Sunday, November 16, 2008

Politics as usual in Virginia Governor’s Mansion

The voices of 26 retired FBI agents have joined the chorus of law enforcement, prosecutorial and judicial professionals urging Governor Timothy Kaine (D) to pardon the Norfolk Four—sailors Danial J. Williams, Joseph J. Dick Jr., Derek E. Tice and Eric C. Wilson—convicted of the 1997 rape and murder of Michelle Bosko in Norfolk, Virginia. The crime was committed by Omar Ballard, who acted alone. Only Ballard’s DNA was found at the crime scene. His confession accurately mirrors the evidence. The “confessions” obtained from Williams, Dick, Tice and Wilson were coerced and false, wrung from them by local police under threat of the death penalty.

The clemency applications of the Norfolk Four actually landed on the desk of former Virginia Governor Mark Warner (D) in 2005. It is customary for outgoing governors in Virginia (which holds off-year elections for top state posts) to act on pardon applications prior to leaving office. The fact that Governor Warner did nothing signaled two things: he had ambitions for some other high office, and he thinks the people of Virginia are too stupid to understand what four former Virginia Attorneys General and numerous others were able to conclude, that these four men are innocent.

One could say his ploy worked, since Warner was just elected to the U.S. Senate, to fill the vacancy left by the retirement of Senator John Warner (no relation to Mark Warner). Governor Tim Kaine presumably has similar aspirations, since he, too, has let the Norfolk Four application languish. The FBI agents sent their letter supporting the pardon to Governor Kaine in July of 2008. After months passed without as much as an acknowledgement, they called a press conference and released the text of their letter to the public on November 10, 2008. In a gesture reflecting gubernatorial arrogance, an aide confirmed that Governor Kaine received the letter, but there was no further comment.

This imperial “fiddle while Rome burns” inaction follows a fine tradition in Virginia. Repeated DNA tests proved that Earl Washington was innocent of the rape and murder of Rebecca Williams in Culpeper, Virginia in 1982. Yet former Governor L. Douglas Wilder (D) waited until the last hour of his governorship in 1994 to commute Washington’s death sentence, changing it to life in prison without parole. Governor Wilder had bigger plans, a run for the presidency, and he couldn’t afford to be seen as “soft on crime” by releasing an innocent man from prison.

It fell to Governor Jim Gilmore (R) to do the right thing by Earl Washington, and he didn’t wait until the end of his term in office to do so. On October 2, 2000, Governor Gilmore announced: "In my judgment, a jury afforded the benefit of the DNA evidence and analysis available to me today would have reached a different conclusion regarding the guilt of Earl Washington. Upon careful deliberation and review of all of the evidence, as well as the circumstances of this matter, I have decided it is just and appropriate to intervene in the judicial process by granting Earl Washington an absolute pardon for the capital murder and rape of Rebecca Williams.”

When Barack Obama won the U.S presidential election—and a majority of Virginians voted for him—Governor Tim Kaine announced jubilantly that his victory marked “the end of Ol’ Virginny.” Really, Governor Kaine? Prove it. For just a moment, stop following lockstep in the paths of your Democratic predecessors, set aside your own ambitions and do the right thing. Grow a spine. Pardon the Norfolk Four.

Saturday, November 15, 2008

Guest Shot: Lawyers call on law enforcement to stop harassment

Truth in Justice Files Editor's Note: The following open letter to law enforcement in Taylor County, Wisconsin was originally published in the Medford Star News on November 13, 2008. While the actions of law enforcement in a specific case, in a particular location, are described, this type of "tunnelvision" conduct is standard operating procedure in a significant percentage of cases that result in wrongful convictions.

Lawyers call on law enforcement to stop harassment

A tragedy occurred in Taylor County back in January of this year. A county resident (Ms. Jean Viken) was apparently abducted from her home. A few months later, her remains were found in another county, and the implication was that a homicide had taken place. In fact, at a news conference on May 13, 2008, the Taylor County Sheriff gave a prepared statement and then took questions. In his statement, the sheriff indicated that there were "several persons of interest." He would not comment any further as to who those persons were.

Since the disappearance, the sheriff's department has focused solely upon a couple of individuals, to the apparent exclusion of all others. The "investigation" has entailed contacting a number of individuals and questioning them about these particular "persons of interest." In fact, the investigation has left no other conclusion as to who the department believed to be the perpetrators, and it appears to be a deliberate course of conduct on the part of the department.

All during the course of this "investigation" the "persons of interest" have been subjected to what appears to be a pattern of near harassment from officials, and absolute harassment from a number of civilian individuals as well (these individuals are being identified by independent means). These "persons of interest" have had great difficulty at work, and at their business, and the conduct has caused them to suffer not only emotionally, but economically, as well. They and their families have been caused what may be irreparable damage because of the seemingly inept handling of the situation.

These "persons of interest" hired us to represent them because of the apparent harassment they were, and still are, facing. During the course of becoming familiar with the circumstances surrounding the tragedy, and its aftermath, it has become apparent to us that the "investigation" has become so compromised that the heinous crime may never be solved; the real culprit(s) may walk away with impunity.

The investigators have been nothing but openly hostile to our clients, have called them names, and have been as sarcastic as possible in the hopes of furthering their "investigation." They have belittled our clients, chastising them for "non-cooperation," and all the while their mode of conduct has been startlingly lacking in anything that could be called conducive to any sort of cooperation.

The sheriff has failed to respond to communication sent to him inquiring about the re-entry to the homestead of one of the clients. This place had been listed as out of bounds due to forensic investigation, but the site was compromised from the very beginning, and continued to be compromised as certain civilian(s) came on the premises as they apparently wished. There have been civilians on and about the premises from the start. There can be no formal excuse for not allowing re-entry onto the premises; there can be no formal excuse for not even a courtesy reply to our communication; any suggestion by law enforcement that they still need the premises for investigatory purposes is surely either a bad "joke" or something perhaps more clandestine.

One of our clients was basically arrested from a place of business and brought in for fingerprints. The way this was accomplished was uncalled for and leads one to wonder why it was necessary to do so. Also, this client had his house smashed in during a warrant search that was conveniently done just after he had left the premises. The damage that occurred (all documented) was significant. A simple request would have allowed entry without creating this damage. But, apparently, that would not have gotten across any "message" officials wanted to convey.

In closing, we urge the citizens of Taylor County to begin to demand that a true investigation be initiated and bring in outside help. We suggest this due to the apparent inability of the local agency to be able to handle the matter itself. This needs to be placed on the correct path so the true culprits can be found. There needs to be an end to an apparent pattern of harassment to a couple of innocents.

— Lester H. Liptak, attorney for Duane Viken, Mark R. Mullen, attorney for Allen Viken

Tuesday, November 11, 2008

Guest Shot: Do Convicts Have a Constitutional Right to Access Crime-Scene DNA?

The following commentary was originally published at on November 10, 2008

Do Convicts Have a Constitutional Right to Access Crime-Scene DNA? The U.S. Supreme Court Considers the Question

Monday, Nov. 10, 2008

The U.S. Supreme Court recently agreed to hear an appeal in a criminal case involving DNA, District Attorney's Office v. Osborne. William G. Osborne - a man who, fourteen years ago, was convicted of kidnapping and sexual assault in Alaska - argues in a civil rights lawsuit against the District Attorney's office that the State must now provide him with physical evidence from the crime scene, so that he can perform a DNA analysis that would not have been technologically possible at the time of his trial.

In an overwhelming number of jurisdictions, convicts are entitled to access such evidence, but Alaska is one of six states that do not recognize this right. The Supreme Court will now consider whether the U.S. Constitution guarantees any degree of post-conviction access (at least where, as in this case, the convict is willing to foot the bill for DNA testing and the evidence is still in storage).

In this column, I will consider a slightly different question, but one that is related to what the Court will consider: Why might a State want to prevent a convict from gaining access to forensic evidence for DNA testing?

It is important to ask this question because if there is absolutely no reason for such resistance, then the State's refusal might be characterized under the law as having no "rational basis." Although the "rational basis" standard is quite lenient, the Supreme Court has repeatedly held that a state action or law that truly has no rationale at all violates the Due Process of the Fourteenth Amendment. How can we tell whether a rational basis exists? According to the Court, the Due Process Clause requires that all state conduct bear some connection to a legitimate governmental objective. In this column, I will examine whether any such connection exists here.

One Possible Legitimate Government Objective: Closure

One interest that the government may claim, after the conclusion of a criminal case, is in closure. The defendant benefitted from the presumption of innocence up until the moment at which a jury found him guilty beyond a reasonable doubt. At that point, the presumption - appropriately and decisively - shifted towards guilt.

Decisions about a convict's future are thus rightly made on the basis of the premise that he is guilty. For instance, he may be incarcerated as a punishment for his crime, on the assumption that he in fact committed it. He also may be examined by a parole board and judged "unrepentant" for his failure to take responsibility for his actions, a judgment that would be odd in the case of a person who is either innocent or presumptively so. Finally, he has only limited opportunities to challenge his conviction, and the opportunities he does have focus primarily on claims of procedural error (the admission of inadmissible evidence, the failure of his attorney to represent him adequately, race discrimination in the selection of his jury) rather than on claims that he might actually be innocent.

Given this focus on procedure - specifically, the adequacy of the convict's trial leading up to his conviction and sentence - an opportunity to re-examine physical evidence that was available at the time of trial might seem an improper attempt to re-litigate the question of innocence, especially in the absence of any new reason to doubt the defendant's guilt.

The sole purpose of examining DNA evidence, after all, is to attempt - again - to rebut the government's assertions that he is guilty of the crime for which he has been convicted. To allow the convict (and other convicts) access to such evidence is to acknowledge that there is a non-trivial chance that he might be innocent, and that acknowledgement is at least in some tension with the presumption of guilt that prevails.

Indeed, in the case before the Supreme Court, Osborne, who was convicted of a brutal rape (which could easily have been a murder if the victim had not survived being beaten with an axe handle, shot at, and left for dead after having been raped), has already confessed in detail to his role in the crime, in a written application for parole and at a subsequent parole hearing, at which he indicated that he had also confessed the truth to his attorney and to his mother.

The difficulty with this closure argument, however, is that in the case of DNA evidence, convicts who, like Osborne, were convicted years ago, are asking to examine evidence to which they truly did not have access at trial, given the state of technology at the time. As with the discovery, post-conviction, of another dead body relevant to a murder case, it is quite possible that if DNA evidence had been available before or during trial, the prosecution or defense might, respectively, have conducted themselves quite differently. The prosecution might have ruled out the defendant's guilt or the defendant might have offered powerfully exculpatory evidence. Self-serving "confessions" might not have been offered.

It may turn out, of course, that the DNA in Osborne's case - or in any given case - proves incriminating rather than exculpatory. Either way, though, the evidence - consisting of semen from the condom and hair samples found at the crime scene, which can now be subjected to very precise DNA probing - is highly relevant to guilt. Yet neither party was in a position to examine this evidence at the time of trial.

Rather than preclude closure, in other words, an examination of DNA evidence - at the convict's own expense - could potentially provide closure. And it could provide the kind of closure that ought to be appealing from everyone's perspective - proof that the convict was in fact involved in the crime for which he was convicted or, perhaps, proof that he could not have been so involved. Both the prosecuting attorney and the defense attorney ought to find the prospect of such closure desirable.

Another Possible Government Objective: Avoiding The Slippery Slope

The government, however, has another potentially legitimate objective to assert here. In addition to seeking factual closure following a conviction, the government might also seek the sort of closure that people derive from the expiration of a statute of limitations. That is, the government might take the view that if it can be required to make physical evidence available to convicts for newly-possible DNA testing, then it could also be required to preserve evidence long after it might otherwise have disposed of it, just in case new technologies develop that might allow for the gleaning of facts that were previously unavailable. Such a requirement, in turn, would entail storage and record-keeping that could prove very expensive.

As it happens, in Osborne's particular case, the evidence at issue is already available, but if a convict were understood to have a "right" (as opposed to the option of making a request that could lawfully be denied) to such evidence, then it might appear inappropriate for the government to destroy physical evidence that might some day yield new information about the convict's actual guilt or innocence.

Could a constitutional right on the part of the defendant properly turn on the storage practices of an individual police department or prosecutor's office? Mightn't any disposal of evidence, in view of such a right, be read as obstruction of justice?

On the assumption - a legally legitimate assumption - that a convicted person truly did commit the offenses at issue, the Alaska D.A.'s office could argue that a robust right of access to trial evidence for re-analysis would be costly, and that the cost would not be justified, to the extent that the police, prosecutors, and jurors truly do provide a fair process to a criminal defendant. The Alaska D.A. could also argue that a right that turned instead on whether the government had in fact happened to store the evidence would, at best, be arbitrary and, at worst, could motivate law enforcement and prosecutors to dispose of evidence quickly and thus avoid the need to re-litigate guilt and innocence after a successful verdict.

The Power of Denial

In an opinion affirming that Osborne does in fact have a right to access the evidence he seeks, the U.S. Court of Appeals for the Ninth Circuit found the D.A.'s resistance perplexing. The evidence - a condom that the prosecutor contended at trial contained semen from the rape, and pubic hair found on the victim's clothing (and introduced by the prosecutor against Osborne as well) - could help establish conclusively that the defendant is guilty. And if DNA testing were instead to call Osborne's guilt into serious question, it could generate a biological profile that might help identify the actual perpetrator. In this case, at least, a DNA test appears to represent a win-win proposition that - to the puzzlement of the Ninth Circuit panel - the State would foreclose "by its simple refusal to open the evidence locker." Even if it is not, in other words, surprising that the Alaska D.A.'s office would want to avoid creation of a potentially generalizable right, it is peculiar that it refused Osborne the evidence he sought in the first place.

Yet it should not be entirely perplexing that prosecutors would resist coming face-to-face with evidence that might establish that they have - albeit unwittingly - been party to a grave miscarriage of justice: the long-term incarceration of an utterly innocent person. It is one thing, in other words, to know in the abstract that some people have been convicted and subsequently shown to be innocent on the basis of a previously unavailable DNA test. It is quite another to learn that you have made a mistake and that your witnesses misidentified an innocent man as the perpetrator of unspeakable crimes, thus leading to his wrongful incarceration.

Indeed, if such evidence were to come to light - even assuming you did not concern yourself with the public reaction to the disclosure - you might well begin to doubt every case you bring, including the many cases in which there neither was, nor ever will be, DNA evidence that could "expose" the truth. Paraphrasing the words of Jack Nicholson in "A Few Good Men," prosecutors may be unable to "handle" the truth that DNA testing might unearth in particular cases.

An Easy Case That Is Hard to Call

I am not prepared to predict that the Supreme Court will affirm the Ninth Circuit in this case - although it surely should. For one thing, Justice Scalia is very likely to vote to reverse. He has shown hostility (expressed in Herrera v. Collins) to "actual innocence" claims in general, and here we have a claim that is a mere preparatory step to an "actual innocence" claim - if the DNA test exculpates Osborne, he can then bring a habeas corpus petition arguing for his release.

Given their usual orientation toward the State's position in criminal law cases, Chief Justice Roberts and Justices Thomas and Alito are likely to go along with Justice Scalia. Justice Kennedy is less predictable, so the result - as in so many cases now before the Court - will probably turn on how he sees things.

Notwithstanding the difficulty of predicting its outcome, however, I will venture to say that this is (or ought to be) an easy win for the petitioner. Whatever might happen in future cases, the evidence at issue here is unquestionably available. The police department, in fact, has specifically agreed to provide the evidence if the D.A.'s office instructs it to do so. The prosecutor introduced the evidence at issue at the trial and presented the results of a rudimentary DNA test in support of conviction - though the test merely narrowed the population of possible suspects to a group consisting of 14.7 to 16 percent of African-American men, including Osborne. The DNA tests currently available would, by contrast, provide a genetic profile with one-in-a-billion specificity. And Osborne is willing to pay for the DNA test himself.

Given all of these facts, this should be an easy call. Other cases in the future might be more difficult: the police department that is poised to discard the evidence at issue for reasons of cost; the convict who cannot afford to pay for the DNA test himself; the prosecutor who did not rely on the physical evidence to prove guilt; or the situation in which a negative DNA match does not plainly undermine confidence in the verdict. Here, however, the prosecutor should simply have provided the evidence, rather than force Osborne to bring a lawsuit against the District Attorney's office to get what ought to be his obvious due.

It is the D.A.'s failure willingly to hand over the DNA that most powerfully suggests that simple denial is the force at work in this case. If a prosecutor were confident in Osborne's guilt, he would surely want the DNA results, if only to quiet any doubts - including those of the defense - about the possibility that he pursued the wrong man. But how could the prosecutor be utterly confident? Cases that looked airtight at the time have washed away in the wake of DNA evidence. Confident eyewitness identifications that seemed persuasive have turned out to be mistaken.

Yet prosecutors must rely on non-DNA evidence in a large number of cases: they do not have the "luxury" of a near-certain biological identification for every defendant. And for these and other cases, prosecutors do not want to lose faith in the process. Like the city-dweller who fears seeing a cockroach scurrying away after turning on a kitchen light, the prosecutor might prefer to close his eyes. The preference is perhaps a comprehensible expression of human nature. But it is not any kind of justification for withholding the evidence in District Attorney's Office v. Osborne.


Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

Monday, November 10, 2008

Guest Shot: For or against the death penalty?

The following was originally published in Perth (Australia) Confidential on November 10, 2008.

For or against the death penalty?

By Tom Percy QC

November 10, 2008 11:24am
I have to admit I once supported the death penalty. It had a fundamental righteousness, an eye-for-an-eye type of justice, with a superficial but immediate appeal to it.

However, a sequence of events was to change my mind as I came at close quarters with two men and a woman who had experienced the shadow of the gallows.

Even though we haven’t hanged anyone in Australia since 1967, and in WA since 1964, those unlucky enough to be convicted of wilful murder in Perth were still sentenced to death until 1984, when the mandatory penalty was removed from the Criminal Code.

The last one of those was a country woman named Brenda Hodge, who was convicted in my hometown of Kalgoorlie in 1984. I was the junior (very junior) counsel to a leading Perth QC at her trial. We all believed that she wouldn’t hang, but watching on as the judge pronounced the litany of the death sentence was something I shall never forget.

It was a galling experience, like something out of a movie. The terror in her eyes as the sentence was passed will haunt me forever.

They didn’t hang her. She survived prison, was released some years ago, and has lived a blameless life ever since.

Fifteen years later I came to meet John Button and took on his case for what appeared to be a wrongful conviction in 1963. He had not been sentenced to death, having only been convicted of the alternate offence of manslaughter, but he did stand trial for wilful murder in an era when a conviction for that offence meant he would almost certainly have been hanged.

He was ultimately acquitted in 2002, some 40 years after the event, but the fact that he had come within an ace of being executed hardened my opposition to the death penalty. It was a little too permanent for my liking.

Through my involvement in Button’s case I was asked to assist with Darryl Beamish’s case in 2004. He was a mentally impaired man who had been sentenced to death in 1961, and was fortunate to have been reprieved from hanging. Only the fact of his age (he was 20 when he entered death row at Fremantle) and that he was a deaf mute saved him. The 15 years’ prison he wrongly served for the offence was hard to get my head around, as was the fact he was only spared execution by the accident of his own physical disabilities.

Like Button, he had been wrongly convicted. My involvement in this case galvanised me (if any galvanisation were still required) in the resolve that there could never be any justification for a community putting one of its own members to death. Obviously not all people convicted of capital crimes are wrongly convicted. The vast majority of these cases will involve the right person. But what of those that don’t? Where the system gets it wrong?

Proponents of capital punishment assure us that the possibility of a mistake is so unlikely that we need not worry about it. I can’t subscribe to that. Nor, I suspect, would Andrew Mallard and at least three of my former clients.

Guest Shot: Put scientists, not cops, in crime labs

This opinion was originally published in the Detroit (Michigan) Free Press on November 8, 2008.

Put scientists, not cops, in crime labs
By David A. Moran and Samuel R. Gross • November 8, 2008

The Michigan State Police released a final report late last month on the firearms unit of the Detroit Police Crime Lab. It’s a highly disturbing document.

MSP found, among other deficiencies, that guns and bullets were kept unsecured and unprotected from possible loss and contamination; that essential records were missing in some 90% of the files; that critical scientific equipment had never been properly calibrated; and that many of the firearms examiners were untrained and unqualified.

An audit of 283 of the cases handled by the unit found an error rate greater than 10% – including several cases in which the examiners apparently assumed that the submitted bullets and shell casings came from the defendants’ guns without actually testing all of the evidence. It is likely that errors by this unit have led to many wrongful convictions.

Wayne County Prosecuting Attorney Kym Worthy and Detroit Police Chief James Barren have responded forcefully to this fiasco. In September, after a preliminary version of the report was issued, they shut down the entire Detroit Police Crime Lab. Worthy is also committed to retesting evidence in the hundreds, if not thousands, of cases in which people have been convicted based on results from the firearms unit.

We commend Worthy and Barren for their commitment to seeing that justice is done. Their task will get even harder if the city finds the funds to complete the audit of the crime lab, including the units that deal with fingerprints, DNA evidence and other physical and biological specimens.

The good news is that Detroit may be no worse off than many other cities. The bad news is that the good news – if you can call it that – is really terrible. This is a crisis that is national in scope. Consider three examples, among many:

• The Houston Police Department’s crime lab was shut down in 2003 after a media investigation uncovered massive incompetence. Thousands of cases were affected. After the shutdown 280 boxes of lost or mishandled evidence were discovered in a property room, including human body parts and a fetus.

• Last month, the Los Angeles Police Department fired a fingerprint analyst and suspended three others for reporting false fingerprint identifications. We don’t know yet how widespread the problem in Los Angeles is, but similar things have happened elsewhere. An ABC News report in 1994 found that officers had faked fingerprint matches in dozens of cases in at least seven states.

• In 1997 a Justice Department report concluded that 13 technicians at FBI crime labs had made serious errors or slanted testimony to help prosecutors. A later investigation concluded that thousands of cases may have been tainted by shoddy work or misleading evidence.

Fixing this problem will take money, training, and supervision. We’ll never get CSI evidence worth using if the work is done with outdated equipment by untrained, underpaid and overworked technicians.

But money alone can’t solve everything. Most crime labs in the United States are run by police departments. That should change. We need independent crime labs run by scientists, not by police officers.

Some forensic examiners in police crime labs come to believe that their advancement depends on pleasing the officers who give them evidence to test. In the worst cases, this leads to outright fraud and the conviction of innocent people.

• Joyce Gilchrist, a chemist in the Oklahoma City Police Crime Lab, became a star as the “go to expert” – the one who could deliver a conviction where others failed. By the time she was fired in 2001, her fraudulent testimony had sent at least three innocent men to prison, including two to death row. Hundreds of her other cases are still under investigation by the authorities.

• Fred Zain was chief of serology – blood science – at the West Virginia State Police lab, where he was implicated in hundreds of cases of fraud and perjury. He went on to pursue his ignominious career in San Antonio, Texas – where he died while perjury charges were pending – but only after he was named West Virginia State Trooper of the Year. Zain’s fraudulent testimony sent at least five innocent people to prison.

Systematic fraud is only the most extreme problem with police-run crime labs. After the police arrest a suspect, their job is to get him convicted. This applies to everybody in the police department: We all believe in our own teams and want to help them win. This can lead the most honest investigators to misinterpret evidence and to reach conclusions that are consistent with their initial beliefs.

Worse, this type of tunnel vision causes lab workers to ignore evidence that points to other suspects. Fingerprints that were left by some unknown person – or blood with DNA that doesn’t match the suspect – may seem unimportant when you’re focused on getting a conviction. The Innocence Project has documented scores of cases around the country, including at least three in Michigan, in which innocent defendants were convicted while physical evidence pointing to the real criminals was ignored or discounted.

Physical evidence - unlike witness testimony – offers the promise of an objective truth free from the taint of human bias and error. It is as important for the defense in criminal cases as for the prosecution. Fingerprints, blood, semen, guns, bullets and drugs can all provide highly reliable evidence of a defendant’s guilt – or of his innocence – if they are properly collected, stored and tested. If not, there may never be a second chance to do it right.

We need crime lab investigators who do their work with scrupulous care without regard to the suspicions or beliefs of the police. We need labs to be open to defense attorneys as well as prosecutors. We need independent, science-driven crime labs rather than labs run by police departments.

David A. Moran and Samuel R. Gross are professors at the University of Michigan Law School. Moran is also co-director of the Michigan Innocence Clinic.