnesty or any other organization with which she may be associated. E-mail:

Tuesday, August 07, 2007

Guest Shot: Innocents in Prison

Atlantic Unbound August 7, 2007
Legal Affairs by Stuart Taylor Jr.

Innocents in Prison

Many thousands of wrongly convicted people are rotting in prisons and jails around the country.

As recently as 20 years ago, it was extraordinarily rare for a convicted prisoner to establish his or her innocence conclusively enough to get public attention. That changed with breakthroughs in DNA science.

The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners­including 15 who had been sentenced to death­have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey's and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

The kind of DNA evidence that can conclusively prove innocence or guilt is available only in a small fraction of cases, mainly rapes and rape-murders in which sperm is recovered. But these cases are the tip of the iceberg. Extrapolation from DNA and other exonerations suggests that the overall error rate in violent-crime prosecutions is probably much higher than the estimates of less than 1 percent offered by many criminal-justice officials.

In a stunning non-DNA case that shows how low law enforcement can go, a federal District judge in Boston ordered the government on July 26 to pay $102 million in damages to victims of the FBI's "outrageous" role in framing four men for a 1965 gangland murder. The four spent a combined total of 109 years in prison. Two died there.

"FBI officials up the line allowed their employees to break laws, violate rules, and ruin lives," wrote the judge, Nancy Gertner. She found that the FBI had known all along that a mob hit man named Joseph Barboza was lying when he claimed he saw the four men kill a mobster named Edward Deegan. Barboza and the FBI protected the real killer, Vincent Flemmi, because Barboza and Flemmi were FBI informants.

Although that was decades ago, the FBI (like most police agencies) still insists on a policy­ of virtual prohibition of tape-recording interviews­that allows agents to conceal or distort what suspects and witnesses say. The usual motive is not to frame innocent people but to fit evidence to preconceived (and often mistaken) theories of the case.

The FBI has defended its policy on the grounds that taping might deter suspects from talking and that jurors might be offended to hear police using lawful but deceptive interrogation tricks such as lying to suspects and feigning sympathy. But the first concern seems far-fetched in most cases and the second is illegitimate. Refusing to tape interviews hides important evidence from juries as well as lending itself to abuse.

Police and/or prosecutorial misconduct appears to figure in more than half of the 205 convictions that DNA has proven false. Specific reasons for those convictions are catalogued in "Judging Innocence," a study by Brandon Garrett, a law professor at the University of Virginia, slated for publication in January in the Columbia Law Review. Mistaken eyewitness identifications­often due to police subtly pointing witnesses toward the people the cops suspect­figured in 79 percent of these false convictions. Flawed or corrupt testimony by scientific "experts" (about hair, blood types, and the like) figured in 55 percent. False confessions, mostly by juvenile defendants, figured in 16 percent.

What percentage of the 2.2 million men and women locked up in state and federal prisons and local jails are actually innocent of the charged crimes? This is not knowable with any confidence. But we can extrapolate from a few data points.

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes. And an unknown number of innocents have not been exonerated.

Does this suggest that we may have 50,000 innocent prisoners (2.3 percent times 2.2 million) in this country? Possibly, but not necessarily. Gross and Barbara O'Brien of Michigan State Law School stress in another forthcoming article that capital cases (and the DNA exonerations) are not representative of false convictions in general.

On the one hand, for example, the percentage of actual innocents may be higher among capital murder defendants­virtually all of whom go to trial­than among the 90 percent of violent-crime defendants whose cases end in plea bargains.

On the other hand, a much higher percentage of, say, robbery convictions than of capital murder convictions are based on unreliable eyewitness identifications. So perhaps the robbery error rate is much higher than 2.3 percent. And it's clear that most people wrongly convicted of lesser crimes are far less likely to win exoneration than are death-row inmates (who get much better post-conviction legal representation) and rape convicts (when DNA evidence is available).

Gross and others have also found that a very disproportionate number of exonerated prisoners are black or Hispanic. Discrimination no doubt accounts for some of this. So does the especially high error rate in cross-racial identifications, which creates special risks for black men wrongly accused of raping or robbing white people.

But well-off white men are not exempt from wrongful prosecution. This was spectacularly illustrated by the fabricated rape charges against three innocent Duke lacrosse players. Durham District Attorney Mike Nifong falsely demonized them as rapists, racists, and "hooligans," thereby gaining enough black votes to win what had been an uphill election battle. Nifong (who is white) also rigged a photo-identification process to frame the three for a nonexistent crime, hid DNA proof of innocence, and lied to the public and the court for many months before North Carolina Attorney General Roy Cooper took over the case and declared the defendants innocent.

Nifong has been disbarred and still faces a contempt-of-court charge. But his richly deserved fate is almost unheard-of. Most state bars and judges have given passes even to prosecutors who have hidden or falsified evidence to put innocent men and women on death row.

The DNA exonerations have spurred reforms by some states, but most still use shockingly unreliable police practices.

The good news, according to the Innocence Project, is that 42 states and the District of Columbia now require that inmates be given access to any DNA evidence; 22 (plus D.C. and the federal government) require preservation of DNA evidence; and 22 (plus D.C. and the federal government) compensate victims of false convictions.

But only three states (and some cities) have adopted the reforms to eyewitness procedures­such as excluding officers who know which person is the suspect, among other safeguards­that experts say are necessary to prevent false identifications. And only the District of Columbia, nine states, and some 500 localities keep police honest by requiring them to tape interrogations.

The courts, meanwhile, have "performed miserably in ferreting out the innocent" convicts, as Adam Liptak observed in a July 23 New York Times column. The Garrett study shows that the Supreme Court refused to hear the appeals of 30 of the first 200 prisoners who were later exonerated and rejected the one appeal it did hear.

The justices, and Congress, have also made it difficult for state prisoners to seek relief in lower federal courts. Most recently, on June 15 the conservative high court majority slammed the door on a murder convict because his lawyer had filed his appeal three days late­on the mistaken advice of a federal District judge. This decision seems perverse, especially in an era of DNA exonerations when, as a Justice Department commission observed in 1999, "the strong presumption that verdicts are correct, one of the underpinnings of restrictions on post-conviction relief, has been weakened."

Indeed, so formidable are the procedural obstacles facing falsely convicted innocents that only 10 percent of the 205 DNA exonorees made their innocence the basis of their initial appeals­and none was successful. This reflects the appeals courts' almost exclusive focus on whether the prosecutor or judge made procedural errors and almost complete deference to findings of guilt by juries and trial judges. They should defer less.

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Monday, August 06, 2007

Guest Shot: Selective Prosecution

The following editorial was published in the New York Times on August 6, 2007.

Selective Prosecution

One part of the Justice Department mess that requires more scrutiny is the growing evidence that the department may have singled out people for criminal prosecution to help Republicans win elections. The House Judiciary Committee has begun investigating several cases that raise serious questions. The panel should determine what role politics played in all of them.

Putting political opponents in jail is the sort of thing that happens in third-world dictatorships. In the United States, prosecutions are supposed to be scrupulously nonpartisan. This principle appears to have broken down in Alberto Gonzales’s Justice Department — where lawyers were improperly hired for nonpolitical jobs based on party membership, and United States attorneys were apparently fired for political reasons.

Individual Democrats may be paying a personal price. Don Siegelman, a former Alabama governor, was the state’s most prominent Democrat and had a decent chance of retaking the governorship from the Republican incumbent. He was aggressively prosecuted by both the Birmingham and Montgomery United States attorney’s offices. Birmingham prosecutors dropped their case after a judge harshly questioned it. When the Montgomery office prosecuted, a jury acquitted Mr. Siegelman of 25 counts, but convicted him of 7, which appear to be disturbingly weak.

The prosecution may have been a political hit. A Republican lawyer, Dana Jill Simpson, has said in a sworn statement that she heard Bill Canary, a Republican operative and a Karl Rove protégé, say that his "girls" — his wife, the United States attorney in Montgomery, and Alice Martin, the United States attorney in Birmingham — would "take care" of Mr. Siegelman. Mr. Canary also said, according to Ms. Simpson, that Mr. Rove was involved.

Georgia Thompson is a Wisconsin state employee wrongly put in jail on corruption charges by the Milwaukee United States attorney. Despite strong evidence that she was innocent, Steven Biskupic prosecuted Ms. Thompson for corruption and got a conviction. The news hit shortly before a bitterly fought governor’s race, and opponents of James Doyle, the state’s Democratic governor, used the conviction to attack Mr. Doyle as corrupt. An appeals court later freed Ms. Thompson, but only after she had spent months in jail.

The committee has requested documents from the Justice Department about those two cases. It should also look into the investigation of Senator Robert Menendez by Christopher Christie, the United States attorney for New Jersey. Based on the facts that have come out, Mr. Menendez appears to have done nothing wrong. But word of the investigation leaked out in the fall of 2006, damaging Mr. Menendez’s reputation just when Republicans were trying to defeat him. It is unclear whose idea it was to conduct an investigation so close to the election of Mr. Menendez’s lease of a building he had sold years earlier.

The Bush administration is throwing roadblocks in Congress’s way. It missed a deadline for turning over documents, and it has refused to make some of the principal actors available to testify. The Judiciary Committee should not be deterred. If Americans are being put in jail for political reasons, Congress must put a stop to it.

Thursday, August 02, 2007

Guest Shot: The Presence of Malice

This Op-Ed was originally published in the New York Times on August 2, 2007.

South Hadley, Mass.

LAST week, Judge Nancy Gertner of the Federal District Court in Boston awarded more than $100 million to four men whom the F.B.I. framed for the 1965 murder of Edward Deegan, a local gangster. It was compensation for the 30 years the men spent behind bars while agents withheld evidence that would have cleared them and put the real killer — a valuable F.B.I. informant, by the name of Vincent Flemmi — in prison.

Most coverage of the story described it as a bizarre exception in the history of law enforcement. Unfortunately, this kind of behavior by those whose sworn duty it is to uphold the law is all too common. In state courts, where most death sentences are handed down, it occurs regularly.

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.

Mistakes are good-faith errors — like taking the wrong exit off the highway, or dialing the wrong telephone number. There is no malice behind them. However, when officers of the court conspire to convict a defendant of first-degree murder and send him to death row, they are doing much more than making an innocent mistake or error. They are breaking the law.

Perhaps this explains why, even when a manifestly innocent man is about to be executed, a prosecutor can be dead set against reopening an old case. Since so many wrongful convictions result from official malicious behavior, prosecutors, policemen, witnesses or even jurors and judges could themselves face jail time for breaking the law in obtaining an unlawful conviction.

Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

In the interest of fairness, it is important to note that those who are exonerated are not necessarily innocent of the crimes that sent them to death row. They have simply had their death sentences set aside because of errors that led to convictions, usually involving the intentional violation of their constitutional right to a fair and impartial trial. Very seldom does the court go the next step and actually declare them innocent.

In addition, some of these unlawful convictions resulted from criminal justice officials trying to do the right thing. (A police officer, say, plants evidence on a defendant he is convinced is guilty, fearing that the defendant will escape punishment otherwise.) In cases like these, officers or prosecutors have been known to “frame a guilty man.”

The malicious or even well-intentioned manipulation of murder cases by prosecutors and the police underscores why it’s important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is “conclusive scientific evidence” of guilt, as Mitt Romney, the presidential candidate and former governor of Massachusetts has proposed, we will still not eliminate the problem of wrongful convictions. The best trained and most honest forensic scientists can only examine the evidence presented to them; they cannot be expected to determine if that evidence has been planted, switched or withheld from the defense.

The cause of malicious unlawful convictions doesn’t rest solely in the imperfect workings of our criminal justice system — if it did we might be able to remedy most of it. A crucial part of the problem rests in the hearts and souls of those whose job it is to uphold the law. That’s why even the most careful strictures on death penalty cases could fail to prevent the execution of innocent people — and why we would do well to be more vigilant and specific in articulating the causes for overturning an unlawful conviction.

Richard Moran is a professor of sociology and criminology at Mount Holyoke College.

Must-See TV: Dateline NBC To Broadcast 2-Hour Documentary About Two Men Claiming Innocence, on Sunday, August 5th, 7p.m to 9 p.m. (EDT and PDT)

(New York) – July 26, 2007 – As a controversial retrial looms for David Lemus, a man who served 15 years in prison before having his murder conviction overturned in 2005, NBC News' Peacock Productions presents its first feature length documentary film about his case, "In the Shadow of Justice." The two-hour broadcast, airing on Sunday, Aug. 5 (7:00 p.m. ET), advances Dateline's groundbreaking 2005 investigative report on the 1990 murder of Palladium nightclub bouncer, Markus Peterson, and immerses viewers in a case that made headlines as it unfolded.

While The Manhattan District Attorney's office insists Lemus is guilty of the murder, and is retrying him, they declined to comment on the film. However, the 23-year veteran Assistant District Attorney Daniel Bibb who argued at a hearing to keep Lemus and Olmedo Hidalgo (the other man convicted in the murder) in prison is now speaking out for the first time in the film. He says as he led a re-investigation of the case, he became convinced the men were innocent. He has since left the DA's office, saying he was tortured by the fact that his superiors, in his account, forced him to argue to keep two innocent men in prison.

Bibb says, "The people making the decisions (within the DA's office) wanted to go to the hearing." When pressed specifically about District Attorney Morganthau's involvement in the decision-making process, Bibb replies, "…He was aware of what was going on."

NBC's interest in the case began in 2002 when Dateline producers were granted rare access to Bronx homicide detectives Bobby Addolorato and John Schwartz as they re-investigated the case. Our cameras were rolling as the detectives discovered astonishing new evidence suggesting that Lemus and Hidalgo might actually be innocent. The detectives also believe they uncovered documents that suggest the DA's office buried evidence that proved Lemus and Hidalgo were innocent.

After the Dateline report aired, not only were the two men exonerated and able to go home to live with their families for the first time in 15 years, but weeks later a man who many believed to be the real shooter was arrested. The man, Thomas "Spanky" Morales, had appeared in the broadcast after NBC producers tracked him down. "Spanky," who spent nearly 18 months in jail awaiting trial for this murder, is now a free man after a judge threw out his case saying law enforcement had the obligation to arrest him years ago based on the ample evidence it possessed pointing to him as the shooter.

In the end, "In the Shadow of Justice" documents how the case changed many lives forever. For detectives Addolorato and Schwartz, it was a journey of conscience and confrontation that they say ended their careers. The film includes exclusive interviews with defendants Lemus and Hildago, eyewitnesses to the crime, family members, attorneys, the foreperson of the jury, Carol Kramer, who voted to convict the men and then asked for their release, and Thomas "Spanky" Morales.

David Corvo is the executive producer; Adam Gorfain is the senior producer; Daniel Slepian is the producer; Michael Nardi is the field producer; and Robert O. Allen is the editor.