Thursday, July 26, 2007

Guest Shot: DNA Tests Alone will not Protect the Innocent

The following editorial was originally published in the Newark, NJ Star-Ledger.

by John Holdridge

DNA testing has produced its 205th exoneration nationwide of an innocent prisoner, a number that includes 15 inmates imprisoned on death row. The "lucky" prisoner is Byron Halsey, who was proven innocent by DNA after allegedly confessing to the sexual assault and murders of two young children in Plainfield, narrowly avoiding the death penalty and spending some 20 years in state prison for crimes he did not commit. Halsey is the fifth New Jersey prisoner exonerated through DNA.

But while we all breathe a sigh of relief when we hear that an innocent person has been prevented from spending one more unjust day behind bars, it is critical to remember that DNA evidence is available in only a small percentage of criminal cases. It is a serious mistake to believe that DNA testing is adequate protection for the wrongly accused or convicted, including those sentenced to die.

The 205 exonerations throughout the country reveal serious and widespread problems with our nation's criminal justice system. The Innocence Project, the group primarily responsible for the exonerations, has discovered in its cases abysmal legal representation, including overburdened and underfunded defense attorneys; faulty eyewitness identification, the greatest cause of wrongful convictions, playing a role in more than 75 percent of convictions overturned through DNA testing; bogus "scientific" forensic identification, including hair analysis, bite mark evidence, ballistics, blood typing and others; prosecutorial misconduct, including failing to disclose exculpatory evidence to the defense; lying informants and jailhouse snitches, who were involved in more than 15 percent of the DNA exoneration cases, and false confessions.

These deficiencies exist in equal percentages in all criminal cases. They are not any more prevalent in cases with DNA evidence than without. Yet in the vast majority of criminal cases, there is no DNA evidence to test and possibly exonerate innocent prisoners. The best estimate is that DNA evidence exists in only 10 to 15 percent of all murder cases.

The high number of wrongly convicted prisoners exonerated by DNA testing is just the tip of the iceberg of innocent lives being spent behind bars and even sent to death chambers. These stories must serve as a stark reminder of additional measures we must take to increase the accuracy of our criminal justice system across the nation. To name just some of the most important, it is critical that we:

Improve the poor quality of legal representation received by criminal defendants, including by reducing the caseloads of public defenders and providing them with sufficient resources.

Insist upon fair eyewitness identification procedures to reduce the number of misidentifications. In 2001, New Jersey became the first state to require fairer eyewitness identification procedures. It is now one of only three states to do so, having been joined by North Carolina and Wisconsin.

Have courts require that all "scientific" evidence introduced at a trial meet the demanding requirements of true science.

Severely sanction prosecutors who engage in misconduct. The disbarment of Durham, N.C., prosecutor Mike Nifong because he failed to disclose exculpatory evidence to the wealthy, white Duke lacrosse players was a notable - and exceedingly rare - example of such sanctioning.

Either bar the testimony of jailhouse snitches, particularly those who are granted "favors" in exchange for the testimony, or instruct jurors to view such testimony with great caution.

Require that confessions be recorded and allow defendants to present to their juries testimony by experts in false confessions. The New Jersey Supreme Court has ordered that interrogations be recorded in all homicide cases beginning in 2006 - too late for Halsey and virtually all other prisoners incarcerated in the state. New Jersey is one of only seven states that require recordings of interrogations.

DNA testing alone does not - and cannot - protect the innocent. Our criminal justice system is in serious need of repair. We are morally obliged to apply the lessons learned from DNA and repair the system.

Gues Shot: Tunnel Vision

The following editorial was originally published in the New York Times on July 15, 2007.

Everyone knew Jeffrey Deskovic was guilty.
Everyone was wrong, but that did not prevent his being convicted in 1990 for the murder of a 15-year-old classmate, and his being wrongfully imprisoned for the next 16 years.

A report released this month by the Westchester district attorney, Janet DiFiore, details the tragic pileup of mistakes, carelessness, incompetence and ''tunnel vision'' that robbed Mr. Deskovic, now 33, of half his life. A reading of the report, available at, gives a chilling view of the horrible and multiple ways the justice system can malfunction.

It prompts respect for the Innocence Project, which fought for Mr. Deskovic's freedom, and admiration for Ms. DiFiore, who undid the wrongs of two predecessors with her willingness to examine the DNA evidence that exonerated Mr. Deskovic. Ms. DiFiore also deserves much credit for commissioning the report, prepared by two retired judges, a former prosecutor and a legal aid lawyer, whose analysis of this case is vividly clear and deeply unsettling.

The report could be a primer for the Legislature, which should seriously consider the recommendations when it reconvenes this month.

The list of misdeeds is long, but one common thread is what the report called ''tunnel vision,'' the narrowing of outlook that sealed Mr. Deskovic's fate once the powers that be, from the police to prosecutors, became convinced that he was guilty.

Perhaps the most distressing part of Mr. Deskovic's long battle for vindication was his repeated inability to persuade prosecutors to compare DNA from the crime scene with samples in state and federal databases.

The judge in the case praised Ms. DiFiore's office for its open-mindedness in granting Mr. Deskovic's simple request to honor what should be a defendant's basic right. The other central recommendations in the report include a requirement to videotape interrogations and the creation of a state ''commission of inquiry'' to examine the errors and misdeeds that lead to wrongful convictions, and to recommend steps to prevent them.

The mandatory videotaping of interrogations is a matter of particular importance. Mr. Deskovic was an emotionally vulnerable and confused suspect, a teenager at that, and under heavy pressure he falsely confessed to the crime. Taped interrogations would help to improve questioning tactics -- beyond discouraging outright abuses by overaggressive police officers -- and help jurors to identify false confessions.

There is one more recommendation for action that is implicit in the report. It would not come from Albany, but from the host of individuals -- from detectives to Ms. DiFiore's immediate predecessors -- who were active participants in a gross miscarriage of justice.

The report recounts the moment last November when Westchester's first deputy district attorney told the court that the case was being dropped because Mr. Deskovic was ''actually innocent.'' The prosecutor went on to offer ''the most sincere apologies we can muster on behalf of the Westchester County District Attorney's Office and the Peekskill police.''

The report said that Mr. Deskovic expressed appreciation for the gesture. It also said it was the first public apology he had received.

Saturday, July 14, 2007

Guest Shot: Despite conviction, DNA retest apt in elderly woman's murder

by Elmer Smith
Originally published in the Philadelphia Daily News on July10, 2007

IN THE US VS. THEM world of prosecutors and perpetrators, we have a rooting interest in seeing the full weight of the law slam down on the perps.

I get that. I also understand how going after someone as depraved as the killer of Louise Talley becomes more of an obsession than an objective. That is precisely the mindset I want the district attorney's office to march into battle with.

Talley, a 77-year-old Nicetown woman, was raped and stabbed to death in her bedroom in 1991. Anthony Wright, then 22 and an admitted drug addict, signed a statement confessing that he was the killer. A jury, noting the confession and the testimony of witnesses who placed him near the scene of the crime, convicted him of first-degree murder 14 years ago.

But the D.A.'s open-and-shut case is threatening to come open again. Wright, represented by the Innocence Project, is scheduled to be in Superior Court today seeking DNA testing of blood and semen stains recovered at the time of his arrest. DNA tests 16 years ago proved inconclusive.

The D.A.'s office is vigorously opposing new DNA testing. I want to believe it is fighting to keep DNA evidence out in the interest of justice.

Except that, for the life of me, I can't see how justice is served by suppressing a test result that could point to another perpetrator.

If Louise Talley's murderer is still out there, I want my D.A.'s office to go after him with the same fervor that led to Anthony Wright's conviction.

Instead, the D.A.'s office seems more interested in holding onto Wright than it is in being absolutely sure the crime is solved. That worries me.

The D.A.'s brief bases its opposition on procedural points that may make sense in the arcane proceedings of a courtroom. But they seem disconnected from the essential question of guilt and innocence.

Their key point is that since Wright's confession was ruled valid after he tried to rescind it at trial, "he is barred from asserting his innocence."

But the Innocence Project has proved the actual innocence of more than 50 defendants who had signed confessions to the crimes they were falsely convicted of, three of them in Pennsylvania alone.

The D.A.'s office acknowledges this. "There is no doubt that innocent voluntary confessors, while they are rare, are no exception to the truism that anything is possible," the D.A. concedes in the brief.

But the D.A. goes on to argue that the "law of case doctrine" bars Wright from "asserting innocence" once a judge has ruled that the confession was valid.

In an even-less-principled argument, the D.A. asserts that the DNA request was not filed in "a timely manner." Therefore, the D.A. concludes, "there is no reason for the court to address the merits."

But the Pennsylvania law, which allows for post-conviction DNA testing, sets no time limits. Besides, I never want to hear the D.A. argue against having a court "address the merits" of any case.

The D.A. argues that the trial record contains "overwhelming evidence of guilt." I agree.

The signed confession and the fact that Wright was implicated by people who had nothing to gain by fingering him, as well as by co-conspirators who may have been out to cut the best deal for themselves, seem to make an airtight case against Wright.

But I would have thought that about Nicholas Yarris, Bruce Godschalk and Barry Laughman. All were convicted in "open and shut" cases. Yarris, who signed a confession, was convicted and sentenced to die.

In all three of those cases and 200 others in which the Innocence Project has fought for and won DNA tests, the testing proved they weren't the murderers.

Even more important, DNA tests in half those cases also identified the actual perpetrators, several of whom have been convicted on the same DNA evidence.

If new testing proves that we got the right man, then DNA will have done its job. If it proves that someone else murdered Louise Talley, we need to know who that is and how we can convict him.

That's really where our rooting interest lies.

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Guest Shot: Doing time for no crime

by Arthur Carmona
Originally published in the Los Angeles Times on July 13, 2007

A young man freed after being wrongly imprisoned argues for three remedies.

ONE WEEK after my 16th birthday, I was arrested and charged with crimes I did not commit. I remained behind bars in a life unsuitable for any innocent person. After I served nearly three years of a 17-year sentence, the real facts of my case began to emerge and a judge let me go free. My life, however, will never be the same, and I am determined to change the laws that make it so easy for innocent people to be convicted.

On Feb. 12, 1998, I decided to visit a friend. While I was walking down a residential street, a Costa Mesa police officer stopped me at gunpoint. I was handcuffed and surrounded by other police officers with guns drawn. One officer forced a baseball cap onto my head and made me stand on the curb. I did not know it at the time, but witnesses from a robbery had been brought to identify me in what is known as an "in-field show-up," a procedure that is highly likely to produce mistaken identifications. I was arrested in connection with 13 strong-arm robberies.

My mother was able to gather evidence proving that her 15-year-old son was in school during 11 of the robberies. But we had no evidence to prove that, at 2 a.m. on a school night, I was home asleep while someone robbed a Denny's restaurant, and we had no proof that I was home baby-sitting my 11-year-old sister during the time a juice bar in another city was being robbed.

The getaway driver, a parolee with a long criminal record, admitted being involved in the robberies. He first told police he did not know me and that I was not involved. Then the Orange County district attorney offered him a sentence of two years if he would say I was. He took the plea bargain and his story changed; he was freed from prison before I was.

The court found me guilty of two strong-arm robberies, and I was facing 35 years for crimes I took no part in. The judge sentenced me to 12 years in state prison. I was 16, with no criminal record. I would have been eligible for parole in nine years, with two strikes to my name, one strike away from a life term.

Two and a half years later, just before my hearing on getting a new trial based on a writ of habeas corpus, the Orange County district attorney offered me a deal, and after three years of suffering beatings, threats and degradation in a series of juvenile and state prisons, I accepted it. I signed a "stipulation" — a piece of paper stating that I would not sue any city, county or state prosecutors. Orange County Superior Court Judge Everett Dickey ordered me released and my felonies vacated.

Although I could finally go home, I could not go back to my old life. While I was behind bars, my high school class graduated without me. I was no longer the fun-loving teenager I once was. The criminal justice system took my innocence from me. I have not received any compensation, or even an apology. And the two felonies remain on my record, despite the judge's order and the intervention last year of then-Atty. Gen. Bill Lockyer.

Now, I am fighting to prevent wrongful convictions and to help innocent people still in prison. I am also supporting a series of state bills that would make it harder for what happened to me to happen to other people. I have traveled to Sacramento in the last two years to urge the Legislature to pass legislation that would help prevent wrongful convictions. Two of these bills passed last year, only to be vetoed by the governor. This year, three bills are being considered.

Senate Bill 756, sponsored by Mark Ridley-Thomas (D-Los Angeles), would require the state Department of Justice to develop new guidelines for eyewitness identification procedures. For example, guidelines in other states limit the use of in-field show-ups like the one that led to my wrongful conviction.

Senate Bill 511, sponsored by Elaine Alquist (D-Santa Clara), would require recording of the entire interrogation, including the Miranda warning, in cases of violent felonies. Electronic recording of interrogations would not only help end false confessions but also discourage police detectives from lying during interrogations — as they did in my case by claiming to have videotaped evidence of me.

Senate Bill 609, sponsored by Majority Leader Gloria Romero (D-Los Angeles), would prevent convictions based on uncorroborated testimony by jailhouse snitches.

The Legislature should pass all three bills, and the governor should sign them. These reforms are urgently needed to prevent wrongful and unjust incarcerations.

Prison is no place for an innocent man, let alone an innocent kid.

Friday, July 13, 2007

Guest Shot: 'Fallible' legal system must avoid injustice

Originally published in the Atlanta Journal Constitution on: 07/11/07

The release of 124 death row inmates in the United States has made clear that the administration of the death penalty is not infallible. When there are important questions about whether someone facing execution is actually guilty, those questions must be examined and resolved by the courts or, as a last resort, by the executive branch.

Troy Anthony Davis has been on death row in Georgia for more than 15 years for the murder of a police officer, and related violent crimes. I was the director of the FBI under Presidents Reagan, Bush and Clinton, and I believe that there is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders.

That being said, we must be convinced that the right person has been convicted. Serious questions have been raised about Davis' guilt. The murder weapon was never found, and other important physical evidence was missing. Key witnesses made inconsistent statements, and seven out of the nine non-police witnesses have now recanted or changed their original testimony, some stating that they had been pressured by the police to implicate Davis. One of the two witnesses who has not recanted his testimony has now been implicated as the real murderer by two witnesses at trial and four new witnesses. In addition, concerns have been raised about the conduct of the police and prosecutors.

Finally, it appears that the quality of legal representation Davis received during trial was, by his own lawyer's account, seriously deficient. While Davis' case proceeded through the courts, the budget of the Georgia Resource Center, which represented him, was dramatically cut. A lawyer from the Resource Center stated in an affidavit that "We were simply trying to avert total disaster rather than provide any kind of active or effective representation."

The courts considering Davis' case properly administered procedural rules that prevent those courts from considering claims that were not raised at the right time or in the right manner. However, these rules can be too restrictive and can prevent the courts from dispensing justice. They can stop the courts from hearing even claims of innocence, such as in Davis' case. They can prevent the courts from hearing these claims even if the reason they were not properly raised was because of an overburdened lawyer with insufficient resources, such as in Davis' case. As a result of these procedural obstacles, no court has examined the claims Davis' current legal team has raised.

I am a member of the Constitution Project's bipartisan Death Penalty Committee, which includes supporters of the death penalty, like me, as well as opponents. We condemned the kinds of procedural barriers that prevented the courts from addressing the merits of Davis' case, and we recommended that they be eliminated. Second, we insisted that capital defendants have competent lawyers with adequate resources.

Former Chief Justice William Rehnquist once wrote that the judicial system, "like the human beings who administer it, is fallible." I agree. Especially when it comes to a human life, the courts should always be able to examine claims of innocence.

But the matter is no longer before the courts, since the U.S. Supreme Court recently decided not to hear Davis' case.

It would be intolerable to execute an innocent man. It would be equally intolerable to execute a man without his claims of innocence ever being considered by the courts or by the executive.

Georgia's Board of Pardons and Paroles can consider the issues raised by Davis. I urge that body to immediately do so and to grant clemency.

Wednesday, July 04, 2007

In memory of Evan Zimmerman

by Mike “Pie” Piaskowski – Green Bay, WI

Yesterday I received the sad news that a fellow Wisconsin exoneree and good friend of mine by the name of Evan Zimmerman passed away of cancer. He was only 61.

Evan was incarcerated for more than three years after being convicted of first-degree intentional homicide in the strangulation death of his ex-lady friend in 2001. Kathy Thompson, 38, had been found dead in February 2000 in Eau Claire, WI. Ev, a former police officer himself, was arrested about a year later and was eventually convicted of the unsolved murder.

With the help of the Wisconsin Innocence Project, Ev successfully appealed on the grounds of ineffective assistance of counsel and won the right to a retrial. In 2005 the judge ruled that certain unreliable testimony could not be used at the new trial. Without the tainted evidence and nothing else to rely on the DA dropped all charges. Ev steadfastly denied any involvement in her death – maintaining his innocence from the very beginning.

After his release from prison Ev was forced to move from Eau Claire to LaCrosse, WI after bringing a wrongful-conviction lawsuit against the Eau Claire police department. Sadly, in 2006 the federal court dismissed the suit.

In 2005 the A&E channel put together a documentary about Evan’s case by the name of "Facing Life - The Retrial of Evan Zimmerman". It was aired in April 2006.

Ev was a wonderful person and will be missed by many. Let us pray that we can all work together, in Evan's name, as well as all of the exonerees throughout the country, to help eliminate these and all other forms of injustice created by our justice system.