The following editorial was published by the Washington Post on December 27, 2009.
THREE DAYS after Donald E. Gates was released from prison after serving 28 years for a murder he didn't commit, federal prosecutors acknowledged that they received, but failed to act on, information discrediting testimony key to his conviction. In the same week, a Florida man imprisoned for 35 years for kidnapping and rape was freed after DNA tests proved his innocence. As appalling as the two cases are, what's even scarier is the thought that imperfections in the criminal justice system will go uncorrected and more people could be wrongly jailed.
The wrongful conviction of Mr. Gates in the 1981 rape and murder of a D.C. woman and that of James Bain in the 1974 assault of a 9-year-old boy could serve as primers for what's wrong with the system. In Mr. Bain's case, it was reliance on identification from an unreliable eyewitness: a traumatized 9-year-old. Witness misidentification is the single greatest cause of wrongful convictions, contributing to more than 75 percent of convictions overturned through DNA testing nationwide, the Innocence Project reported.
The second biggest cause is faulty forensics, and that played a starring role in Mr. Gates's conviction. A FBI special agent testified that two pubic hairs found on the victim's body were microscopically identical to those of Mr. Gates. Even if, as later examination showed, the agent hadn't basically been making up his findings, the science behind the technology is suspect. Indeed, a report this year from the National Research Council found such serious deficiencies in the nation's forensic science system that it called for major reforms and new research.
It's also clear from Mr. Gates's case that improvements are needed in how the government discloses information. Even after a 1997 inspector general's report questioned the credibility of FBI agent Michael P. Malone, prosecutors were still, as late as this year, touting his findings. Only after the D.C. public defender's office did its own digging were the problems with Mr. Malone's performance, and the government's failure to disclose them, brought to light.
In a letter to the court admitting that they had received information almost six years ago that called Mr. Gates's conviction into doubt, prosecutors at the U.S. Attorney's Office said that they have referred the matter to the Justice Department's Office of Professional Responsibility. They also should follow the lead of states such as North Carolina in establishing innocence commissions that bring together judges, police, prosecutors, defense attorneys and victim's advocates in an attempt to identify the practices that lead to wrongful convictions and to recommend reforms.
Sunday, December 27, 2009
Friday, December 25, 2009
When justice system crashes
The following editorial was published in the Palm Beach (Florida) Post on December 23, 2009.
When justice system crashes
James Bain is enjoying his first Christmas as a free man since 1973, even though for all those years he was an innocent man. Florida must create a commission to investigate such catastrophic failures of the criminal justice system.
In 1974, Mr. Bain was arrested for the kidnap and rape of a 9-year-old boy. Polk County prosecutors got a conviction, despite relying only on what was a very shaky eyewitness identification. Attorneys for The Innocence Project of Florida pressed for DNA testing, which prosecutors rejected several times before agreeing. Results confirmed Mr. Bain's innocence, and he went home last week.
The state owes Mr. Bain $1.75 million, based on $50,000 for each stolen year. The Florida Supreme Court owes it to the state justice system to create an Innocence Commission.
Mr. Bain became just the latest example of system failure. In 2004, it was Wilton Dedge (22 years). In 2005, it was Luis Diaz (26 years). In 2008, it was Alan Crotzer (24 years) and William Dillon (28 years). Then there are the 23 exonerations from Florida's Death Row.
As Innocence Project co-founder Barry Scheck has noted, these cases are to the justice system what a crash is to the airline industry: a tragedy, but also a chance to learn. When a ValuJet plane crashed in the Everglades 13 years ago, for example, we learned the dangers of outsourcing maintenance. Miscommunication led to the storing of full oxygen canisters in the hold. They ignited.
One week before Mr. Bain's release, Talbot "Sandy" D'Alemberte petitioned the Florida Supreme Court to create a Florida Actual Innocence Commission. According to the petition, the commission would "investigate the circumstances of cases where actual innocence of a crime has been demonstrated and to develop recommendations for reforms to reduce wrongful convictions." Mr. D'Alemberte is a former president of the American Bar Association and Florida State University, where he also was law school dean. Joining the petition at this point are roughly 70 lawyers, among them prosecutors and former Florida Supreme Court justices. Fifty are required for the court to consider a petition.
The petition suggests that the court establish a commission modeled after the one in North Carolina. The court has no timetable to decide, but Mark Schlackman, who works with Mr. D'Alemberte at the Florida State University Center for the Advancement of Human Rights, said, "We are very optimistic."
Other studies, one by the ABA in 2006, identified flaws with the state's criminal justice system. When that system gets it so wrong, so badly, so often, the search for justice demands that the system understand why.
When justice system crashes
James Bain is enjoying his first Christmas as a free man since 1973, even though for all those years he was an innocent man. Florida must create a commission to investigate such catastrophic failures of the criminal justice system.
In 1974, Mr. Bain was arrested for the kidnap and rape of a 9-year-old boy. Polk County prosecutors got a conviction, despite relying only on what was a very shaky eyewitness identification. Attorneys for The Innocence Project of Florida pressed for DNA testing, which prosecutors rejected several times before agreeing. Results confirmed Mr. Bain's innocence, and he went home last week.
The state owes Mr. Bain $1.75 million, based on $50,000 for each stolen year. The Florida Supreme Court owes it to the state justice system to create an Innocence Commission.
Mr. Bain became just the latest example of system failure. In 2004, it was Wilton Dedge (22 years). In 2005, it was Luis Diaz (26 years). In 2008, it was Alan Crotzer (24 years) and William Dillon (28 years). Then there are the 23 exonerations from Florida's Death Row.
As Innocence Project co-founder Barry Scheck has noted, these cases are to the justice system what a crash is to the airline industry: a tragedy, but also a chance to learn. When a ValuJet plane crashed in the Everglades 13 years ago, for example, we learned the dangers of outsourcing maintenance. Miscommunication led to the storing of full oxygen canisters in the hold. They ignited.
One week before Mr. Bain's release, Talbot "Sandy" D'Alemberte petitioned the Florida Supreme Court to create a Florida Actual Innocence Commission. According to the petition, the commission would "investigate the circumstances of cases where actual innocence of a crime has been demonstrated and to develop recommendations for reforms to reduce wrongful convictions." Mr. D'Alemberte is a former president of the American Bar Association and Florida State University, where he also was law school dean. Joining the petition at this point are roughly 70 lawyers, among them prosecutors and former Florida Supreme Court justices. Fifty are required for the court to consider a petition.
The petition suggests that the court establish a commission modeled after the one in North Carolina. The court has no timetable to decide, but Mark Schlackman, who works with Mr. D'Alemberte at the Florida State University Center for the Advancement of Human Rights, said, "We are very optimistic."
Other studies, one by the ABA in 2006, identified flaws with the state's criminal justice system. When that system gets it so wrong, so badly, so often, the search for justice demands that the system understand why.
Sunday, December 20, 2009
Where’s the Justice for Wrongly Imprisoned Man?
The following editorial was published by the Jacksonville (FL) Observer on December 18, 2009.
Where’s the justice in this?
Donald Eugene Gates spent 28 years in prison for a crime he didn’t commit. Convicted in 1981 of the brutal rape and murder of Catherine Schilling, a 21-year-old Georgetown University student, Gates got 20 years to life and was sent to federal prison in Arizona.
Gates was released a few days ago after DNA testing proved he didn’t commit that crime. To help him restart his life, the government gave Gates some winter clothes, $75 and a bus ticket to his hometown, Akron, Ohio. The cab ride from the Tucson prison to the Greyhound bus station cost him $35.
Gates was forced to spend nearly half his 58 years behind bars after an FBI crime lab analyst linked two pubic hairs found at the crime scene to Gates. The reliability of that analyst, Michael Malone, was called into question in several subsequent cases.
A 1997 FBI inspector general’s report concluded Malone and other analysts in the bureau’s Washington crime lab had submitted false reports and performed inaccurate tests in criminal cases. In 2003, a forensic scientist found problems with Malone’s work in the Gates case, but prosecutors never gave that information to Gates’ lawyer.
Gates languished in prison for six more years until the District of Columbia’s Public Defenders Service persuaded the judge who had sentenced him to order a DNA test on the pubic hairs. An earlier test, using a less reliable method, had proved inconclusive. The new test exonerated Gates.
Now, with whatever’s left of his $75 from the federal government, Gates is expected to get on with his life.
When he went to prison in 1981, Ronald Reagan was in the first year of his presidency. “Dallas” was the top-rated television show. The Oakland Raiders had won the Super Bowl, and 5-year-old Tiger Woods appeared on the TV show “That’s Incredible.” Motorola didn’t introduce the first commercial cell phone until two years later.
The world Gates has just entered bears little resemblance to the one he left behind after his wrongful conviction. The nature of work – and the skills needed to land a job – have changed dramatically over the past quarter-century. There’s little chance Gates will find a job that will make him self-sufficient without some special training.
And there’s little hope he won’t fall back into the clutches of the criminal justice system if something isn’t done to compensate him for his lost years.
Such an act of contrition shouldn’t be slow in coming.
The District of Columbia allows people who were wrongfully convicted to seek compensation, but why make Gates go through the motions? Why make him get a lawyer and litigate this in court? Why force him to sue for the help he needs to recover from the injustice he’s suffered?
In ordering Gates’ release, D.C. Superior Court Judge Fred Ugast said, “We are fortunate … that the technology has been developed that permits us to at least try to right a wrong.” But while setting Gates free may soothe the judge’s conscience, much more needs to be done to free him from the ravages of his wrongful conviction.
Where’s the justice in this?
Donald Eugene Gates spent 28 years in prison for a crime he didn’t commit. Convicted in 1981 of the brutal rape and murder of Catherine Schilling, a 21-year-old Georgetown University student, Gates got 20 years to life and was sent to federal prison in Arizona.
Gates was released a few days ago after DNA testing proved he didn’t commit that crime. To help him restart his life, the government gave Gates some winter clothes, $75 and a bus ticket to his hometown, Akron, Ohio. The cab ride from the Tucson prison to the Greyhound bus station cost him $35.
Gates was forced to spend nearly half his 58 years behind bars after an FBI crime lab analyst linked two pubic hairs found at the crime scene to Gates. The reliability of that analyst, Michael Malone, was called into question in several subsequent cases.
A 1997 FBI inspector general’s report concluded Malone and other analysts in the bureau’s Washington crime lab had submitted false reports and performed inaccurate tests in criminal cases. In 2003, a forensic scientist found problems with Malone’s work in the Gates case, but prosecutors never gave that information to Gates’ lawyer.
Gates languished in prison for six more years until the District of Columbia’s Public Defenders Service persuaded the judge who had sentenced him to order a DNA test on the pubic hairs. An earlier test, using a less reliable method, had proved inconclusive. The new test exonerated Gates.
Now, with whatever’s left of his $75 from the federal government, Gates is expected to get on with his life.
When he went to prison in 1981, Ronald Reagan was in the first year of his presidency. “Dallas” was the top-rated television show. The Oakland Raiders had won the Super Bowl, and 5-year-old Tiger Woods appeared on the TV show “That’s Incredible.” Motorola didn’t introduce the first commercial cell phone until two years later.
The world Gates has just entered bears little resemblance to the one he left behind after his wrongful conviction. The nature of work – and the skills needed to land a job – have changed dramatically over the past quarter-century. There’s little chance Gates will find a job that will make him self-sufficient without some special training.
And there’s little hope he won’t fall back into the clutches of the criminal justice system if something isn’t done to compensate him for his lost years.
Such an act of contrition shouldn’t be slow in coming.
The District of Columbia allows people who were wrongfully convicted to seek compensation, but why make Gates go through the motions? Why make him get a lawyer and litigate this in court? Why force him to sue for the help he needs to recover from the injustice he’s suffered?
In ordering Gates’ release, D.C. Superior Court Judge Fred Ugast said, “We are fortunate … that the technology has been developed that permits us to at least try to right a wrong.” But while setting Gates free may soothe the judge’s conscience, much more needs to be done to free him from the ravages of his wrongful conviction.
Guest Shot: Eric Schneiderman: NY Bill would let wrongly convicted prove innocence
The following opinion was originally published in the Buffalo News on December 19, 2009.
Another Voice / Criminal justice
Eric Schneiderman: Bill would let wrongly convicted prove innocence
By Eric Schneiderman
December 19, 2009
Three weeks ago, Fernando Bermudez became a free man after serving 18 years in prison for a murder he did not commit. This will be his first Christmas at home since 1991.
A Manhattan judge threw out his conviction after a cooperating witness lied in court, and witnesses were improperly allowed to discuss a mug shot of Bermudez before identifying him as the shooter. Each one has since recanted.
In a powerfully worded decision, Judge John Cataldo found “clear and convincing evidence” that Bermudez demonstrated his “actual innocence.”
This decision represents a major turning point in the actual innocence movement — an effort to make courts weigh convincing evidence of innocence without procedural roadblocks in cases like this. Here in New York, as in most other states, too many technical obstacles are preventing innocent people like Bermudez from getting the justice they deserve. And when an innocent man is sent to prison, the real criminal remains free to terrorize new victims.
To fix this problem, I have introduced a bill in the State Legislature to establish “actual innocence” as a lawful basis for vacating a prior conviction, giving the wrongfully convicted an opportunity to directly prove their innocence.
Innocent people locked up in prison deserve a hearing when they can produce evidence conclusively proving they are not guilty.
This bill prevents the rejection of innocence claims on technicalities. Had this law been in place in the 1990s, it’s possible that Bermudez could have been a free man years ago.
Indeed, his first application to have the court re-examine evidence establishing his innocence — 14 years ago — and nine subsequent applicants were all denied.
Despite the recantation of five witnesses who had previously identified Bermudez as the killer, and the advocacy of many public officials including Assemblyman Adriano Espaillat, Bermudez’s 10 previous attempts to establish his innocence were denied based on a series of technicalities.
This legislation is particularly important in cases like this one, where there is no DNA evidence. In the last five years, approximately 64 percent of all the exonerations in the United States were based on non-DNA evidence.
Experts observe that the percentage of exonerations based on non-DNA evidence in New York State is only increasing.
The Bermudez case is a wake-up call. It is completely inconsistent with American values of justice and fairness to imprison innocent people without giving them a chance to reverse wrongful convictions where convincing evidence exists.
We have the momentum — it’s time to reform our criminal justice system and ensure that no one does time for a crime he didn’t commit.
Eric Schneiderman, D-New York City, representsthe 31st State Senate District.
Another Voice / Criminal justice
Eric Schneiderman: Bill would let wrongly convicted prove innocence
By Eric Schneiderman
December 19, 2009
Three weeks ago, Fernando Bermudez became a free man after serving 18 years in prison for a murder he did not commit. This will be his first Christmas at home since 1991.
A Manhattan judge threw out his conviction after a cooperating witness lied in court, and witnesses were improperly allowed to discuss a mug shot of Bermudez before identifying him as the shooter. Each one has since recanted.
In a powerfully worded decision, Judge John Cataldo found “clear and convincing evidence” that Bermudez demonstrated his “actual innocence.”
This decision represents a major turning point in the actual innocence movement — an effort to make courts weigh convincing evidence of innocence without procedural roadblocks in cases like this. Here in New York, as in most other states, too many technical obstacles are preventing innocent people like Bermudez from getting the justice they deserve. And when an innocent man is sent to prison, the real criminal remains free to terrorize new victims.
To fix this problem, I have introduced a bill in the State Legislature to establish “actual innocence” as a lawful basis for vacating a prior conviction, giving the wrongfully convicted an opportunity to directly prove their innocence.
Innocent people locked up in prison deserve a hearing when they can produce evidence conclusively proving they are not guilty.
This bill prevents the rejection of innocence claims on technicalities. Had this law been in place in the 1990s, it’s possible that Bermudez could have been a free man years ago.
Indeed, his first application to have the court re-examine evidence establishing his innocence — 14 years ago — and nine subsequent applicants were all denied.
Despite the recantation of five witnesses who had previously identified Bermudez as the killer, and the advocacy of many public officials including Assemblyman Adriano Espaillat, Bermudez’s 10 previous attempts to establish his innocence were denied based on a series of technicalities.
This legislation is particularly important in cases like this one, where there is no DNA evidence. In the last five years, approximately 64 percent of all the exonerations in the United States were based on non-DNA evidence.
Experts observe that the percentage of exonerations based on non-DNA evidence in New York State is only increasing.
The Bermudez case is a wake-up call. It is completely inconsistent with American values of justice and fairness to imprison innocent people without giving them a chance to reverse wrongful convictions where convincing evidence exists.
We have the momentum — it’s time to reform our criminal justice system and ensure that no one does time for a crime he didn’t commit.
Eric Schneiderman, D-New York City, representsthe 31st State Senate District.
Wednesday, November 18, 2009
David Protess: Reaction to State's Filing
The following was sent out over a Northwestern University listserve. David Protess is responding the the Cook County DA's subpoena for grades and similar records of his journalism students who investigated Anthony McKinney's innocence claims.
Reaction to the state's filing
David Protess
November 16, 2009
On October 10, the State’s Attorney’s Office (SAO) filed a 54-page document alleging my students paid witnesses in their investigation of the Anthony McKinney case. Breathless accounts by journalists rapidly appeared in print, broadcast and on-line publications across the country. Unfortunately, reporters focused almost entirely on the prosecutors’ allegations in the first part of the document and ignored the actual interviews with the witnesses, which were recounted as exhibits at the end of the court filing.
Here’s what we know from those exhibits — the SAO’s own investigative reports:
1. Two alleged witnesses — and no others — claimed my students and our private detective paid them money. One is convicted killer and armed robber Tony Drake, who, after murdering a disabled man in 1985, has been re-incarcerated twice for aggravated domestic battery. The other is a Wisconsin drug dealer, Michael Lane.
2. Tony Drake was interviewed, in prison, by two prosecutors and a state's attorney's investigator, and questioned about the videotaped interview with my students in which he confessed to being present for the murder of Donald Lundahl. It is not surprising that, under the circumstances, Drake recanted.
3. Even though he stated on the videotape that he had not received any compensation for talking with my students, Drake told the trio from the SAO that he'd been paid $100. Yet, the state's evidence of the alleged payment was a $60 cab fare given to the driver, for which we have a receipt. When prosecutors asked Drake about being paid for the interview, here's how he responded, according to their own report: ". . . the students told him they could not give him money for an interview." (emphasis added.)
4. Anthony McKinney's lawyers have filed seven affidavits from our sources indicating that Drake confessed the Lundahl murder to them. There is no reference to this corroborative evidence in the SAO report.
5. The second witness, Michael Lane, told a state's attorney's investigator that my students had paid him "a couple hundred dollars." The investigator was openly dubious of this claim. According to his report, he said that "it seemed unlikely the students gave him a couple hundred dollars."
6. Lane described the investigator who accompanied the students as "a male black with a ponytail maybe in his late forties." Sergio Serritella, the only investigator I have worked with since 2000, is a male white with short wavy hair and (at the time) was in his mid-twenties. Since the SAO investigator knows Serritella, he must have wondered who Lane was talking about.
7. The SAO investigator gave Lane $10 "as a travel expense," according to his report. The reason: "[Lane] was driving a Denali and it was costly to operate."
8. The SAO interview with Lane took place on June 22, 2009 — one month after the state issued a subpoena for grades because prosecutors purportedly had hard evidence that questioned Medill students’ "motivation." But the sole pre-subpoena evidence regarding motivation was their interview with Tony Drake.
9. The only other source to raise the issue of money was Robert McGruder, who was named by Tony Drake as an alternative suspect in the crime. In response to questioning by a SAO investigator, McGruder did not claim that Medill students paid him at any point for their two interviews. However, McGruder did report that the lead detectives in the McKinney case paid him “30.00 to 40.00 dollars.” When asked to explain, McGruder said it was their way of apologizing “for hitting him in the police station.”
In sum, except for Tony Drake’s claims, no witness offered any evidence that my student-journalists paid for interviews, while two witnesses said they were paid by law enforcement. And, in the case of Tony Drake, SAO investigators acknowledged Drake was specifically told by the students that “they could not give him money for an interview.”
Why would law enforcement officers believe a convicted killer's account over my student-journalists — unless their motivation was to discredit the students and to direct attention away from the powerful evidence of Anthony McKinney's innocence?
Moreover, in view of the filing, it seems the state has undermined its own legal position on the subpoena by acknowledging they have live witnesses who are available to impeach the evidence we tendered to them. So why do they need our notes and grades? Let their witnesses take the stand, and let the truth be known.
David Protess
Northwestern University
d-protess@northwestern.edu
Reaction to the state's filing
David Protess
November 16, 2009
On October 10, the State’s Attorney’s Office (SAO) filed a 54-page document alleging my students paid witnesses in their investigation of the Anthony McKinney case. Breathless accounts by journalists rapidly appeared in print, broadcast and on-line publications across the country. Unfortunately, reporters focused almost entirely on the prosecutors’ allegations in the first part of the document and ignored the actual interviews with the witnesses, which were recounted as exhibits at the end of the court filing.
Here’s what we know from those exhibits — the SAO’s own investigative reports:
1. Two alleged witnesses — and no others — claimed my students and our private detective paid them money. One is convicted killer and armed robber Tony Drake, who, after murdering a disabled man in 1985, has been re-incarcerated twice for aggravated domestic battery. The other is a Wisconsin drug dealer, Michael Lane.
2. Tony Drake was interviewed, in prison, by two prosecutors and a state's attorney's investigator, and questioned about the videotaped interview with my students in which he confessed to being present for the murder of Donald Lundahl. It is not surprising that, under the circumstances, Drake recanted.
3. Even though he stated on the videotape that he had not received any compensation for talking with my students, Drake told the trio from the SAO that he'd been paid $100. Yet, the state's evidence of the alleged payment was a $60 cab fare given to the driver, for which we have a receipt. When prosecutors asked Drake about being paid for the interview, here's how he responded, according to their own report: ". . . the students told him they could not give him money for an interview." (emphasis added.)
4. Anthony McKinney's lawyers have filed seven affidavits from our sources indicating that Drake confessed the Lundahl murder to them. There is no reference to this corroborative evidence in the SAO report.
5. The second witness, Michael Lane, told a state's attorney's investigator that my students had paid him "a couple hundred dollars." The investigator was openly dubious of this claim. According to his report, he said that "it seemed unlikely the students gave him a couple hundred dollars."
6. Lane described the investigator who accompanied the students as "a male black with a ponytail maybe in his late forties." Sergio Serritella, the only investigator I have worked with since 2000, is a male white with short wavy hair and (at the time) was in his mid-twenties. Since the SAO investigator knows Serritella, he must have wondered who Lane was talking about.
7. The SAO investigator gave Lane $10 "as a travel expense," according to his report. The reason: "[Lane] was driving a Denali and it was costly to operate."
8. The SAO interview with Lane took place on June 22, 2009 — one month after the state issued a subpoena for grades because prosecutors purportedly had hard evidence that questioned Medill students’ "motivation." But the sole pre-subpoena evidence regarding motivation was their interview with Tony Drake.
9. The only other source to raise the issue of money was Robert McGruder, who was named by Tony Drake as an alternative suspect in the crime. In response to questioning by a SAO investigator, McGruder did not claim that Medill students paid him at any point for their two interviews. However, McGruder did report that the lead detectives in the McKinney case paid him “30.00 to 40.00 dollars.” When asked to explain, McGruder said it was their way of apologizing “for hitting him in the police station.”
In sum, except for Tony Drake’s claims, no witness offered any evidence that my student-journalists paid for interviews, while two witnesses said they were paid by law enforcement. And, in the case of Tony Drake, SAO investigators acknowledged Drake was specifically told by the students that “they could not give him money for an interview.”
Why would law enforcement officers believe a convicted killer's account over my student-journalists — unless their motivation was to discredit the students and to direct attention away from the powerful evidence of Anthony McKinney's innocence?
Moreover, in view of the filing, it seems the state has undermined its own legal position on the subpoena by acknowledging they have live witnesses who are available to impeach the evidence we tendered to them. So why do they need our notes and grades? Let their witnesses take the stand, and let the truth be known.
David Protess
Northwestern University
d-protess@northwestern.edu
Thursday, November 12, 2009
Editorial: Prosecutor misconduct has a high public cost
The following op-ed was published by the San Jose, CA Mercury-News on November 11, 2009.
Prosecutor misconduct has a high public cost
By Kathleen 'Cookie' Ridolfi and Maurice Possley
Special to the Mercury News
Posted: 11/11/2009 08:00:00 PM PST
For the fourth time in as many years, Santa Clara County residents must cough up hundreds of thousands of their tax dollars due to allegations of prosecutorial misconduct.
Last month, the county authorized paying $750,000 to settle a lawsuit brought by Donna Auguste, whose Colorado home was illegally searched by police six years ago. As the citizens of Santa Clara County feel the sting of the $750,000 settlement, they should realize that this is not an isolated instance. It raises the cost to taxpayers due to prosecutorial misconduct accusations since 2005 to more than $5 million.
Earlier this year, the county forked over $1 million to settle a lawsuit alleging, in part, prosecutorial misconduct brought by Jeffrey Rodriguez, who was wrongfully convicted and released after five years in prison.
Two years ago, the county settled a similar suit brought by Rick Walker, who served 12 years in prison for a murder he did not commit. Santa Clara County paid $1.3 million in taxpayer dollars on top of $1.45 million paid by the county's insurance carrier. The state of California paid an additional $409,500 to compensate him for the 12 years he lost.
In 2005, the county paid nearly $1 million to Glen Nickerson, who spent nearly 19 years behind bars before his murder conviction was overturned following evidence of police and prosecutorial misconduct.
Remarkably, not a single prosecutor faced discipline in these prosecutions, with the exception of Santa Clara County prosecutor Ben Field. Field, who orchestrated the illegal search in the Auguste case and whose multiple prosecutorial misdeeds have been exposed by the Mercury News, has been ordered to surrender his law license for four years.
But the cost of prosecutorial misconduct goes far beyond the dollars removed from taxpayer wallets.
Donna Auguste, for example, spent $900,000 to free her nephew. There is the cost of the hundreds of hours racked up by attorneys in the office of Santa Clara County Counsel who defended the lawsuit. This is time that could have been spent on other matters of importance to the citizenry.
And what price do you put on the more than 40 years that Walker, Nickerson, Rodriguez and Damon Auguste spent behind bars before they were exonerated? The cost of housing them alone is more than $1 million. The personal cost to these men cannot be quantified. Those years are gone.
Perhaps most significant is the immeasurable cost and risk to society of having the real perpetrators still out there.
Prosecutors rarely suffer personal consequences for engaging in misconduct. They have absolute immunity for their official conduct as advocates, and when acting as investigators, they can be held liable for their misconduct only if it violates the law.
A recent study by the California Commission on the Fair Administration of Justice examined California appellate court rulings and found that during the ten year period ending in 2007, prosecutors committed misconduct in 444 cases, yet only two were disciplined. Thirty of them committed misconduct more than once. Two of them did it three times. Virtually all of these prosecutors walked away unscathed.
In these difficult economic times, taxpayers might well wonder if they can continue to spend this kind of money to support a criminal justice system that allows prosecutors to avoid personal responsibility, innocent defendants to be locked up, and true criminals to go free. But this is not a decision that should be based solely on dollars, no matter what the economy is doing.
Too much is at stake.
KATHLEEN RIDOLFI is executive director of the Northern California Innocence Project at Santa Clara University School of Law. MAURICE POSSLEY, a Pulitzer Prize winning former investigative reporter for the Chicago Tribune, is an investigator and researcher with the project. They wrote this article for the Mercury News.
Prosecutor misconduct has a high public cost
By Kathleen 'Cookie' Ridolfi and Maurice Possley
Special to the Mercury News
Posted: 11/11/2009 08:00:00 PM PST
For the fourth time in as many years, Santa Clara County residents must cough up hundreds of thousands of their tax dollars due to allegations of prosecutorial misconduct.
Last month, the county authorized paying $750,000 to settle a lawsuit brought by Donna Auguste, whose Colorado home was illegally searched by police six years ago. As the citizens of Santa Clara County feel the sting of the $750,000 settlement, they should realize that this is not an isolated instance. It raises the cost to taxpayers due to prosecutorial misconduct accusations since 2005 to more than $5 million.
Earlier this year, the county forked over $1 million to settle a lawsuit alleging, in part, prosecutorial misconduct brought by Jeffrey Rodriguez, who was wrongfully convicted and released after five years in prison.
Two years ago, the county settled a similar suit brought by Rick Walker, who served 12 years in prison for a murder he did not commit. Santa Clara County paid $1.3 million in taxpayer dollars on top of $1.45 million paid by the county's insurance carrier. The state of California paid an additional $409,500 to compensate him for the 12 years he lost.
In 2005, the county paid nearly $1 million to Glen Nickerson, who spent nearly 19 years behind bars before his murder conviction was overturned following evidence of police and prosecutorial misconduct.
Remarkably, not a single prosecutor faced discipline in these prosecutions, with the exception of Santa Clara County prosecutor Ben Field. Field, who orchestrated the illegal search in the Auguste case and whose multiple prosecutorial misdeeds have been exposed by the Mercury News, has been ordered to surrender his law license for four years.
But the cost of prosecutorial misconduct goes far beyond the dollars removed from taxpayer wallets.
Donna Auguste, for example, spent $900,000 to free her nephew. There is the cost of the hundreds of hours racked up by attorneys in the office of Santa Clara County Counsel who defended the lawsuit. This is time that could have been spent on other matters of importance to the citizenry.
And what price do you put on the more than 40 years that Walker, Nickerson, Rodriguez and Damon Auguste spent behind bars before they were exonerated? The cost of housing them alone is more than $1 million. The personal cost to these men cannot be quantified. Those years are gone.
Perhaps most significant is the immeasurable cost and risk to society of having the real perpetrators still out there.
Prosecutors rarely suffer personal consequences for engaging in misconduct. They have absolute immunity for their official conduct as advocates, and when acting as investigators, they can be held liable for their misconduct only if it violates the law.
A recent study by the California Commission on the Fair Administration of Justice examined California appellate court rulings and found that during the ten year period ending in 2007, prosecutors committed misconduct in 444 cases, yet only two were disciplined. Thirty of them committed misconduct more than once. Two of them did it three times. Virtually all of these prosecutors walked away unscathed.
In these difficult economic times, taxpayers might well wonder if they can continue to spend this kind of money to support a criminal justice system that allows prosecutors to avoid personal responsibility, innocent defendants to be locked up, and true criminals to go free. But this is not a decision that should be based solely on dollars, no matter what the economy is doing.
Too much is at stake.
KATHLEEN RIDOLFI is executive director of the Northern California Innocence Project at Santa Clara University School of Law. MAURICE POSSLEY, a Pulitzer Prize winning former investigative reporter for the Chicago Tribune, is an investigator and researcher with the project. They wrote this article for the Mercury News.
Tuesday, November 03, 2009
Editorial: The right not to be framed
The following editorial was published by the Washington Post on November 2, 2009.
The right not to be framed
Can prosecutors be sued?
Monday, November 2, 2009
"THERE IS NO Freestanding Constitutional 'Right Not To Be Framed.' " So states a brief filed by Iowa prosecutors hoping to persuade the Supreme Court to dismiss a lawsuit against them for allegedly fabricating evidence that led to the 25-year incarceration of two innocent men. It's a breathtaking proposition that the justices should roundly reject when they hear the case Wednesday.
According to court documents, the prosecutors took a leading role in 1977 in investigating the murder of a recently retired white police officer at an Iowa automobile dealership where he was working security. The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight. Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit.
These contradictions and prosecutors' apparent hand in the alleged fabrications came to light years after the men were sentenced to life without parole when a prison barber made a public records request of police files in the case and came across exculpatory information that had been kept from defense lawyers. The witness ultimately recanted his story. Mr. Harrington's conviction was overturned by the Iowa Supreme Court, which concluded that the star witness was a "liar and perjurer," and Mr. Harrington was freed. Mr. McGhee petitioned for a new trial but ultimately entered a conditional guilty plea that allowed him to go free with time served.
Mr. McGhee and Mr. Harrington, who say that they were targeted because of their race, later sued the two prosecutors and the Iowa county that employed them, using a Reconstruction-era law that gives individuals the right to seek damages from government officials who knowingly deprive them of their constitutional rights. The prosecutors argue that they should be immune from such lawsuits and point to a line of Supreme Court cases that shield prosecutors from legal consequences when they carry out their duties. They argue that state and bar disciplinary structures are best able to deal with accusations of prosecutorial misconduct and that prosecutors will be chilled in doing their jobs if they worry about being sued for innocent missteps.
Prosecutors need to be able carry out their duties without fear that they'll become the targets of personal lawsuits if defendants are found not guilty or charges are dropped. But such lawsuits face high hurdles. The Supreme Court has recently -- and correctly -- made it even more difficult for plaintiffs to make officials personally liable unless there's convincing evidence that they were directly involved in knowingly violating a clearly established constitutional right. Mr. McGhee and Mr. Harrington have shouldered that burden and should be allowed to proceed with their case.
The vast majority of prosecutors perform honorably and understand that they are duty-bound not just to secure convictions but to seek justice. Those who don't often suffer no consequences at the hands of state or bar organizations, as a brief in support of Mr. McGhee and Mr. Harrington convincingly argues. For these few renegades, perhaps the prospect of being held liable will help to keep them in line or, at least, hold them accountable.
The right not to be framed
Can prosecutors be sued?
Monday, November 2, 2009
"THERE IS NO Freestanding Constitutional 'Right Not To Be Framed.' " So states a brief filed by Iowa prosecutors hoping to persuade the Supreme Court to dismiss a lawsuit against them for allegedly fabricating evidence that led to the 25-year incarceration of two innocent men. It's a breathtaking proposition that the justices should roundly reject when they hear the case Wednesday.
According to court documents, the prosecutors took a leading role in 1977 in investigating the murder of a recently retired white police officer at an Iowa automobile dealership where he was working security. The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight. Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit.
These contradictions and prosecutors' apparent hand in the alleged fabrications came to light years after the men were sentenced to life without parole when a prison barber made a public records request of police files in the case and came across exculpatory information that had been kept from defense lawyers. The witness ultimately recanted his story. Mr. Harrington's conviction was overturned by the Iowa Supreme Court, which concluded that the star witness was a "liar and perjurer," and Mr. Harrington was freed. Mr. McGhee petitioned for a new trial but ultimately entered a conditional guilty plea that allowed him to go free with time served.
Mr. McGhee and Mr. Harrington, who say that they were targeted because of their race, later sued the two prosecutors and the Iowa county that employed them, using a Reconstruction-era law that gives individuals the right to seek damages from government officials who knowingly deprive them of their constitutional rights. The prosecutors argue that they should be immune from such lawsuits and point to a line of Supreme Court cases that shield prosecutors from legal consequences when they carry out their duties. They argue that state and bar disciplinary structures are best able to deal with accusations of prosecutorial misconduct and that prosecutors will be chilled in doing their jobs if they worry about being sued for innocent missteps.
Prosecutors need to be able carry out their duties without fear that they'll become the targets of personal lawsuits if defendants are found not guilty or charges are dropped. But such lawsuits face high hurdles. The Supreme Court has recently -- and correctly -- made it even more difficult for plaintiffs to make officials personally liable unless there's convincing evidence that they were directly involved in knowingly violating a clearly established constitutional right. Mr. McGhee and Mr. Harrington have shouldered that burden and should be allowed to proceed with their case.
The vast majority of prosecutors perform honorably and understand that they are duty-bound not just to secure convictions but to seek justice. Those who don't often suffer no consequences at the hands of state or bar organizations, as a brief in support of Mr. McGhee and Mr. Harrington convincingly argues. For these few renegades, perhaps the prospect of being held liable will help to keep them in line or, at least, hold them accountable.
Wednesday, October 28, 2009
Editorial: Justice restored by university volunteers
The following editorial was published by the Dallas Morning News on October 27, 2009.
DNA speaks an unshakeable truth. It seals the fate of the guilty and, most profoundly, gives liberating testimony for those who suffer injustice.
But who speaks the truth about injustice when DNA evidence is nowhere to be found?
For two innocent Dallas men who entered prison 12 years ago, freedom came only through the commitment of volunteer, university-affiliated investigators who followed their instincts.
Newly freed Chris Scott and Claude Simmons said last week that their faith in God sustained them in the face of their hideously unfair life sentences for a robbery-murder they did not commit.
The UT-Arlington Innocence Network and the UT-Austin Actual Innocence Clinic were the answer to their prayers. Both deserve the sense of satisfaction and fulfillment they enjoy today.
At UTA, the effort spanned three years and involved a half-dozen students enrolled in classes taught by Dr. John Stickels. They are titled, appropriately, Innocence 1 and Innocence 2.
The volunteers comb through written claims of innocence to find cases worth pursuing. Their senses told them that things weren't right with the Scott-Simmons cases, and the trail led them through stacks of documents and into prison interview rooms. Finally they had a presentation for the Dallas County district attorney's office, which agreed to reopen the case, as did the Dallas Police Department.
It's a credit to both prosecutors and cops that they allowed for the possibility of grave error in the matter, then invested resources in an effort that might lay bare their own inadequacies. But that's how people and organizations improve. Certainly, DNA technology has proved the criminal justice system far from fail-safe and, at times, even incompetent.
It's noteworthy that this latest reversal revealed faulty witness identification procedures by Dallas police. Most of Texas' nation-leading DNA exonerations involve cases with that same flaw. Every such revelation casts more shame on state lawmakers for failing to pass legislation to clean up slipshod police practices across the state.
Last week's release of Scott and Simmons means that two other suspects, now implicated, have escaped justice in the case for years.
It also leads to the disquieting question of what might have happened if Scott and Simmons had been sent to death row instead of prison for life. The crime for which they were convicted was a capital offense and could have resulted in executions.
Think of how easy it might have been. It took six minutes for a jury to decide Anderson's guilt at his trial in 1997. No biological material was available as evidence in the case, so DNA technology could provide no immunity to injustice. That is the case with the vast majority of crimes.
Based on the incidence of DNA exonerations, criminologists have devised formulas to estimate the number of unjust convictions in American courts. In Texas, which confines 150,000-plus prisoners, some educated guesses would put the number at several thousand people.
The numbers are debatable. The fact of widespread error is not.
Credit goes to those who are most troubled by intolerable flaws and who, for little or no personal gain, devote themselves to doing something about it.
DNA speaks an unshakeable truth. It seals the fate of the guilty and, most profoundly, gives liberating testimony for those who suffer injustice.
But who speaks the truth about injustice when DNA evidence is nowhere to be found?
For two innocent Dallas men who entered prison 12 years ago, freedom came only through the commitment of volunteer, university-affiliated investigators who followed their instincts.
Newly freed Chris Scott and Claude Simmons said last week that their faith in God sustained them in the face of their hideously unfair life sentences for a robbery-murder they did not commit.
The UT-Arlington Innocence Network and the UT-Austin Actual Innocence Clinic were the answer to their prayers. Both deserve the sense of satisfaction and fulfillment they enjoy today.
At UTA, the effort spanned three years and involved a half-dozen students enrolled in classes taught by Dr. John Stickels. They are titled, appropriately, Innocence 1 and Innocence 2.
The volunteers comb through written claims of innocence to find cases worth pursuing. Their senses told them that things weren't right with the Scott-Simmons cases, and the trail led them through stacks of documents and into prison interview rooms. Finally they had a presentation for the Dallas County district attorney's office, which agreed to reopen the case, as did the Dallas Police Department.
It's a credit to both prosecutors and cops that they allowed for the possibility of grave error in the matter, then invested resources in an effort that might lay bare their own inadequacies. But that's how people and organizations improve. Certainly, DNA technology has proved the criminal justice system far from fail-safe and, at times, even incompetent.
It's noteworthy that this latest reversal revealed faulty witness identification procedures by Dallas police. Most of Texas' nation-leading DNA exonerations involve cases with that same flaw. Every such revelation casts more shame on state lawmakers for failing to pass legislation to clean up slipshod police practices across the state.
Last week's release of Scott and Simmons means that two other suspects, now implicated, have escaped justice in the case for years.
It also leads to the disquieting question of what might have happened if Scott and Simmons had been sent to death row instead of prison for life. The crime for which they were convicted was a capital offense and could have resulted in executions.
Think of how easy it might have been. It took six minutes for a jury to decide Anderson's guilt at his trial in 1997. No biological material was available as evidence in the case, so DNA technology could provide no immunity to injustice. That is the case with the vast majority of crimes.
Based on the incidence of DNA exonerations, criminologists have devised formulas to estimate the number of unjust convictions in American courts. In Texas, which confines 150,000-plus prisoners, some educated guesses would put the number at several thousand people.
The numbers are debatable. The fact of widespread error is not.
Credit goes to those who are most troubled by intolerable flaws and who, for little or no personal gain, devote themselves to doing something about it.
Opinion | Editorial - An Unjust Prosecution
The following editorial was published in the Cornell Daily Sun on October 28, 2009.
Students at Northwestern’s graduate school of journalism are doing more than learning to write ledes, conduct interviews and blog. Instead, they have worked toward and succeeded at exonerating innocent inmates who have been wrongfully accused. But now, the group of students who take part in the Medill Innocence Project are being threatened by a demand by local prosecution to hand over information surrounding a current investigation.
As student journalists, we are appalled by the Cook County Circuit Court, which has demanded the grades, grading criteria, class syllabus, expense reports and e-mail messages sent by students in the course, according to The New York Times. By encroaching on the students’ independent investigation into the case of Anthony McKinney, who was charged with murder in 1978, the court is undermining the legitimacy of the project.
In this most recent investigation, the students exposed in a videotaped interview that a key eyewitness in McKinney’s trial had been beaten by the police during his testimony “until he made made up a story against Anthony McKinney,” according to the Innocence Project’s website. The students further identified a number of other leading suspects, including a convicted killer who admits to being present at the murder and upholds McKinney’s innocence. But prosecutors doubt the validity of the study and are taking extraneous measures to derail the project’s findings.
Prosecutors are alleging that the students may be motivated by grades and thus might be inclined to interview specific suspects who would suggest a suspect’s innocence. McKinney’s case is open and ongoing and thus, the information obtained by the students is critical evidence. But the success of the Innocence Project, which has spearheaded investigations that have led to the release of 11 wrongfully accused inmates since 1999, suggests that these students are doing this for more than a grade.
Those at Medill have proven that they are fulfilling the role of the journalist — student or professional. As their efforts are unjustly policed, we feel a more broad attack is being made on journalism as a whole. Rather than dig into and verify the information being revealed, the prosecution is attacking those doing the uncovering, posing an immediate threat to the dissemination of truth.
Professors’ syllabi and students’ grades are purely data of academic significance. That the prosecution is seeking to intrude into this realm proves that they have an alternative motive that goes beyond the scope of a criminal investigation.
By providing confidential material to the court, the student journalists run the risk of becoming “an arm of the government,” as stated by David Protess, director of the Medill Innocence Project. “It would destroy our autonomy,” Protess told The New York Times. “We function with journalism standards and practices to guide our work.”
We stand behind those involved in the Innocence Project and the more than 50 other groups that are part of the Innocence Network. Further, we condemn the Cook County Circuit Court for the threats they are posing all those out there seeking to uncover the truth.
Students at Northwestern’s graduate school of journalism are doing more than learning to write ledes, conduct interviews and blog. Instead, they have worked toward and succeeded at exonerating innocent inmates who have been wrongfully accused. But now, the group of students who take part in the Medill Innocence Project are being threatened by a demand by local prosecution to hand over information surrounding a current investigation.
As student journalists, we are appalled by the Cook County Circuit Court, which has demanded the grades, grading criteria, class syllabus, expense reports and e-mail messages sent by students in the course, according to The New York Times. By encroaching on the students’ independent investigation into the case of Anthony McKinney, who was charged with murder in 1978, the court is undermining the legitimacy of the project.
In this most recent investigation, the students exposed in a videotaped interview that a key eyewitness in McKinney’s trial had been beaten by the police during his testimony “until he made made up a story against Anthony McKinney,” according to the Innocence Project’s website. The students further identified a number of other leading suspects, including a convicted killer who admits to being present at the murder and upholds McKinney’s innocence. But prosecutors doubt the validity of the study and are taking extraneous measures to derail the project’s findings.
Prosecutors are alleging that the students may be motivated by grades and thus might be inclined to interview specific suspects who would suggest a suspect’s innocence. McKinney’s case is open and ongoing and thus, the information obtained by the students is critical evidence. But the success of the Innocence Project, which has spearheaded investigations that have led to the release of 11 wrongfully accused inmates since 1999, suggests that these students are doing this for more than a grade.
Those at Medill have proven that they are fulfilling the role of the journalist — student or professional. As their efforts are unjustly policed, we feel a more broad attack is being made on journalism as a whole. Rather than dig into and verify the information being revealed, the prosecution is attacking those doing the uncovering, posing an immediate threat to the dissemination of truth.
Professors’ syllabi and students’ grades are purely data of academic significance. That the prosecution is seeking to intrude into this realm proves that they have an alternative motive that goes beyond the scope of a criminal investigation.
By providing confidential material to the court, the student journalists run the risk of becoming “an arm of the government,” as stated by David Protess, director of the Medill Innocence Project. “It would destroy our autonomy,” Protess told The New York Times. “We function with journalism standards and practices to guide our work.”
We stand behind those involved in the Innocence Project and the more than 50 other groups that are part of the Innocence Network. Further, we condemn the Cook County Circuit Court for the threats they are posing all those out there seeking to uncover the truth.
Tuesday, October 27, 2009
A Tribute to Pete Shellem, by Steve Drizin
It is with great sadness that I inform you all of the death of Pete Shellem. Pete Shellem was one of the finest investigative journalists I have ever encountered. Writing for the Harrisburg Patriot-News, in the middle of Pennsylvania, Pete’s work led to at least four exonerations.
He was at his best when he wrote about the problem of false confessions, a difficult issue for many in the public to understand. His work (and I mean his work not the work of lawyers) led to the exoneration of Barry Laughman, a mentally limited man who had confessed to murdering and raping his aunt. Shellem tracked down the DNA evidence to the refrigerator of a lab analyst at Penn State who had moved abroad; his writing pressured the judges and prosecutors to agree to testing which ultimately exonerated Laughman. Shellem’s brilliant work in Laughman is featured in True Stories of False Confessions (co-edited by Rob Warden and I). In another case, his investigative work helped to clear William Kelly, another man who falsely confessed before Kelly could be convicted. Both of these men were of low intelligence and had only a modicum of support for them in the community. They would still be in prison today if not for Pete’s work.
Pete often called me to discuss his investigations and frequently used me as a source as I began to develop some expertise in the area of false confessions. I recall these conversations well. Pete was on fire, firing questions at me that revealed not only a tremendous knowledge of police investigations and police misconduct, but also a tenacity that almost made me feel sorry for those who he would soon take to task for their roles in these wrongful convictions. I can honestly say he taught me much more than I taught him. It’s a terribly sad day for his loved ones but also a sad day for the criminal justice system in Central Pennsylvania and for the Innocence Movement as a whole.
_________________________________________________________
Editor's Note: Truth in Justice proudly maintains Pete's investigative reports regarding the cases of Barry Laughman, Steven Crawford, Jay Smith, Patti Carbone, William Kelly, David Gladden and Ted Dubbs. Use our site search engine on the main page to locate these articles. Read Pete's own commentary on the Dubbs case HERE to get a glimpse into the kind of man Pete Shellem was.
He was at his best when he wrote about the problem of false confessions, a difficult issue for many in the public to understand. His work (and I mean his work not the work of lawyers) led to the exoneration of Barry Laughman, a mentally limited man who had confessed to murdering and raping his aunt. Shellem tracked down the DNA evidence to the refrigerator of a lab analyst at Penn State who had moved abroad; his writing pressured the judges and prosecutors to agree to testing which ultimately exonerated Laughman. Shellem’s brilliant work in Laughman is featured in True Stories of False Confessions (co-edited by Rob Warden and I). In another case, his investigative work helped to clear William Kelly, another man who falsely confessed before Kelly could be convicted. Both of these men were of low intelligence and had only a modicum of support for them in the community. They would still be in prison today if not for Pete’s work.
Pete often called me to discuss his investigations and frequently used me as a source as I began to develop some expertise in the area of false confessions. I recall these conversations well. Pete was on fire, firing questions at me that revealed not only a tremendous knowledge of police investigations and police misconduct, but also a tenacity that almost made me feel sorry for those who he would soon take to task for their roles in these wrongful convictions. I can honestly say he taught me much more than I taught him. It’s a terribly sad day for his loved ones but also a sad day for the criminal justice system in Central Pennsylvania and for the Innocence Movement as a whole.
_________________________________________________________
Editor's Note: Truth in Justice proudly maintains Pete's investigative reports regarding the cases of Barry Laughman, Steven Crawford, Jay Smith, Patti Carbone, William Kelly, David Gladden and Ted Dubbs. Use our site search engine on the main page to locate these articles. Read Pete's own commentary on the Dubbs case HERE to get a glimpse into the kind of man Pete Shellem was.
Monday, October 19, 2009
Guest Shot: Jaded Justice
The following editorial was published in the Washington Post on October 19, 2009.
Jaded justice
Reexamining a Bush-era policy on plea bargains and DNA
ON ITS FACE the proposition seems reasonable enough: Anyone who pleads guilty to a federal crime must give up the right to use DNA evidence in the future to challenge that conviction. This Bush-era policy would work just fine in a perfect world, where only those who actually committed crimes pleaded guilty to those offenses.
But the facts show that this is not always the case. Defendants sometimes cop to a plea for reasons having nothing to do with guilt. Some are coerced or intimidated into a confession and subsequent plea bargain. Others accept a plea offer if it provides for a much lighter sentence than could be expected if convicted at trial. In short, not everyone who pleads guilty is guilty -- and prosecutors understand this.
Yet according to The Post's Jerry Markon, the Bush Justice Department lobbied strenuously during the early part of this decade against legislation to assure inmates of access to post-conviction DNA evidence that could prove their innocence. When the bill appeared on the verge of passing, the administration succeeded in jamming through a provision that allows defendants to waive that right. Prosecutors in the Bush administration were then instructed to insist on such waivers when negotiating a plea bargain. While not all U.S. attorneys in the country went along, many routinely abided by the mandate, including federal prosecutors in the District and in Alexandria.
Attorney General Eric J. Holder Jr. has called for a reexamination of the Bush policy -- and rightly so.
DNA evidence has become an invaluable tool in the criminal justice system, providing prosecutors, defendants and victims with more certainty about guilt or innocence. The technology has been used to prove the innocence of some 240 or so wrongly convicted people, including some who had entered guilty pleas and some who were sentenced to death. It has been used countless more times to put actual offenders behind bars.
It takes a special kind of callousness and disregard for the truth to insist that a defendant give up his rights to scientific tests that could definitively prove guilt or innocence.
Mr. Holder should rebuff this jaded approach to justice by throwing out the Bush policy as soon as possible.
Jaded justice
Reexamining a Bush-era policy on plea bargains and DNA
ON ITS FACE the proposition seems reasonable enough: Anyone who pleads guilty to a federal crime must give up the right to use DNA evidence in the future to challenge that conviction. This Bush-era policy would work just fine in a perfect world, where only those who actually committed crimes pleaded guilty to those offenses.
But the facts show that this is not always the case. Defendants sometimes cop to a plea for reasons having nothing to do with guilt. Some are coerced or intimidated into a confession and subsequent plea bargain. Others accept a plea offer if it provides for a much lighter sentence than could be expected if convicted at trial. In short, not everyone who pleads guilty is guilty -- and prosecutors understand this.
Yet according to The Post's Jerry Markon, the Bush Justice Department lobbied strenuously during the early part of this decade against legislation to assure inmates of access to post-conviction DNA evidence that could prove their innocence. When the bill appeared on the verge of passing, the administration succeeded in jamming through a provision that allows defendants to waive that right. Prosecutors in the Bush administration were then instructed to insist on such waivers when negotiating a plea bargain. While not all U.S. attorneys in the country went along, many routinely abided by the mandate, including federal prosecutors in the District and in Alexandria.
Attorney General Eric J. Holder Jr. has called for a reexamination of the Bush policy -- and rightly so.
DNA evidence has become an invaluable tool in the criminal justice system, providing prosecutors, defendants and victims with more certainty about guilt or innocence. The technology has been used to prove the innocence of some 240 or so wrongly convicted people, including some who had entered guilty pleas and some who were sentenced to death. It has been used countless more times to put actual offenders behind bars.
It takes a special kind of callousness and disregard for the truth to insist that a defendant give up his rights to scientific tests that could definitively prove guilt or innocence.
Mr. Holder should rebuff this jaded approach to justice by throwing out the Bush policy as soon as possible.
Friday, October 16, 2009
Louisville (KY) Courier-Journal Editorial: A tardy exoneration
October 15, 2009
A tardy exoneration
The exoneration of Edwin Chandler, who served nine years in prison for a Louisville homicide 16 years ago that he did not commit, may be an instance of justice ultimately prevailing. But it is not affirmation that the legal system worked as it should or that it has overcome inherent shortcomings.
Indeed, Mr. Chandler should never have been convicted, or probably even prosecuted. The physical evidence — fingerprints on a bottle of beer, and ownership of a knit cap and sunglasses — could not be matched to him. A man who had been pumping gasoline outside the convenience store where a clerk was shot and killed insisted that Mr. Chandler was not the perpetrator, but police largely ignored him, and he was not called to testify at trial. The police interrogator assumed from the outset that Mr. Chandler was guilty. Mr. Chandler said police used scare tactics to coerce a false confession.
The wrongful prison sentence stripped years from Mr. Chandler's life that can never be returned. It also forces the shooting victim's family to relive a nightmare that should have been closed years ago. But the biggest tragedy is that cases such as this are not a rarity in the United States.
The Innocence Project, whose Kentucky branch handled the Chandler case, says on its Web site that there have been 244 post-conviction exonerations since the venture was begun in 1992 in affiliation with Yeshiva University. Mr. Chandler's conviction seems typical of the miscarriages of justice that the project addresses. Seventy percent of the wrongfully convicted defendants are racial minorities (Mr. Chandler is black), for example, and 40 percent of the cases result in the real perpetrator being identified (a repeat offender has been indicted for the Louisville murder).
In the face of such statistics, it is appalling that the U.S. Supreme Court ruled in June that inmates in the six states that do not allow post-conviction access to DNA evidence cannot use federal civil rights laws to obtain advanced DNA testing. (The Chandler case was rectified based on fingerprints, but DNA produces most post-conviction reversals.)
The justice system is charged with getting things right — for the benefit of victims, defendants and society. The courts must recognize that this doesn't always happen, and do whatever it can, whenever it can, to prevent or reverse life-altering errors.
A tardy exoneration
The exoneration of Edwin Chandler, who served nine years in prison for a Louisville homicide 16 years ago that he did not commit, may be an instance of justice ultimately prevailing. But it is not affirmation that the legal system worked as it should or that it has overcome inherent shortcomings.
Indeed, Mr. Chandler should never have been convicted, or probably even prosecuted. The physical evidence — fingerprints on a bottle of beer, and ownership of a knit cap and sunglasses — could not be matched to him. A man who had been pumping gasoline outside the convenience store where a clerk was shot and killed insisted that Mr. Chandler was not the perpetrator, but police largely ignored him, and he was not called to testify at trial. The police interrogator assumed from the outset that Mr. Chandler was guilty. Mr. Chandler said police used scare tactics to coerce a false confession.
The wrongful prison sentence stripped years from Mr. Chandler's life that can never be returned. It also forces the shooting victim's family to relive a nightmare that should have been closed years ago. But the biggest tragedy is that cases such as this are not a rarity in the United States.
The Innocence Project, whose Kentucky branch handled the Chandler case, says on its Web site that there have been 244 post-conviction exonerations since the venture was begun in 1992 in affiliation with Yeshiva University. Mr. Chandler's conviction seems typical of the miscarriages of justice that the project addresses. Seventy percent of the wrongfully convicted defendants are racial minorities (Mr. Chandler is black), for example, and 40 percent of the cases result in the real perpetrator being identified (a repeat offender has been indicted for the Louisville murder).
In the face of such statistics, it is appalling that the U.S. Supreme Court ruled in June that inmates in the six states that do not allow post-conviction access to DNA evidence cannot use federal civil rights laws to obtain advanced DNA testing. (The Chandler case was rectified based on fingerprints, but DNA produces most post-conviction reversals.)
The justice system is charged with getting things right — for the benefit of victims, defendants and society. The courts must recognize that this doesn't always happen, and do whatever it can, whenever it can, to prevent or reverse life-altering errors.
Saturday, October 10, 2009
Paul Craig Roberts: How the Feds Imprison the Innocent
The following article was originally published on October 5, 2009 at LewRockwell.com
How the Feds Imprison the Innocent
by Paul Craig Roberts
Authors of serious books seldom have cause to celebrate, but Larry Stratton and I have two reasons to open the champagne. Crown Publishing, a division of Random House, has announced a second printing of the second edition of The Tyranny of Good Intentions, and the noted civil libertarian and defense attorney, Harvey Silverglate, has just published a book covering many of the same legal cases and vetting our conclusion that in the United States every American is in grave danger from unscrupulous prosecutors who target the innocent.
For two decades I have been attempting to make Americans aware that the danger to their liberty comes not from foreign adversaries, terrorists, or criminals, but from prosecutors, who have destroyed law as a shield of the innocent and turned law into a weapon against the innocent. The Tyranny of Good Intentions (the publisher’s title) documents how the legal principles that protect our civil liberties were eroded by prosecutors even before the Bush regime obliterated what remained of the Bill of Rights.
The struggle has been uphill, because neither the right-wing nor the left-wing is emotionally content with the facts that Stratton and I present. Conservatives tend to see civil liberties as liberal coddling devices for criminals and, today, for terrorists. Predisposed to "law and order," conservatives align with police and prosecutors. They object to accounts of police misbehavior and prosecutorial abuse as propaganda in behalf of the criminal class.
The left-wing tends to see law as a tool of oppression that "the rich" use to control the lower classes, and liberals fret that "the rich" get off by hiring good lawyers, while the poor and minorities are ground under. Consequently, leftists object to the demonstration that even the very rich, such as Michael Milken, Martha Stewart, and Leona Helmsley, and even law and accounting firms, are victims of wrongful prosecution. Confusing wealth with villainy, leftists cannot free themselves from the emotional predilection that a convicted rich person must have been so guilty that not even the best lawyers could get them off.
The Tyranny of Good Intentions had a second printing of a second edition because of word of mouth, not because of reviews. Neither the right nor the left objects to wrongful prosecution as long as the victim is a bête noire. Sir Thomas More’s question (A Man For All Seasons) – what will happen to the innocent if we cut down the law in pursuit of devils? – rings no warning among right or left.
With this point made, I have come not to praise myself and my coauthor, but to praise Harvey Silverglate. If The Tyranny of Good Intentions cannot convince you, then perhaps Three Felonies A Day: How the Feds Target the Innocent can, and, if not, then both together surely will.
The Tyranny of Good Intentions is a broad stroke. It demonstrates how each civil liberty has been eroded away. Prosecutorial abuse is one chapter in the book.
Silverglate’s Three Felonies A Day focuses on how federal prosecutors invent creative interpretations of statutes, sometimes creating new felonies out of vague language or thin air, felonies never legislated by Congress. Federal criminal law is today so vast and so poorly worded that Silverglate reports, truthfully, that each of us, every American, commits three felonies every day without knowing it.
Federal judges, an increasing number of whom are former federal prosecutors, permit the prosecution of Americans for crimes that the defendants did not know were crimes, crimes that never before existed until the federal prosecutor brought the charge. The invention of crimes by prosecutors violates every known legal principle in Anglo-American law. Yet, it has become commonplace. Defense attorneys, a group that also increasingly consists of former federal prosecutors, as Silverglate accurately reports, have lost confidence that it is possible to defend a client from a federal prosecution and see their role, not as the defense, but as negotiator of a plea bargain that reduces the charges and prison time of the defendant, no matter how innocent.
Silverglate shows that many of the plea bargains create precedents that prosecutors can exploit to trap more innocent victims.
The reader by now is asking why prosecutors would waste time on the innocent when there are so many real crimes. Silverglate provides conclusive answers. For example, politically ambitious federal prosecutors, such as Rudy Giuliani and William Weld, pick high-profile targets to frame in order to build name recognition for political careers. Giuliani picked Michael Milken and Leona Helmsley. Weld picked Boston mayor Kevin White. Giuliani went on to be Mayor of New York and a candidate for the Republican presidential nomination. Weld went on to be a two-term governor of Massachusetts. Leura Canary, perhaps at the urging of Karl Rove, picked Alabama Governor Don Siegelman. Michael J. Sullivan picked Thomas Finneran, Speaker of the Massachusetts House of Representatives, and so on.
From Silverglate’s book, the reader can learn how federal prosecutors manage their frame-ups of innocents. For a targeted city or state political figure, the prosecutor first hunts for a criminal act somewhere in the bureaucracy. Perhaps some low-level person has extorted a bribe for a permit. Once such a person is caught, he or she is told that charges will be dropped if information is given that can be used to implicate the mayor or Speaker of the House or governor. As federal district court judges now permit hearsay and uncorroborated testimony, a totally innocent high-profile person can be snared on the basis of testimony by a petty crook low in the bureaucracy.
This is the way America works today. Just as state and local police cannot stand up to the FBI, elected state and local officials are powerless in the face of their pursuit by corrupt federal prosecutors.
Silverglate himself was the attorney in some of the landmark cases that he reports. The reader, even one with the usual illusions and delusions that blind Americans to their predicament, will be scared by Silverglate’s documented account, case by case, of how easy it is in "freedom and democracy" America to frame the totally innocent.
In Silverglate’s concluding chapter, "For Whom the Bell Tolls," the answer is obvious even to a naïf: "It tolls for all."
-----------------------------------------------------------------------------------
Paul Craig Roberts, a former Assistant Secretary of the US Treasury and former associate editor of the Wall Street Journal, has been reporting shocking cases of prosecutorial abuse for two decades. A new edition of his book, The Tyranny of Good Intentions, co-authored with Lawrence Stratton, a documented account of how Americans lost the protection of law, has been released by Random House.
How the Feds Imprison the Innocent
by Paul Craig Roberts
Authors of serious books seldom have cause to celebrate, but Larry Stratton and I have two reasons to open the champagne. Crown Publishing, a division of Random House, has announced a second printing of the second edition of The Tyranny of Good Intentions, and the noted civil libertarian and defense attorney, Harvey Silverglate, has just published a book covering many of the same legal cases and vetting our conclusion that in the United States every American is in grave danger from unscrupulous prosecutors who target the innocent.
For two decades I have been attempting to make Americans aware that the danger to their liberty comes not from foreign adversaries, terrorists, or criminals, but from prosecutors, who have destroyed law as a shield of the innocent and turned law into a weapon against the innocent. The Tyranny of Good Intentions (the publisher’s title) documents how the legal principles that protect our civil liberties were eroded by prosecutors even before the Bush regime obliterated what remained of the Bill of Rights.
The struggle has been uphill, because neither the right-wing nor the left-wing is emotionally content with the facts that Stratton and I present. Conservatives tend to see civil liberties as liberal coddling devices for criminals and, today, for terrorists. Predisposed to "law and order," conservatives align with police and prosecutors. They object to accounts of police misbehavior and prosecutorial abuse as propaganda in behalf of the criminal class.
The left-wing tends to see law as a tool of oppression that "the rich" use to control the lower classes, and liberals fret that "the rich" get off by hiring good lawyers, while the poor and minorities are ground under. Consequently, leftists object to the demonstration that even the very rich, such as Michael Milken, Martha Stewart, and Leona Helmsley, and even law and accounting firms, are victims of wrongful prosecution. Confusing wealth with villainy, leftists cannot free themselves from the emotional predilection that a convicted rich person must have been so guilty that not even the best lawyers could get them off.
The Tyranny of Good Intentions had a second printing of a second edition because of word of mouth, not because of reviews. Neither the right nor the left objects to wrongful prosecution as long as the victim is a bête noire. Sir Thomas More’s question (A Man For All Seasons) – what will happen to the innocent if we cut down the law in pursuit of devils? – rings no warning among right or left.
With this point made, I have come not to praise myself and my coauthor, but to praise Harvey Silverglate. If The Tyranny of Good Intentions cannot convince you, then perhaps Three Felonies A Day: How the Feds Target the Innocent can, and, if not, then both together surely will.
The Tyranny of Good Intentions is a broad stroke. It demonstrates how each civil liberty has been eroded away. Prosecutorial abuse is one chapter in the book.
Silverglate’s Three Felonies A Day focuses on how federal prosecutors invent creative interpretations of statutes, sometimes creating new felonies out of vague language or thin air, felonies never legislated by Congress. Federal criminal law is today so vast and so poorly worded that Silverglate reports, truthfully, that each of us, every American, commits three felonies every day without knowing it.
Federal judges, an increasing number of whom are former federal prosecutors, permit the prosecution of Americans for crimes that the defendants did not know were crimes, crimes that never before existed until the federal prosecutor brought the charge. The invention of crimes by prosecutors violates every known legal principle in Anglo-American law. Yet, it has become commonplace. Defense attorneys, a group that also increasingly consists of former federal prosecutors, as Silverglate accurately reports, have lost confidence that it is possible to defend a client from a federal prosecution and see their role, not as the defense, but as negotiator of a plea bargain that reduces the charges and prison time of the defendant, no matter how innocent.
Silverglate shows that many of the plea bargains create precedents that prosecutors can exploit to trap more innocent victims.
The reader by now is asking why prosecutors would waste time on the innocent when there are so many real crimes. Silverglate provides conclusive answers. For example, politically ambitious federal prosecutors, such as Rudy Giuliani and William Weld, pick high-profile targets to frame in order to build name recognition for political careers. Giuliani picked Michael Milken and Leona Helmsley. Weld picked Boston mayor Kevin White. Giuliani went on to be Mayor of New York and a candidate for the Republican presidential nomination. Weld went on to be a two-term governor of Massachusetts. Leura Canary, perhaps at the urging of Karl Rove, picked Alabama Governor Don Siegelman. Michael J. Sullivan picked Thomas Finneran, Speaker of the Massachusetts House of Representatives, and so on.
From Silverglate’s book, the reader can learn how federal prosecutors manage their frame-ups of innocents. For a targeted city or state political figure, the prosecutor first hunts for a criminal act somewhere in the bureaucracy. Perhaps some low-level person has extorted a bribe for a permit. Once such a person is caught, he or she is told that charges will be dropped if information is given that can be used to implicate the mayor or Speaker of the House or governor. As federal district court judges now permit hearsay and uncorroborated testimony, a totally innocent high-profile person can be snared on the basis of testimony by a petty crook low in the bureaucracy.
This is the way America works today. Just as state and local police cannot stand up to the FBI, elected state and local officials are powerless in the face of their pursuit by corrupt federal prosecutors.
Silverglate himself was the attorney in some of the landmark cases that he reports. The reader, even one with the usual illusions and delusions that blind Americans to their predicament, will be scared by Silverglate’s documented account, case by case, of how easy it is in "freedom and democracy" America to frame the totally innocent.
In Silverglate’s concluding chapter, "For Whom the Bell Tolls," the answer is obvious even to a naïf: "It tolls for all."
-----------------------------------------------------------------------------------
Paul Craig Roberts, a former Assistant Secretary of the US Treasury and former associate editor of the Wall Street Journal, has been reporting shocking cases of prosecutorial abuse for two decades. A new edition of his book, The Tyranny of Good Intentions, co-authored with Lawrence Stratton, a documented account of how Americans lost the protection of law, has been released by Random House.
Thursday, October 08, 2009
Guest Shot: No help for the innocent
The following editorial was published in the Detroit (MI) Free Press on October 8, 2009.
No help for the innocent
Freed after a wrongful conviction, ex-prisoners get no redress
By JEFF GERRITT
Had DeShawn Reed been paroled from prison, instead of walking out under a court order, the state would have given him $75, a bus ride home, and maybe a little help finding a job or apartment. Instead, the wrongly convicted prisoner got nada, after serving eight years of a 20-year sentence for assault with intent to murder. Reed, 34, of Ecorse, who's unemployed and living with his disabled mother, wasn't even eligible for a boost from the Michigan Prisoner Re-entry Initiative.
In July, Wayne County Circuit Judge Patricia Fresard threw out the conviction of Reed and his uncle Marvin Reed for a 2000 shooting that left Shannon Gholston a quadriplegic. Gholston recanted his testimony, and the Michigan Innocence Clinic at the University of Michigan Law School produced evidence that another man -- found dead with the gun that was used in Gholston's shooting -- was the shooter. On July 31, inmate number 376440 became a free man.
"At least someone should have apologized to my mother and kids," Reed, who had maintained his innocence in prison, told me last week. "I heard nothing from the governor, nothing from (Wayne County Prosecutor) Kym Worthy."
And nothing from the Michigan Department of Treasury.
Nearly 20 states now have laws granting compensation to people wrongly convicted. Even Texas, with an express lane to Death Row, pays $25,000 a year.
It's time this state did what politicians and the state Parole Board expect prisoners to do: Admit a mistake and own up to it.
A bill introduced by state Sen. Martha Scott, D-Highland Park, would bring Michigan in line with the federal Innocence Protection Act, which gives the wrongly convicted $50,000 for every year they were in prison. It would also make inmates with court-vacated convictions eligible for education benefits and court costs.
Wrongful convictions occur far more often than people realize, especially with Michigan's limp indigent defense system. Incontestable DNA or other compelling evidence reverses only a tiny fraction of wrongful conviction cases. Still, dozens of Michigan inmates have had convictions overturned, including the high-profile DNA exonerations of Kenneth Wyniemko, who served nine years for a rape he didn't commit, and Eddie Joe Lloyd, wrongly imprisoned for 17 years for rape and murder.
More are coming. The new Michigan Innocence Clinic may be the nation's sole innocence project that takes only non-DNA cases, said co-founder David Moran. The clinic is now pressing for the release of another prisoner, Karl Vinson, 54, who was wrongly convicted 23 years ago of rape.
Nothing can repay people for time spent in prison for a crime they didn't commit. Still, the government that carried out the injustice should help them get their lives back. The money acknowledges a wrong and gives much needed assistance to ex-inmates who have lost their assets and savings.
"Someone should pay," Reed told me. "It's really easy to go to prison for something you didn't do. Unless it happens to you or to someone you love, you don't think about it."
JEFF GERRITT is a Free Press editorial writer. Contact him at gerritt@freepress.com or 313-222-6585.
No help for the innocent
Freed after a wrongful conviction, ex-prisoners get no redress
By JEFF GERRITT
Had DeShawn Reed been paroled from prison, instead of walking out under a court order, the state would have given him $75, a bus ride home, and maybe a little help finding a job or apartment. Instead, the wrongly convicted prisoner got nada, after serving eight years of a 20-year sentence for assault with intent to murder. Reed, 34, of Ecorse, who's unemployed and living with his disabled mother, wasn't even eligible for a boost from the Michigan Prisoner Re-entry Initiative.
In July, Wayne County Circuit Judge Patricia Fresard threw out the conviction of Reed and his uncle Marvin Reed for a 2000 shooting that left Shannon Gholston a quadriplegic. Gholston recanted his testimony, and the Michigan Innocence Clinic at the University of Michigan Law School produced evidence that another man -- found dead with the gun that was used in Gholston's shooting -- was the shooter. On July 31, inmate number 376440 became a free man.
"At least someone should have apologized to my mother and kids," Reed, who had maintained his innocence in prison, told me last week. "I heard nothing from the governor, nothing from (Wayne County Prosecutor) Kym Worthy."
And nothing from the Michigan Department of Treasury.
Nearly 20 states now have laws granting compensation to people wrongly convicted. Even Texas, with an express lane to Death Row, pays $25,000 a year.
It's time this state did what politicians and the state Parole Board expect prisoners to do: Admit a mistake and own up to it.
A bill introduced by state Sen. Martha Scott, D-Highland Park, would bring Michigan in line with the federal Innocence Protection Act, which gives the wrongly convicted $50,000 for every year they were in prison. It would also make inmates with court-vacated convictions eligible for education benefits and court costs.
Wrongful convictions occur far more often than people realize, especially with Michigan's limp indigent defense system. Incontestable DNA or other compelling evidence reverses only a tiny fraction of wrongful conviction cases. Still, dozens of Michigan inmates have had convictions overturned, including the high-profile DNA exonerations of Kenneth Wyniemko, who served nine years for a rape he didn't commit, and Eddie Joe Lloyd, wrongly imprisoned for 17 years for rape and murder.
More are coming. The new Michigan Innocence Clinic may be the nation's sole innocence project that takes only non-DNA cases, said co-founder David Moran. The clinic is now pressing for the release of another prisoner, Karl Vinson, 54, who was wrongly convicted 23 years ago of rape.
Nothing can repay people for time spent in prison for a crime they didn't commit. Still, the government that carried out the injustice should help them get their lives back. The money acknowledges a wrong and gives much needed assistance to ex-inmates who have lost their assets and savings.
"Someone should pay," Reed told me. "It's really easy to go to prison for something you didn't do. Unless it happens to you or to someone you love, you don't think about it."
JEFF GERRITT is a Free Press editorial writer. Contact him at gerritt@freepress.com or 313-222-6585.
Guest Shot: 'Due process' often sends the innocent to jail
The following editorial was published in the Miami (FL) Herald on October 6, 2009.
'Due process' often sends the innocent to jail
By RONALD FRASER Guest Columnist
On paper at least, the Constitution's "due process" clause is the citizen's guarantee against wrongful conviction and imprisonment. But once inside a courtroom, all bets are off. Research shows that eyewitness misidentification, false confessions and government use of snitches as witnesses -- all part of due process -- too often put innocent people behind bars.
According to Innocence Project attorneys at the Cardozo School of Law in New York City, courts in 34 states have used DNA testing to reverse more than 230 criminal convictions and free wrongly convicted persons who, on average, spent 12 years in prison.
In Florida, 10 prior convictions have been nullified. The state's first reversal took place in 2000 but was too late to free Frank Lee Smith, who died of cancer in prison after serving 14 years for a murder he did not commit. In part, Smith was convicted based on eyewitness testimony that he was seen leaving the scene of the crime.
The latest reversal in Florida occurred in 2008 when, after serving 26 years in prison, William Dillon was cleared of a 1981 murder conviction. Prosecutors had used eyewitness testimony from a former girlfriend that placed Dillon at the crime scene and the testimony of a jailhouse snitch who said Dillon admitted guilt while in jail awaiting trial.
These cases expose serious breakdowns in America's justice systems. If the courtroom failures found in these cases are at work in all state and local justice systems, what good are constitutional guarantees?
Each year many thousands of cases are decided in which DNA evidence is not available as a technical check on the reliability of traditional evidence. In these cases a person's guilt or innocence may very well be determined by error-prone eyewitness testimony, unreliable forensic procedures, government snitches and false, self-incriminating statements often obtained under heavy duress.
"These DNA exoneration cases," says the Innocence Project, "have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed."
Eyewitness misidentification testimony was a factor in 74 percent of post-conviction DNA exoneration cases, making it the leading cause of these wrongful convictions. And two in five of these eyewitness identifications involved cross-racial identification. Studies have shown that people are less able to recognize faces of a different race than their own.
Traditional eyewitness identification procedures are known to give unintended clues that result in misidentifications. The project recommends using double-blind lineups, where neither the witness nor the lineup administrators know the suspect.
Invalidated forensic evidence played a role in about 50 percent of the wrongful convictions later overturned by DNA testing. Unlike DNA testing, which is based on solid scientific research, according to the project, other forensic techniques used in courtrooms, such as hair microscopy, bite-mark comparisons and shoe-print comparisons have never been subjected to rigorous scientific evaluation.
In addition to the need to validate all forensic techniques scientifically, the technicians using techniques that are already validated, such as blood typing, need to be well trained to ensure that test results are accurate.
False confessions lead to wrongful convictions in approximately 25 percent of the cases, many involving defendants under 18 years of age or younger or developmentally disabled persons. To prevent coercion and to provide an accurate record, all police interrogations should be electronically recorded, says the project. In homicide cases, the states of Illinois, Maine and New Mexico already require taping of interrogations.
Snitches contributed to wrongful conviction in 16 percent of the cases. Snitch testimony is unreliable because it may be offered in return for deals, special treatment or the dropping of charges. All communications between snitches and prosecutors should be recorded and judges should instruct juries that snitch testimony is unreliable.
Governments exist to protect the rights of individuals. But when federal, state and local government prosecutors and judges knowingly tolerate judicial processes that violate the constitutional rights of citizens they, themselves, become rights violators.
Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington- based civil liberties organization. E-mail: fraserr@erols.com
'Due process' often sends the innocent to jail
By RONALD FRASER Guest Columnist
On paper at least, the Constitution's "due process" clause is the citizen's guarantee against wrongful conviction and imprisonment. But once inside a courtroom, all bets are off. Research shows that eyewitness misidentification, false confessions and government use of snitches as witnesses -- all part of due process -- too often put innocent people behind bars.
According to Innocence Project attorneys at the Cardozo School of Law in New York City, courts in 34 states have used DNA testing to reverse more than 230 criminal convictions and free wrongly convicted persons who, on average, spent 12 years in prison.
In Florida, 10 prior convictions have been nullified. The state's first reversal took place in 2000 but was too late to free Frank Lee Smith, who died of cancer in prison after serving 14 years for a murder he did not commit. In part, Smith was convicted based on eyewitness testimony that he was seen leaving the scene of the crime.
The latest reversal in Florida occurred in 2008 when, after serving 26 years in prison, William Dillon was cleared of a 1981 murder conviction. Prosecutors had used eyewitness testimony from a former girlfriend that placed Dillon at the crime scene and the testimony of a jailhouse snitch who said Dillon admitted guilt while in jail awaiting trial.
These cases expose serious breakdowns in America's justice systems. If the courtroom failures found in these cases are at work in all state and local justice systems, what good are constitutional guarantees?
Each year many thousands of cases are decided in which DNA evidence is not available as a technical check on the reliability of traditional evidence. In these cases a person's guilt or innocence may very well be determined by error-prone eyewitness testimony, unreliable forensic procedures, government snitches and false, self-incriminating statements often obtained under heavy duress.
"These DNA exoneration cases," says the Innocence Project, "have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed."
Eyewitness misidentification testimony was a factor in 74 percent of post-conviction DNA exoneration cases, making it the leading cause of these wrongful convictions. And two in five of these eyewitness identifications involved cross-racial identification. Studies have shown that people are less able to recognize faces of a different race than their own.
Traditional eyewitness identification procedures are known to give unintended clues that result in misidentifications. The project recommends using double-blind lineups, where neither the witness nor the lineup administrators know the suspect.
Invalidated forensic evidence played a role in about 50 percent of the wrongful convictions later overturned by DNA testing. Unlike DNA testing, which is based on solid scientific research, according to the project, other forensic techniques used in courtrooms, such as hair microscopy, bite-mark comparisons and shoe-print comparisons have never been subjected to rigorous scientific evaluation.
In addition to the need to validate all forensic techniques scientifically, the technicians using techniques that are already validated, such as blood typing, need to be well trained to ensure that test results are accurate.
False confessions lead to wrongful convictions in approximately 25 percent of the cases, many involving defendants under 18 years of age or younger or developmentally disabled persons. To prevent coercion and to provide an accurate record, all police interrogations should be electronically recorded, says the project. In homicide cases, the states of Illinois, Maine and New Mexico already require taping of interrogations.
Snitches contributed to wrongful conviction in 16 percent of the cases. Snitch testimony is unreliable because it may be offered in return for deals, special treatment or the dropping of charges. All communications between snitches and prosecutors should be recorded and judges should instruct juries that snitch testimony is unreliable.
Governments exist to protect the rights of individuals. But when federal, state and local government prosecutors and judges knowingly tolerate judicial processes that violate the constitutional rights of citizens they, themselves, become rights violators.
Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington- based civil liberties organization. E-mail: fraserr@erols.com
Wednesday, October 07, 2009
Guest Shot: Why Wrongful Convictions Must Decrease
Why Wrongful Convictions Must Decrease
by Adrienne Carlson
It’s worse when an innocent person is convicted than when a guilty one is let free, as any victim of a wrongful conviction will tell you. When you know in your heart that you’re innocent, when the system has worked against you simply because you were unlucky enough to be in the wrong place at the wrong time, you feel a burning sense of anger and helplessness at the criminal justice system that ruined your life. Wrongful convictions are now being overthrown with the surfacing of new evidence, mainly where DNA is available and can clear innocent people of crimes they had been convicted for when forensic science was not as developed as it is now.
While the guilty must be punished, the innocent must not be convicted, and the number of wrongful convictions must decrease because:
• They let the guilty party get away: This is the worst side effect of wrongful convictions – when an innocent person is convicted, it automatically implies that the one guilty of the crime goes scot-free. This allows him or her to continue to perpetrate crimes and bringing disaster to the lives of many others. When law enforcement officers let down their guard thinking that they have the guilty person, the one who actually committed the crime becomes emboldened to continue to hurt more innocent people.
• They ruin lives: The conviction of an innocent person is devastating for the victim and their family. Their entire lives are changed; for the victim, a life in jail is torture and sheer misery – he or she is not used to the rigors of the system and are broken mentally and physically by the time they complete their sentence or are released for good behavior or by new evidence which helps in their exoneration. As for the families, they are treated as outcasts by society and are shunned in their social and other circles. Their lives are never the same again, and even if the victim is exonerated, in the eyes of society, he or she is branded a criminal for life.
• They erode confidence in the legal system: When wrongful convictions happen, they decrease the confidence that the public has in the legal and criminal justice system. People start to believe that the system is deficient and full of faults; they are hesitant to report crimes and other offenses because they do not believe in the ability of the law enforcement officers to bring the right person to book.
• They dilute the authority of law enforcement officers: Most wrongful convictions happen because of cops and other law enforcement officers who do not do their job correctly and are misled by evidence that points to the wrong person. All they are interested in is convicting someone, and to them, it need not be the guilty party. Others are guilty of not investigating enough to find the real criminal. This dilutes their standing as authoritative figures in the public eye, and the entire community of law enforcement takes a beating.
By-line:
This guest article was written by Adrienne Carlson, who regularly writes on the topic of forensic scientist schools. Adrienne welcomes your comments and questions at her email address: adrienne.carlson83@yahoo.com
by Adrienne Carlson
It’s worse when an innocent person is convicted than when a guilty one is let free, as any victim of a wrongful conviction will tell you. When you know in your heart that you’re innocent, when the system has worked against you simply because you were unlucky enough to be in the wrong place at the wrong time, you feel a burning sense of anger and helplessness at the criminal justice system that ruined your life. Wrongful convictions are now being overthrown with the surfacing of new evidence, mainly where DNA is available and can clear innocent people of crimes they had been convicted for when forensic science was not as developed as it is now.
While the guilty must be punished, the innocent must not be convicted, and the number of wrongful convictions must decrease because:
• They let the guilty party get away: This is the worst side effect of wrongful convictions – when an innocent person is convicted, it automatically implies that the one guilty of the crime goes scot-free. This allows him or her to continue to perpetrate crimes and bringing disaster to the lives of many others. When law enforcement officers let down their guard thinking that they have the guilty person, the one who actually committed the crime becomes emboldened to continue to hurt more innocent people.
• They ruin lives: The conviction of an innocent person is devastating for the victim and their family. Their entire lives are changed; for the victim, a life in jail is torture and sheer misery – he or she is not used to the rigors of the system and are broken mentally and physically by the time they complete their sentence or are released for good behavior or by new evidence which helps in their exoneration. As for the families, they are treated as outcasts by society and are shunned in their social and other circles. Their lives are never the same again, and even if the victim is exonerated, in the eyes of society, he or she is branded a criminal for life.
• They erode confidence in the legal system: When wrongful convictions happen, they decrease the confidence that the public has in the legal and criminal justice system. People start to believe that the system is deficient and full of faults; they are hesitant to report crimes and other offenses because they do not believe in the ability of the law enforcement officers to bring the right person to book.
• They dilute the authority of law enforcement officers: Most wrongful convictions happen because of cops and other law enforcement officers who do not do their job correctly and are misled by evidence that points to the wrong person. All they are interested in is convicting someone, and to them, it need not be the guilty party. Others are guilty of not investigating enough to find the real criminal. This dilutes their standing as authoritative figures in the public eye, and the entire community of law enforcement takes a beating.
By-line:
This guest article was written by Adrienne Carlson, who regularly writes on the topic of forensic scientist schools. Adrienne welcomes your comments and questions at her email address: adrienne.carlson83@yahoo.com
Tuesday, October 06, 2009
Charlotte (NC) News & Observer Editorial
The following editorial was published in the Charlotte (NC) News & Observer on October 6, 2009.
Not pretty
A $3.9 million settlement by the SBI and its insurance companies may offer lifetime security for Alan Gell, a Bertie County man (he's now 35) who was charged with murder in 1995, sentenced to death, and then acquitted in a new trial in 2004. But the Gell case itself cast disturbing clouds over a justice system that managed to put Gell's life in jeopardy because of what appears to be seriously flawed investigative work on the part of the State Bureau of Investigation and prosecutors too eager to obtain a conviction.
Those prosecutors, David Hoke and Debra Graves of the state Attorney General's Office, were reprimanded by the State Bar for withholding evidence and not reading their files. A suit by Gell against the prosecutors was dismissed because they enjoyed absolute immunity under the law.
SBI investigator Dwight Ransome, however, was seen by his attorney to be at risk in a suit, and so a settlement was made.
The News & Observer's Joseph Neff, whose 2002 series, "Time of Death," on the murder of retired truck driver Allen Ray Jenkins and Gell's wrongful conviction in that murder helped to bring about the new trial, reported last week on the settlement and then on Ransome's conduct of the investigation. It was not a pretty picture.
Ransome, who joined the SBI in 1983, has conducted more than 50 murder investigations, including the Jenkins case. The victim, a former truck driver known for wild parties and trading drugs for sex, was killed in April of 1995 in Aulander, a Bertie town in northeastern North Carolina.
Ransome pegged Gell for the crime based on what two teenage girls said at the time. The testimony of one of them was the only evidence that supposedly tied Gell to the murder.
What didn't tie him to the slaying were statements from 17 other witnesses who said they had seen Jenkins alive after the date Gell was alleged to have killed him. That was important, because Gell was either in jail or out of state on the days these witnesses said they'd seen Jenkins. Despite those statements, Ransome, who is still with the SBI but no longer conducting investigations, pressed on. Gell was tried and convicted.
The investigation was sloppy by a veteran SBI agent, and that's disturbing. Prosecutors did not cover themselves in glory, and that's equally disturbing. But most disturbing of all, in terms of seriously calling into question the fairness of the justice system, is that Alan Gell might have been put to death by the state. (He's now in prison serving time for having sex with a 15-year-old girlfriend.)
The way this case was handled was disgraceful, but what might have been a grave outcome amplifies the magnitude of mistakes made and frankly demands a vast review of other investigations in which Ransome might have been involved.
Alan Gell might have been a troubled young man, but he didn't deserve to die for a crime for which all sorts of doubts as to his guilt were in play. The district attorney of Bertie County has since said he probably would not have ever charged Gell if he'd known about all the evidence in his favor.
For state officials, including Attorney General Roy Cooper, the financial settlement should not be the end of this. Not if he and others involved in the case, and in other cases ongoing all over the state, wish to restore confidence in the system and their own credibility.
Not pretty
A $3.9 million settlement by the SBI and its insurance companies may offer lifetime security for Alan Gell, a Bertie County man (he's now 35) who was charged with murder in 1995, sentenced to death, and then acquitted in a new trial in 2004. But the Gell case itself cast disturbing clouds over a justice system that managed to put Gell's life in jeopardy because of what appears to be seriously flawed investigative work on the part of the State Bureau of Investigation and prosecutors too eager to obtain a conviction.
Those prosecutors, David Hoke and Debra Graves of the state Attorney General's Office, were reprimanded by the State Bar for withholding evidence and not reading their files. A suit by Gell against the prosecutors was dismissed because they enjoyed absolute immunity under the law.
SBI investigator Dwight Ransome, however, was seen by his attorney to be at risk in a suit, and so a settlement was made.
The News & Observer's Joseph Neff, whose 2002 series, "Time of Death," on the murder of retired truck driver Allen Ray Jenkins and Gell's wrongful conviction in that murder helped to bring about the new trial, reported last week on the settlement and then on Ransome's conduct of the investigation. It was not a pretty picture.
Ransome, who joined the SBI in 1983, has conducted more than 50 murder investigations, including the Jenkins case. The victim, a former truck driver known for wild parties and trading drugs for sex, was killed in April of 1995 in Aulander, a Bertie town in northeastern North Carolina.
Ransome pegged Gell for the crime based on what two teenage girls said at the time. The testimony of one of them was the only evidence that supposedly tied Gell to the murder.
What didn't tie him to the slaying were statements from 17 other witnesses who said they had seen Jenkins alive after the date Gell was alleged to have killed him. That was important, because Gell was either in jail or out of state on the days these witnesses said they'd seen Jenkins. Despite those statements, Ransome, who is still with the SBI but no longer conducting investigations, pressed on. Gell was tried and convicted.
The investigation was sloppy by a veteran SBI agent, and that's disturbing. Prosecutors did not cover themselves in glory, and that's equally disturbing. But most disturbing of all, in terms of seriously calling into question the fairness of the justice system, is that Alan Gell might have been put to death by the state. (He's now in prison serving time for having sex with a 15-year-old girlfriend.)
The way this case was handled was disgraceful, but what might have been a grave outcome amplifies the magnitude of mistakes made and frankly demands a vast review of other investigations in which Ransome might have been involved.
Alan Gell might have been a troubled young man, but he didn't deserve to die for a crime for which all sorts of doubts as to his guilt were in play. The district attorney of Bertie County has since said he probably would not have ever charged Gell if he'd known about all the evidence in his favor.
For state officials, including Attorney General Roy Cooper, the financial settlement should not be the end of this. Not if he and others involved in the case, and in other cases ongoing all over the state, wish to restore confidence in the system and their own credibility.
Thursday, October 01, 2009
Houston Chronicle Editorial: Bad Smell
The following Houston Chronicle editorial was published on September 30, 2009.
Bad smell
We love dogs, but we have our limits. We don't think they should be allowed to vote, hold public office or provide court testimony.
The problem is, that last bit — the part about court testimony — isn't a joke. Like most other states, Texas allows its courts to use evidence from “scent lineups,” in which dogs supposedly match a suspect's scent to items found at a crime scene.
A new report by the Innocence Project of Texas shows that scent lineups don't pass the smell test. Whether accidentally or on purpose, it's easy for handlers to cue eager-to-please dogs to give whatever answer the handler wants. Experts say that rigorously trained dogs, working under perfect conditions, are right only about 85 percent of the time. And because so few dog-and-handler teams could perform the lineups successfully, the National Police Bloodhound Association no longer teaches dog handlers how to do them.
The Innocence Project proclaims scent lineups “junk science,” and in some depth, the report describes the career of dog handler Keith Pikett, a deputy with the Fort Bend County Sheriff's Department who's done scent lineups all over Texas.
The report tells a disturbing story. Earlier this year, based on scent matches from Pikett's dogs, a man was charged with rape and robbery in Yoakum County — but DNA evidence later cleared him. After a 2006 Pikett scent lineup, a man was named the prime suspect in a Victoria murder — but then someone else confessed to it. Yet another Pikett scent lineup following a 2007 string of Houston burglaries led to an incorrect arrest. Vic Wisner, the Harris County prosecutor in charge of that case, was so disgusted that he e-mailed other prosecutors to warn them about Pikett.
In relation to a recent lawsuit against Pikett, Bob Coote, formerly the United Kingdom's head of police-dog training, reviewed a tape of one of Pikett's scent lineups. Coote called it “the most primitive evidential police procedure I have ever witnessed.”
He added: “I could have been watching a comedy.”
We wish that he had been. Dogs doing human stuff can be hilarious. (Where would YouTube be without canine skateboarding?) But in a courtroom, their evidence isn't funny at all.
Bad smell
We love dogs, but we have our limits. We don't think they should be allowed to vote, hold public office or provide court testimony.
The problem is, that last bit — the part about court testimony — isn't a joke. Like most other states, Texas allows its courts to use evidence from “scent lineups,” in which dogs supposedly match a suspect's scent to items found at a crime scene.
A new report by the Innocence Project of Texas shows that scent lineups don't pass the smell test. Whether accidentally or on purpose, it's easy for handlers to cue eager-to-please dogs to give whatever answer the handler wants. Experts say that rigorously trained dogs, working under perfect conditions, are right only about 85 percent of the time. And because so few dog-and-handler teams could perform the lineups successfully, the National Police Bloodhound Association no longer teaches dog handlers how to do them.
The Innocence Project proclaims scent lineups “junk science,” and in some depth, the report describes the career of dog handler Keith Pikett, a deputy with the Fort Bend County Sheriff's Department who's done scent lineups all over Texas.
The report tells a disturbing story. Earlier this year, based on scent matches from Pikett's dogs, a man was charged with rape and robbery in Yoakum County — but DNA evidence later cleared him. After a 2006 Pikett scent lineup, a man was named the prime suspect in a Victoria murder — but then someone else confessed to it. Yet another Pikett scent lineup following a 2007 string of Houston burglaries led to an incorrect arrest. Vic Wisner, the Harris County prosecutor in charge of that case, was so disgusted that he e-mailed other prosecutors to warn them about Pikett.
In relation to a recent lawsuit against Pikett, Bob Coote, formerly the United Kingdom's head of police-dog training, reviewed a tape of one of Pikett's scent lineups. Coote called it “the most primitive evidential police procedure I have ever witnessed.”
He added: “I could have been watching a comedy.”
We wish that he had been. Dogs doing human stuff can be hilarious. (Where would YouTube be without canine skateboarding?) But in a courtroom, their evidence isn't funny at all.
Monday, September 21, 2009
LA Times Editorial: Making forensic science scientific
The following editorial was published by the Los Angeles Times on September 21, 2009.
Making forensic science scientific
Establishing national forensic science standards is crucial when evidence determines life or death.
September 21, 2009
With the busiest death chamber in the nation, it was only a matter of time before Texas positioned itself to become the first state to admit that it executed a person who was wrongfully convicted. And now that day is at hand.
According to a nationally respected fire engineer, the so-called scientific evidence used to convict Cameron Todd Willingham of setting a blaze that killed his three daughters in 1995 was not scientific at all. In his scathing report to the Texas Forensic Science Commission, Craig Beyler found that the arson investigators on the case had a poor understanding of fire dynamics and based their conclusions on erroneous assumptions, sloppy research and a dash of mysticism. For example, one investigator determined that, because the house fire burned "hot and fast," an accelerant such as gasoline had been used to set it. But that theory -- still given credence in some investigatory circles -- is not factual. Gasoline fires are not significantly hotter than those started with wood, Beyler reported.
Willingham's case is heartbreaking: He lost his children to fire and his wife to divorce, spent 12 years in prison and died still protesting his innocence. But his is not an isolated case. There are thousands of Willinghams in prisons across the country. If not on death row, they are nonetheless serving decades-long or even life sentences after having been convicted on the basis of erroneous scientific conclusions made by poorly trained "experts."
In 2006, Congress charged the National Academy of Sciences with studying the application of forensic science in the U.S. judicial system. Its findings, released last year, are grim. Almost every branch of forensics but DNA testing -- hair and fiber analysis, arson investigations, comparisons of bite marks -- lacks the extensive scientific research and established standards to be used in court conclusively.
Consider: Last year, the Innocence Project, a New York-based public policy and litigation organization, helped exonerate Kennedy Brewer, a Mississippi man who had been convicted in 1992 of raping and killing a 3-year-old girl. DNA testing was not available at the time, and the primary evidence against him was that bite marks on the child's body matched his teeth. Examination of the marks by national forensics experts determined that they were not even made by a human mouth: Her body had been dumped in a pond and insects had attacked it. Subsequent DNA testing also excluded Brewer as the rapist.
In February, the science academy issued a report calling for Congress to create a national institute of forensic science, and there is more than enough evidence that one is desperately needed. As an independent agency, not part of the Justice Department, it would be charged with conducting research, setting national standards for forensic disciplines and enforcing those standards. Right now, standards vary wildly. An expert in San Diego, for example, might testify that a fiber is similar to one found at a crime scene, while an expert in San Bernardino might testify that a match is impossible to determine.
Advances in forensics have revolutionized the judicial system, aiding both prosecutors and defense attorneys, exonerating the innocent and confirming the guilty in ways that were impossible just a generation ago. The patchwork state of forensic science should not become an excuse to shy away from its use; rather, the nation should invest in the rigorous research required to standardize techniques and application.
The Senate Judiciary Committee held hearings on the science academy's recommendations this month, and it is to be hoped that the end result is a national forensics institute. The fate of thousands hangs on the correct analysis of a thread, a hair, the fibers of a rug. We can do better by them, even if it's too late for Willingham.
Making forensic science scientific
Establishing national forensic science standards is crucial when evidence determines life or death.
September 21, 2009
With the busiest death chamber in the nation, it was only a matter of time before Texas positioned itself to become the first state to admit that it executed a person who was wrongfully convicted. And now that day is at hand.
According to a nationally respected fire engineer, the so-called scientific evidence used to convict Cameron Todd Willingham of setting a blaze that killed his three daughters in 1995 was not scientific at all. In his scathing report to the Texas Forensic Science Commission, Craig Beyler found that the arson investigators on the case had a poor understanding of fire dynamics and based their conclusions on erroneous assumptions, sloppy research and a dash of mysticism. For example, one investigator determined that, because the house fire burned "hot and fast," an accelerant such as gasoline had been used to set it. But that theory -- still given credence in some investigatory circles -- is not factual. Gasoline fires are not significantly hotter than those started with wood, Beyler reported.
Willingham's case is heartbreaking: He lost his children to fire and his wife to divorce, spent 12 years in prison and died still protesting his innocence. But his is not an isolated case. There are thousands of Willinghams in prisons across the country. If not on death row, they are nonetheless serving decades-long or even life sentences after having been convicted on the basis of erroneous scientific conclusions made by poorly trained "experts."
In 2006, Congress charged the National Academy of Sciences with studying the application of forensic science in the U.S. judicial system. Its findings, released last year, are grim. Almost every branch of forensics but DNA testing -- hair and fiber analysis, arson investigations, comparisons of bite marks -- lacks the extensive scientific research and established standards to be used in court conclusively.
Consider: Last year, the Innocence Project, a New York-based public policy and litigation organization, helped exonerate Kennedy Brewer, a Mississippi man who had been convicted in 1992 of raping and killing a 3-year-old girl. DNA testing was not available at the time, and the primary evidence against him was that bite marks on the child's body matched his teeth. Examination of the marks by national forensics experts determined that they were not even made by a human mouth: Her body had been dumped in a pond and insects had attacked it. Subsequent DNA testing also excluded Brewer as the rapist.
In February, the science academy issued a report calling for Congress to create a national institute of forensic science, and there is more than enough evidence that one is desperately needed. As an independent agency, not part of the Justice Department, it would be charged with conducting research, setting national standards for forensic disciplines and enforcing those standards. Right now, standards vary wildly. An expert in San Diego, for example, might testify that a fiber is similar to one found at a crime scene, while an expert in San Bernardino might testify that a match is impossible to determine.
Advances in forensics have revolutionized the judicial system, aiding both prosecutors and defense attorneys, exonerating the innocent and confirming the guilty in ways that were impossible just a generation ago. The patchwork state of forensic science should not become an excuse to shy away from its use; rather, the nation should invest in the rigorous research required to standardize techniques and application.
The Senate Judiciary Committee held hearings on the science academy's recommendations this month, and it is to be hoped that the end result is a national forensics institute. The fate of thousands hangs on the correct analysis of a thread, a hair, the fibers of a rug. We can do better by them, even if it's too late for Willingham.
Wednesday, September 16, 2009
Guest Shot: A missed chance for compassion
The following commentary was originally published in the Philadelphia Inquirer on September 14, 2009.
Commentary
A missed chance for compassion
An American Indian activist is denied parole. The sad fact: Nobody notices.
By David Biddle
Saturday was Leonard Peltier's 65th birthday, and he has spent almost half his life in jail.
Peltier, an American Indian Movement (AIM) activist, has been in prison since 1977, found guilty of executing two FBI agents during a shootout at Pine Ridge Reservation in South Dakota.
His case is marred by allegations of witness coercion, judicial fiat, FBI incompetence, and an anti-Indian vigilante mentality. Those of us who followed the militant days of AIM waited hopefully on July 28 for the parole commission to determine whether Peltier had finally paid his dues to society.
Federal parole eligibility for life sentence offenders does not mean freedom or exoneration; it means serving the remainder of a life sentence under supervision of one's community. Eric Seitz, Peltier's attorney, said that his client spoke for more than an hour with "great eloquence . . . we thought it went very well."
Peltier represents one of America's most complex and controversial face-offs between the law-and-order perspective and minority community rights. June 26, 1975, was the culmination of a three-year mini-war between traditionalist and assimilationist factions on the reservation. The assimilationists were using vigilante enforcers to terrorize the traditionalists. AIM, a nationally recognized Indian's rights group that used civil disobedience - and, in those days, weapons - was called in to protect the traditionalists.
The details of that day are twisted now in myth, legend, and distortion - on both sides. We know that two young FBI agents, Jack Coler and Ronald Williams, followed a truck in separate cars onto the Jumping Bull compound and that the truck's occupants eventually jumped out and opened fire on the agents from high ground. Both agents were wounded in this first volley. The truck occupants were joined by a number of AIM members staying in tents on the compound. All were armed, many with high-powered rifles.
Some time after wounding the agents, Peltier and two other AIM members went down to the cars. This is where the story gets twisted up. The government prosecuted Peltier using circumstantial evidence to prove he executed the agents at point-blank range. Peltier and others who were there that day say the agents had already been shot. An AIM member was also killed in the shootout. His death was never investigated. There is no question that this was a senseless, destructive scene arising out of a time of great frustration and fear.
On Aug. 21, we learned that Peltier had been denied parole. The Associated Press offered a brief synopsis of the decision, but few mainstream publications printed this. Most national broadcast outlets posted the AP story online, but offered no TV or radio coverage.
How could Peltier's parole hearing not stir the national media into at least a small frenzy? Forget which side is right. The outcome of that hearing was real news. Peltier's case is the most poignant and powerful reminder of what this society has done to Indian tribes for nearly half a millennium - also what Indians have done to themselves. And we choose, sadly, to ignore all of this.
To grant Peltier parole was an opportunity, albeit very small, for the United States to begin to turn the page on its history with Native America - to show mercy and compassion. Why was this opportunity not news?
But even the denial of parole was a story: law and order trumps human rights; punishment vs. rehabilitation; forgetting the FBI's dark record; one man's political prisoner is another's thug.
What does virtually ignoring this case say about the media? About us as a nation? Do we just not care? Is all that Indian stuff now just water under the bridge?
Media companies are very concerned about profits these days. Maybe if there were more concern about covering issues that no one knows about, rather than issues where everyone thinks he knows everything, people would buy more papers.
--------------------------------------------------------------------------------
David Biddle writes the blog "The Formality of Occurrence" at www.formalityoccurrence.blogspot.com.
Commentary
A missed chance for compassion
An American Indian activist is denied parole. The sad fact: Nobody notices.
By David Biddle
Saturday was Leonard Peltier's 65th birthday, and he has spent almost half his life in jail.
Peltier, an American Indian Movement (AIM) activist, has been in prison since 1977, found guilty of executing two FBI agents during a shootout at Pine Ridge Reservation in South Dakota.
His case is marred by allegations of witness coercion, judicial fiat, FBI incompetence, and an anti-Indian vigilante mentality. Those of us who followed the militant days of AIM waited hopefully on July 28 for the parole commission to determine whether Peltier had finally paid his dues to society.
Federal parole eligibility for life sentence offenders does not mean freedom or exoneration; it means serving the remainder of a life sentence under supervision of one's community. Eric Seitz, Peltier's attorney, said that his client spoke for more than an hour with "great eloquence . . . we thought it went very well."
Peltier represents one of America's most complex and controversial face-offs between the law-and-order perspective and minority community rights. June 26, 1975, was the culmination of a three-year mini-war between traditionalist and assimilationist factions on the reservation. The assimilationists were using vigilante enforcers to terrorize the traditionalists. AIM, a nationally recognized Indian's rights group that used civil disobedience - and, in those days, weapons - was called in to protect the traditionalists.
The details of that day are twisted now in myth, legend, and distortion - on both sides. We know that two young FBI agents, Jack Coler and Ronald Williams, followed a truck in separate cars onto the Jumping Bull compound and that the truck's occupants eventually jumped out and opened fire on the agents from high ground. Both agents were wounded in this first volley. The truck occupants were joined by a number of AIM members staying in tents on the compound. All were armed, many with high-powered rifles.
Some time after wounding the agents, Peltier and two other AIM members went down to the cars. This is where the story gets twisted up. The government prosecuted Peltier using circumstantial evidence to prove he executed the agents at point-blank range. Peltier and others who were there that day say the agents had already been shot. An AIM member was also killed in the shootout. His death was never investigated. There is no question that this was a senseless, destructive scene arising out of a time of great frustration and fear.
On Aug. 21, we learned that Peltier had been denied parole. The Associated Press offered a brief synopsis of the decision, but few mainstream publications printed this. Most national broadcast outlets posted the AP story online, but offered no TV or radio coverage.
How could Peltier's parole hearing not stir the national media into at least a small frenzy? Forget which side is right. The outcome of that hearing was real news. Peltier's case is the most poignant and powerful reminder of what this society has done to Indian tribes for nearly half a millennium - also what Indians have done to themselves. And we choose, sadly, to ignore all of this.
To grant Peltier parole was an opportunity, albeit very small, for the United States to begin to turn the page on its history with Native America - to show mercy and compassion. Why was this opportunity not news?
But even the denial of parole was a story: law and order trumps human rights; punishment vs. rehabilitation; forgetting the FBI's dark record; one man's political prisoner is another's thug.
What does virtually ignoring this case say about the media? About us as a nation? Do we just not care? Is all that Indian stuff now just water under the bridge?
Media companies are very concerned about profits these days. Maybe if there were more concern about covering issues that no one knows about, rather than issues where everyone thinks he knows everything, people would buy more papers.
--------------------------------------------------------------------------------
David Biddle writes the blog "The Formality of Occurrence" at www.formalityoccurrence.blogspot.com.
Sunday, September 06, 2009
Bill Lueders: Justice is everybody's business
The following editorial was published in the September 3, 2009 issue of the Isthmus, Madison, Wisconsin. Bill Lueders is News Editor of the Isthmus.
Justice is everybody's business
The public needs to hold police and prosecutors accountable
Bill Lueders on Thursday 09/03/2009
In April 2008 I wrote a web article about an astonishing legal filing in the Ralph Armstrong case. It alleged that a Dane County prosecutor, by then retired, not only failed to investigate a tip that pointed to a wrongful conviction but set out to destroy evidence that might have proven this.
The article did not take sides. It merely reported what the filing alleged: In the mid-1990s, Dane County prosecutor John Norsetter was contacted by a woman from Texas who said Steve Armstrong had admitted to the 1980 rape and murder of which his brother Ralph was convicted.
Accompanying the filing were detailed affidavits from two women who described this confession, and their efforts to call attention to it. One of them purportedly spoke to Norsetter, Ralph Armstrong's original prosecutor.
Norsetter failed to pass on this information and in 2006 ordered testing that destroyed what remained of a DNA sample, in violation of an existing court order.
Steve Armstrong died in 2005, the same year that the state Supreme Court overturned Ralph Armstrong's conviction on other grounds. He was awaiting retrial when the revelations about his brother came to light.
My article promoted an outraged reaction — but not the sort you might expect.
"Sure we've had our share of mistaken convictions and overzealous prosecution in Dane County, but this is one [case] where people need to tread carefully," wrote one poster on TheDailyPage.com Forum. "What I see is Leuders [real accuracy buff here] being used by Armstrong's defense attorneys in a PR campaign to make Armstrong look like a victim of a corrupt DA.... Shame on you Leuders and shame on Isthmus." Other respondents voiced similar criticisms.
In late July, Reserve Judge Robert Kinney, having heard the allegations against Norsetter, as well as a vigorous defense of his actions by the state, agreed that "a series of conscious decisions" had tainted the conviction beyond redemption. He dismissed the charges, a decision the DA's office has decided not to appeal.
Ralph Armstrong, who has always maintained his innocence (even though it's meant a longer sentence), is on his way to becoming a free man, due to prosecutorial actions Isthmus was skewered for even mentioning.
I tell this story because it points to a larger issue, one that ought to concern the entire community.
Ordinary citizens and even political leaders rarely challenge the criminal justice system, no matter how often we're reminded of its fallibility. Even folks who flock to public meetings on other local issues sit on their hands when it comes to prosecutors and police.
It's a real problem.
Already, we give these people vast powers — to arrest, to prosecute, to overlook transgression, to deprive of liberty — and immunize them from most lawsuits when they screw up. And then, on top of that, we spare them the bother of having to explain themselves. Indeed, the most common public reaction to allegations of injustice is to reflexively defend the system, as though it were too fragile to withstand scrutiny.
In announcing that it was not appealing Judge Kinney's decision, the Dane County District Attorney's Office issued a statement, which read in part:
"[The] record demonstrates that prosecuting attorneys and their colleagues in the Madison Police Department pursued this case in good faith at every stage of the process, and that any errors that occurred during the course of the investigation and prosecution were the product of innocent mistake or oversight."
That settles that. Thanks.
Except, as Columbo might say, for one little thing: Norsetter heard from a woman who said Steve Armstrong had credibly confessed, providing explicit details. He later ordered a DNA test that could not distinguish between brothers but used up the sample.
What makes the system so certain this was an innocent mistake?
Even if it were, that doesn't eliminate the need for answers and accountability. Where are the editorials from Neil Heinen and the dailies? Why hasn't noted local blogger Dave Cieslewicz weighed in?
Because the justice system always gets a pass. We snooze, we lose.
A decade ago I wrote several articles about a 15-year-old girl who was charged with a crime for slightly changing her account of a sexual assault. The person she accused was convicted of a crime. So was the girl's father, for calling her a slut and beating her up after the DA's charges were filed.
Dane County Judge Maryann Sumi dismissed the charge against the girl and chided the DA's office for bringing it. Then it was up to the community to respond. So far as I know, only one person did. Madison resident Moria Cue circulated a petition expressing outrage. She ultimately forced a high-level meeting with the DA's office, and I believe made it less likely that future rape victims will be treated this way.
We need police and prosecutors, and no community has more honorable people at the helm than Madison Police Chief Noble Wray and Dane County DA Brian Blanchard. But we also need citizens like Moria Cue, looking over their shoulders, asking for explanations.
Justice is everybody's business
The public needs to hold police and prosecutors accountable
Bill Lueders on Thursday 09/03/2009
In April 2008 I wrote a web article about an astonishing legal filing in the Ralph Armstrong case. It alleged that a Dane County prosecutor, by then retired, not only failed to investigate a tip that pointed to a wrongful conviction but set out to destroy evidence that might have proven this.
The article did not take sides. It merely reported what the filing alleged: In the mid-1990s, Dane County prosecutor John Norsetter was contacted by a woman from Texas who said Steve Armstrong had admitted to the 1980 rape and murder of which his brother Ralph was convicted.
Accompanying the filing were detailed affidavits from two women who described this confession, and their efforts to call attention to it. One of them purportedly spoke to Norsetter, Ralph Armstrong's original prosecutor.
Norsetter failed to pass on this information and in 2006 ordered testing that destroyed what remained of a DNA sample, in violation of an existing court order.
Steve Armstrong died in 2005, the same year that the state Supreme Court overturned Ralph Armstrong's conviction on other grounds. He was awaiting retrial when the revelations about his brother came to light.
My article promoted an outraged reaction — but not the sort you might expect.
"Sure we've had our share of mistaken convictions and overzealous prosecution in Dane County, but this is one [case] where people need to tread carefully," wrote one poster on TheDailyPage.com Forum. "What I see is Leuders [real accuracy buff here] being used by Armstrong's defense attorneys in a PR campaign to make Armstrong look like a victim of a corrupt DA.... Shame on you Leuders and shame on Isthmus." Other respondents voiced similar criticisms.
In late July, Reserve Judge Robert Kinney, having heard the allegations against Norsetter, as well as a vigorous defense of his actions by the state, agreed that "a series of conscious decisions" had tainted the conviction beyond redemption. He dismissed the charges, a decision the DA's office has decided not to appeal.
Ralph Armstrong, who has always maintained his innocence (even though it's meant a longer sentence), is on his way to becoming a free man, due to prosecutorial actions Isthmus was skewered for even mentioning.
I tell this story because it points to a larger issue, one that ought to concern the entire community.
Ordinary citizens and even political leaders rarely challenge the criminal justice system, no matter how often we're reminded of its fallibility. Even folks who flock to public meetings on other local issues sit on their hands when it comes to prosecutors and police.
It's a real problem.
Already, we give these people vast powers — to arrest, to prosecute, to overlook transgression, to deprive of liberty — and immunize them from most lawsuits when they screw up. And then, on top of that, we spare them the bother of having to explain themselves. Indeed, the most common public reaction to allegations of injustice is to reflexively defend the system, as though it were too fragile to withstand scrutiny.
In announcing that it was not appealing Judge Kinney's decision, the Dane County District Attorney's Office issued a statement, which read in part:
"[The] record demonstrates that prosecuting attorneys and their colleagues in the Madison Police Department pursued this case in good faith at every stage of the process, and that any errors that occurred during the course of the investigation and prosecution were the product of innocent mistake or oversight."
That settles that. Thanks.
Except, as Columbo might say, for one little thing: Norsetter heard from a woman who said Steve Armstrong had credibly confessed, providing explicit details. He later ordered a DNA test that could not distinguish between brothers but used up the sample.
What makes the system so certain this was an innocent mistake?
Even if it were, that doesn't eliminate the need for answers and accountability. Where are the editorials from Neil Heinen and the dailies? Why hasn't noted local blogger Dave Cieslewicz weighed in?
Because the justice system always gets a pass. We snooze, we lose.
A decade ago I wrote several articles about a 15-year-old girl who was charged with a crime for slightly changing her account of a sexual assault. The person she accused was convicted of a crime. So was the girl's father, for calling her a slut and beating her up after the DA's charges were filed.
Dane County Judge Maryann Sumi dismissed the charge against the girl and chided the DA's office for bringing it. Then it was up to the community to respond. So far as I know, only one person did. Madison resident Moria Cue circulated a petition expressing outrage. She ultimately forced a high-level meeting with the DA's office, and I believe made it less likely that future rape victims will be treated this way.
We need police and prosecutors, and no community has more honorable people at the helm than Madison Police Chief Noble Wray and Dane County DA Brian Blanchard. But we also need citizens like Moria Cue, looking over their shoulders, asking for explanations.
Dahlia Lithwick: Innocent Until Executed
The following was published September 3, 2009 in Newsweek Magazine, magazine issue dated Sep. 14, 2009.
Innocent Until Executed
We have no right to exoneration.
By Dahlia Lithwick
For years, death-penalty opponents and supporters have been working their way toward a moment in which each side would rethink things. They were seeking a case in which a clearly innocent defendant was wrongly put to death. In a 2005 Supreme Court case that actually had nothing to do with the execution of innocents, Justices David Souter and Antonin Scalia tangled over the possibility that such a creature even existed. Souter fretted that "the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests." To which Scalia retorted: "The dissent makes much of the newfound capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt." Scalia went on to blast "sanctimonious" death-penalty opponents and a 1987 study on innocent exonerations whose "obsolescence began at the moment of publication," then concluded that there was not "a single case—not one—in which it is clear that a person was executed for a crime he did not commit."
This suggested that if anyone found such a case, the Scalias of the world would rethink matters. As of today, the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, claims there have been 241 postconviction DNA exonerations, of which 17 were former death-row inmates spared execution. The gap between their facts and Scalia's widens every year. And now we may have found that case of an innocent put to death: Cameron Todd Willingham, executed by the state of Texas in 2004 for allegedly setting a 1991 house fire that killed his three young daughters.
Click here to find out more!
David Grann, who wrote a remarkable piece about the case in last week's New Yorker, sifted through the evidence against Willingham to reveal that the entire prosecution was a train wreck. And at every step in his appeal, Willingham's claims of innocence were met with the response that he'd already had more than enough due process for a baby killer.
But you needn't take Grann's word for it. In 2004 Gerald Hurst, an acclaimed scientist and fire investigator, conducted an independent investigation of the evidence in the Willingham case and came away with little doubt that it was an accidental fire—likely caused by a space heater or bad wiring. Hurst found no evidence of arson, and wrote a report to try to stay the execution. According to documents obtained by the Innocence Project, it appears nobody at the state Board of Pardons and Paroles or the Texas governor's office even took note of Hurst's conclusions. Just before Willingham was executed, he told the Associated Press, "[T]he most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake."
Since Willingham's death, two other independent inquiries found no evidence of arson. In 2007 the state of Texas commissioned another renowned arson expert, Craig Beyler, to examine the Willingham evidence. Beyler's report, issued two weeks ago, concluded that investigators had no scientific basis for claiming the fire was arson.
One might think that all this would give a boost to death-penalty opponents, who have long contended that conclusive proof of an innocent murdered by the state would fundamentally change the debate. But that was before the goalposts began to shift this summer. In June, by a 5–4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," wrote Chief Justice John Roberts. And two months later, Justices Scalia and Clarence Thomas went even further when the Supreme Court ordered a new hearing in Troy Davis's murder case, after seven of nine eyewitnesses recanted their testimony. Justice Scalia, dissenting from that order, wrote for himself and Thomas, "[T]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."
As a constitutional matter, Scalia's assertion is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a "truly persuasive demonstration" of innocence. Now, in Scalia's America, the Cameron Todd Willingham whose very existence was once in doubt is legally irrelevant. We may execute a man for an accidental house fire, while the Constitution itself stands silently by.
Lithwick also writes for slate.com.
Innocent Until Executed
We have no right to exoneration.
By Dahlia Lithwick
For years, death-penalty opponents and supporters have been working their way toward a moment in which each side would rethink things. They were seeking a case in which a clearly innocent defendant was wrongly put to death. In a 2005 Supreme Court case that actually had nothing to do with the execution of innocents, Justices David Souter and Antonin Scalia tangled over the possibility that such a creature even existed. Souter fretted that "the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests." To which Scalia retorted: "The dissent makes much of the newfound capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt." Scalia went on to blast "sanctimonious" death-penalty opponents and a 1987 study on innocent exonerations whose "obsolescence began at the moment of publication," then concluded that there was not "a single case—not one—in which it is clear that a person was executed for a crime he did not commit."
This suggested that if anyone found such a case, the Scalias of the world would rethink matters. As of today, the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, claims there have been 241 postconviction DNA exonerations, of which 17 were former death-row inmates spared execution. The gap between their facts and Scalia's widens every year. And now we may have found that case of an innocent put to death: Cameron Todd Willingham, executed by the state of Texas in 2004 for allegedly setting a 1991 house fire that killed his three young daughters.
Click here to find out more!
David Grann, who wrote a remarkable piece about the case in last week's New Yorker, sifted through the evidence against Willingham to reveal that the entire prosecution was a train wreck. And at every step in his appeal, Willingham's claims of innocence were met with the response that he'd already had more than enough due process for a baby killer.
But you needn't take Grann's word for it. In 2004 Gerald Hurst, an acclaimed scientist and fire investigator, conducted an independent investigation of the evidence in the Willingham case and came away with little doubt that it was an accidental fire—likely caused by a space heater or bad wiring. Hurst found no evidence of arson, and wrote a report to try to stay the execution. According to documents obtained by the Innocence Project, it appears nobody at the state Board of Pardons and Paroles or the Texas governor's office even took note of Hurst's conclusions. Just before Willingham was executed, he told the Associated Press, "[T]he most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake."
Since Willingham's death, two other independent inquiries found no evidence of arson. In 2007 the state of Texas commissioned another renowned arson expert, Craig Beyler, to examine the Willingham evidence. Beyler's report, issued two weeks ago, concluded that investigators had no scientific basis for claiming the fire was arson.
One might think that all this would give a boost to death-penalty opponents, who have long contended that conclusive proof of an innocent murdered by the state would fundamentally change the debate. But that was before the goalposts began to shift this summer. In June, by a 5–4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," wrote Chief Justice John Roberts. And two months later, Justices Scalia and Clarence Thomas went even further when the Supreme Court ordered a new hearing in Troy Davis's murder case, after seven of nine eyewitnesses recanted their testimony. Justice Scalia, dissenting from that order, wrote for himself and Thomas, "[T]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."
As a constitutional matter, Scalia's assertion is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a "truly persuasive demonstration" of innocence. Now, in Scalia's America, the Cameron Todd Willingham whose very existence was once in doubt is legally irrelevant. We may execute a man for an accidental house fire, while the Constitution itself stands silently by.
Lithwick also writes for slate.com.
Fred Grimm: Case is among string of bogus convictions
The following op-ed column was published by the Miami Herald on September 5, 2009.
Case is among string of bogus convictions
By FRED GRIMM
fgrimm@MiamiHerald.com
The kid they tried to execute was just 15. An IQ of 67.
The Broward prosecutor demanded the death penalty. But the jury, queasy about killing a mentally deficient teenager with no more evidence than a questionable confession, voted to spare Anthony Caravella's life.
Circuit Judge Arthur J. Franza seemed disappointed. ``I'll tell you this, Anthony: If the jury had recommended death, I would have had you electrocuted.''
Broward was that close to executing an innocent teenager.
Twenty-six years after Caravella was sent off for life, Edward Blake, a leading forensic scientist and a pioneer in DNA analysis, obtained a genetic profile from sperm left by the man who raped and murdered Ada Jankowski behind Miramar Elementary School in 1982. Blake concluded: ``Anthony Caravella is eliminated as the source of the spermatozoa.''
So Caravella's case becomes yet another among the Broward state attorney's string of ignominious convictions of mentally challenged defendants, later found to be innocent.
SHAM CONFESSION
Once again, the deciding ``evidence'' was a sham confession elicited from a feeble-minded suspect after hours of interrogation.
The confession, of course, was the only actual evidence against Caravella. In fact, the cops elicited five contradictory confessions from the teenager, but the last, finally, coincided with the crime-scene evidence.
The new DNA findings suggest the interrogators provided the incriminating information. It must have been easy stuff, manipulating a frightened, mentally deficient suspect into self-incriminating statements. Just like John Purvis, a schizophrenic with the mind of a 12-year-old, who after a rambling, barely coherent confession, did nine years for a murder finally linked to someone else. Jerry Frank Townsend, IQ of 50, served 22 years after confessing to murders committed by Fort Lauderdale serial killer Eddie Lee Mosley. Frank Lee Smith, so mentally disturbed he shouted incoherent inanities at his jury, died of cancer after a dozen years on Death Row before DNA evidence cleared him.
FINE CAREER MOVE
Cops got their bogus statements. Prosecutors got their bogus convictions. And convicting mentally defective innocents proved a fine career move. Prosecutor Robert Carney, who nailed both Purvis and Carvella, now sits as a Broward circuit judge. William Dimitrouleas, who prosecuted Frank Lee Smith, has a lifetime appointment as a federal judge. Meanwhile, actual killers went free. Eddie Lee Mosley continued his hideous rape and murder spree. Miramar police never bothered to discover who stabbed Ada Jankowski 28 times.
In 2001, the Broward Sheriff's Office crime lab was persuaded to reexamine evidence from the Caravella case but failed, mysteriously, to isolate any DNA. Blake said Friday he received a ``harassing'' e-mail this week from the Broward state attorney's office indicating that, contrary to public statements about undoing a terrible injustice, the office would try to undermine his lab's credibility. If so, it would be a stunning tactic, given his national reputation. (With a list of high profile DNA cases that runs 51 pages, including the lab work that cleared Allen Crotzer and Luis Diaz, the wrongly accused Bird Road Rapist.)
``It appears they've gone into full scale cover-up mode,'' Blake said Friday. In Broward, we've been there before.
Case is among string of bogus convictions
By FRED GRIMM
fgrimm@MiamiHerald.com
The kid they tried to execute was just 15. An IQ of 67.
The Broward prosecutor demanded the death penalty. But the jury, queasy about killing a mentally deficient teenager with no more evidence than a questionable confession, voted to spare Anthony Caravella's life.
Circuit Judge Arthur J. Franza seemed disappointed. ``I'll tell you this, Anthony: If the jury had recommended death, I would have had you electrocuted.''
Broward was that close to executing an innocent teenager.
Twenty-six years after Caravella was sent off for life, Edward Blake, a leading forensic scientist and a pioneer in DNA analysis, obtained a genetic profile from sperm left by the man who raped and murdered Ada Jankowski behind Miramar Elementary School in 1982. Blake concluded: ``Anthony Caravella is eliminated as the source of the spermatozoa.''
So Caravella's case becomes yet another among the Broward state attorney's string of ignominious convictions of mentally challenged defendants, later found to be innocent.
SHAM CONFESSION
Once again, the deciding ``evidence'' was a sham confession elicited from a feeble-minded suspect after hours of interrogation.
The confession, of course, was the only actual evidence against Caravella. In fact, the cops elicited five contradictory confessions from the teenager, but the last, finally, coincided with the crime-scene evidence.
The new DNA findings suggest the interrogators provided the incriminating information. It must have been easy stuff, manipulating a frightened, mentally deficient suspect into self-incriminating statements. Just like John Purvis, a schizophrenic with the mind of a 12-year-old, who after a rambling, barely coherent confession, did nine years for a murder finally linked to someone else. Jerry Frank Townsend, IQ of 50, served 22 years after confessing to murders committed by Fort Lauderdale serial killer Eddie Lee Mosley. Frank Lee Smith, so mentally disturbed he shouted incoherent inanities at his jury, died of cancer after a dozen years on Death Row before DNA evidence cleared him.
FINE CAREER MOVE
Cops got their bogus statements. Prosecutors got their bogus convictions. And convicting mentally defective innocents proved a fine career move. Prosecutor Robert Carney, who nailed both Purvis and Carvella, now sits as a Broward circuit judge. William Dimitrouleas, who prosecuted Frank Lee Smith, has a lifetime appointment as a federal judge. Meanwhile, actual killers went free. Eddie Lee Mosley continued his hideous rape and murder spree. Miramar police never bothered to discover who stabbed Ada Jankowski 28 times.
In 2001, the Broward Sheriff's Office crime lab was persuaded to reexamine evidence from the Caravella case but failed, mysteriously, to isolate any DNA. Blake said Friday he received a ``harassing'' e-mail this week from the Broward state attorney's office indicating that, contrary to public statements about undoing a terrible injustice, the office would try to undermine his lab's credibility. If so, it would be a stunning tactic, given his national reputation. (With a list of high profile DNA cases that runs 51 pages, including the lab work that cleared Allen Crotzer and Luis Diaz, the wrongly accused Bird Road Rapist.)
``It appears they've gone into full scale cover-up mode,'' Blake said Friday. In Broward, we've been there before.
Friday, September 04, 2009
Byron Williams: Time to do away with the death penalty
The following op-ed was published in the Oakland (California) Tribune on September 3, 2009.
SEPTEMBER 3, 2009
Byron Williams: Time to do away with the death penalty
Contributing columnist
REGARDLESS OF where you come down on the death penalty, Cameron Todd Willingham is a name you should not forget. In this week's New Yorker, investigative reporter David Grann writes a very convincing article that Willingham, who was executed by the state of Texas in 2004, was most likely an innocent man.
Willingham was convicted of murdering his three children by setting fire to his wood-frame house in Corsicana, Texas.
The first problem Willingham faced was an inability to afford legal representation. Death rows across the country are filled with those who must rely on public defenders.
After reading Willingham's story in The New Yorker, one can't help but ask, at a minimum, have innocent people been executed?
It is a question death-penalty advocates are unable to address without sinking to the depths of the gruesome and barbaric. Since it is impossible to avoid error, the only way one can support the death penalty is to suggest that we have expendable portions of society.
That may sound over-the-top, but what else could explain supporting a policy that is costly, inefficient, economically subjective and, if carried out, offers no adequate recourse should the ultimate mistake be made?
There is no dependable data that proves the death penalty saves lives, as some would suggest. But it has been proven that capital punishment is more costly than life without the possibility of parole because of the expensive appeal process. This leaves some death-penalty advocates to suggest limiting the appeal process.
This option — which is a proven applause line on the campaign trail — reveals the extent to which some people are willing to go to maintain a system that does not work.
Anyone who cavalierly recommends reducing the appeal process is, in effect, arguing on behalf of the best way to ensure more innocent people are put to death.
Since 1976, more than 130 individuals on death row have been exonerated. DNA testing, which was developed in the 1980s, has definitely changed the dynamics. But DNA testing is used sparingly.
Barry Scheck, a co-founder of the Innocence Project, which has used DNA testing to exonerate prisoners, estimates that roughly 80 percent of felonies do not involve biological evidence.
In 2000, former Illinois Gov. George Ryan exonerated 13 individuals on death row and then suspended the state's death penalty. Ryan had been a longtime advocate of capital punishment, but he declared that he could no longer support a system that has "come so close to the ultimate nightmare — the state's taking of innocent life."
Former Supreme Court Justice Sandra Day O'Connor has said that the "execution of a legally and factually innocent person would be a constitutionally intolerable event." But our continued support of the death penalty suggests that it is not intolerable.
A majority of Californians still favor the death penalty, but a new public-opinion poll by UC Professor Craig Haney reveals that support for capital punishment has eroded significantly since 1989, the last time a detailed statewide survey on the topic was conducted.
Sixty-six percent of 800 respondents in the new poll expressed support for the death penalty, compared to 79 percent in 1989.
Haney's findings are consistent with the findings of a recent statewide Field Poll that asked one question about capital punishment. Sixty-seven percent of respondents to that survey support the death penalty, the Field Poll found.
The proportion of adult Californians who view themselves as "strong" supporters of the death penalty has dropped from 50 percent in 1989 to 38 percent today. Conversely, fewer than 9 percent were "strongly opposed" to capital punishment 20 years ago, compared to 21 percent today.
"These changes appear to be related to changes in the way Californians view the system of death sentencing, rather than just the punishment itself," said Haney.
It is easy to parse out the most heinous crimes as Exhibit A as to why we need to maintain the death penalty. Public policy, however, cannot be based on the exception.
Continued support of a system that can possibly execute an innocent person means there is an error percentage higher than zero that one is willing to live with. If there can be no perfect system, why not discontinue the barbarity?
That way, on the rare occasion that an innocent person is wrongfully convicted, there remains the possibility of proving that person's innocence while that person is still alive.
Byron Williams is an Oakland pastor and columnist for Bay Area News Group-East Bay. E-mail him at byron@byronspeaks.com or leave a message at 510-208-6417.
SEPTEMBER 3, 2009
Byron Williams: Time to do away with the death penalty
Contributing columnist
REGARDLESS OF where you come down on the death penalty, Cameron Todd Willingham is a name you should not forget. In this week's New Yorker, investigative reporter David Grann writes a very convincing article that Willingham, who was executed by the state of Texas in 2004, was most likely an innocent man.
Willingham was convicted of murdering his three children by setting fire to his wood-frame house in Corsicana, Texas.
The first problem Willingham faced was an inability to afford legal representation. Death rows across the country are filled with those who must rely on public defenders.
After reading Willingham's story in The New Yorker, one can't help but ask, at a minimum, have innocent people been executed?
It is a question death-penalty advocates are unable to address without sinking to the depths of the gruesome and barbaric. Since it is impossible to avoid error, the only way one can support the death penalty is to suggest that we have expendable portions of society.
That may sound over-the-top, but what else could explain supporting a policy that is costly, inefficient, economically subjective and, if carried out, offers no adequate recourse should the ultimate mistake be made?
There is no dependable data that proves the death penalty saves lives, as some would suggest. But it has been proven that capital punishment is more costly than life without the possibility of parole because of the expensive appeal process. This leaves some death-penalty advocates to suggest limiting the appeal process.
This option — which is a proven applause line on the campaign trail — reveals the extent to which some people are willing to go to maintain a system that does not work.
Anyone who cavalierly recommends reducing the appeal process is, in effect, arguing on behalf of the best way to ensure more innocent people are put to death.
Since 1976, more than 130 individuals on death row have been exonerated. DNA testing, which was developed in the 1980s, has definitely changed the dynamics. But DNA testing is used sparingly.
Barry Scheck, a co-founder of the Innocence Project, which has used DNA testing to exonerate prisoners, estimates that roughly 80 percent of felonies do not involve biological evidence.
In 2000, former Illinois Gov. George Ryan exonerated 13 individuals on death row and then suspended the state's death penalty. Ryan had been a longtime advocate of capital punishment, but he declared that he could no longer support a system that has "come so close to the ultimate nightmare — the state's taking of innocent life."
Former Supreme Court Justice Sandra Day O'Connor has said that the "execution of a legally and factually innocent person would be a constitutionally intolerable event." But our continued support of the death penalty suggests that it is not intolerable.
A majority of Californians still favor the death penalty, but a new public-opinion poll by UC Professor Craig Haney reveals that support for capital punishment has eroded significantly since 1989, the last time a detailed statewide survey on the topic was conducted.
Sixty-six percent of 800 respondents in the new poll expressed support for the death penalty, compared to 79 percent in 1989.
Haney's findings are consistent with the findings of a recent statewide Field Poll that asked one question about capital punishment. Sixty-seven percent of respondents to that survey support the death penalty, the Field Poll found.
The proportion of adult Californians who view themselves as "strong" supporters of the death penalty has dropped from 50 percent in 1989 to 38 percent today. Conversely, fewer than 9 percent were "strongly opposed" to capital punishment 20 years ago, compared to 21 percent today.
"These changes appear to be related to changes in the way Californians view the system of death sentencing, rather than just the punishment itself," said Haney.
It is easy to parse out the most heinous crimes as Exhibit A as to why we need to maintain the death penalty. Public policy, however, cannot be based on the exception.
Continued support of a system that can possibly execute an innocent person means there is an error percentage higher than zero that one is willing to live with. If there can be no perfect system, why not discontinue the barbarity?
That way, on the rare occasion that an innocent person is wrongfully convicted, there remains the possibility of proving that person's innocence while that person is still alive.
Byron Williams is an Oakland pastor and columnist for Bay Area News Group-East Bay. E-mail him at byron@byronspeaks.com or leave a message at 510-208-6417.
Guest Shot: Sex-Registry Flaws Stand Out
The following news article was originally published in the Wall Street Journal on September 3, 2009.
Sex-Registry Flaws Stand Out
By RYAN KNUTSON and JUSTIN SCHECK
The case of Phillip Garrido, who allegedly held Jaycee Dugard in his backyard for 18 years despite monthly law-enforcement visits, is forcing California officials to acknowledge a fundamental problem with the state's sex-offender registry: The list keeps expanding, while the number of officials who monitor sex offenders has grown at a much slower rate.
There are now so many people on the registry it's difficult for law enforcement to effectively track them all, and "it's more helpful for law enforcement to know...who the highest-risk offenders are," said Janet Neeley, a deputy California attorney general and member of the state's sex offender board.
A December study of roughly 20,000 registered sex offenders on parole in California found 9% posed a "high risk" of reoffending, and 29% posed a "moderate-high" to "high" risk, said Ms. Neeley. But law-enforcement officials and academics say vast resources are spent monitoring nonviolent offenders rather than keeping closer tabs on more-dangerous ones.
California's sex-offender registry has ballooned to more than 90,000 people now from about 45,000 in 1994, according to the California attorney general's office. Not only has the number of law-enforcement officers failed to keep pace, but recent state budget cuts have forced some local agencies to cut officers assigned to sex offenders, according to the California Commission on Peace Officer Standards and Training.
The Santa Clara County Sheriff's Office, for example, said funding cuts have forced it to field only five officers dedicated to tracking sex offenders in the county, down from eight officers five years ago.
Last year, California's Sex Offender Management Board criticized the system as it stands in a 225-page assessment, highlighting failures in the collection and analysis of data on sex offenders. It's "difficult if not impossible" to track the effectiveness of registry laws, the report said.
Mr. Garrido, who allegedly kidnapped the 11-year-old girl in 1991, was considered high-risk because of a 1977 conviction for rape and kidnapping. But he received about the same number of visits from officers at his Antioch, Calif., home as the 200 or so other sex offenders in Antioch and adjacent Pittsburg, said the Contra Costa County Sheriff, even though many weren't convicted of violent offenses. During dozens of visits to Mr. Garrido's home, authorities never found the tents and shacks hidden behind a backyard fence.
The growing sex-offender list can dilute the amount of attention on the most dangerous offenders, said Nora Demleitner, the dean of Hofstra University Law School who studies sentencing. Some sex offenders "tend to be not dangerous at all," she said. "You have them register as sex offenders, so when you're law enforcement, all these people look the same. If you had much more focused sex-offender laws, maybe they would have been bothered to go into the shack" in Mr. Garrido's back yard.
California has been trying to sharpen its focus, but federal and state laws passed in 2006 offer conflicting rules for monitoring sex offenders, Ms. Neeley said.
Under its law, California has chosen to use a program called Static 99, which categorizes sex offenders based on their likelihood to reoffend. To predict risk, it looks at things like the nature of the crime, the offender's relationship with the victim and whether the offender has been able to form long-term intimate relationships. But the system hasn't been introduced by most local jurisdictions for those convicted before 2007.
Provisions in the federal Adam Walsh Act aim to move monitoring in the opposite direction, so that it's based solely on an offender's type of conviction, not on a complex assessment of risk.
That's problematic, said Jill Levenson, an associate professor at Lynn University in Florida who studies sex-offender registries, since it "overestimates risk for most people, and underestimates risk for people who pleaded down," or struck plea deals by admitting to lower-level crimes.
Now, the state Sex Offender Management Board is recommending that California forgo some federal funds and not adopt the law, which would add to the number of crimes requiring registration.
"There is no available evidence to indicate that expanding California's list of registerable crimes would promote public safety," the board wrote in a recommendation, noting the federal law would create at least $32 million in costs to the attorney general's office and law-enforcement agencies without improving the system.
Write to Ryan Knutson at ryan.knutson@wsj.com and Justin Scheck at justin.scheck@wsj.com
Sex-Registry Flaws Stand Out
By RYAN KNUTSON and JUSTIN SCHECK
The case of Phillip Garrido, who allegedly held Jaycee Dugard in his backyard for 18 years despite monthly law-enforcement visits, is forcing California officials to acknowledge a fundamental problem with the state's sex-offender registry: The list keeps expanding, while the number of officials who monitor sex offenders has grown at a much slower rate.
There are now so many people on the registry it's difficult for law enforcement to effectively track them all, and "it's more helpful for law enforcement to know...who the highest-risk offenders are," said Janet Neeley, a deputy California attorney general and member of the state's sex offender board.
A December study of roughly 20,000 registered sex offenders on parole in California found 9% posed a "high risk" of reoffending, and 29% posed a "moderate-high" to "high" risk, said Ms. Neeley. But law-enforcement officials and academics say vast resources are spent monitoring nonviolent offenders rather than keeping closer tabs on more-dangerous ones.
California's sex-offender registry has ballooned to more than 90,000 people now from about 45,000 in 1994, according to the California attorney general's office. Not only has the number of law-enforcement officers failed to keep pace, but recent state budget cuts have forced some local agencies to cut officers assigned to sex offenders, according to the California Commission on Peace Officer Standards and Training.
The Santa Clara County Sheriff's Office, for example, said funding cuts have forced it to field only five officers dedicated to tracking sex offenders in the county, down from eight officers five years ago.
Last year, California's Sex Offender Management Board criticized the system as it stands in a 225-page assessment, highlighting failures in the collection and analysis of data on sex offenders. It's "difficult if not impossible" to track the effectiveness of registry laws, the report said.
Mr. Garrido, who allegedly kidnapped the 11-year-old girl in 1991, was considered high-risk because of a 1977 conviction for rape and kidnapping. But he received about the same number of visits from officers at his Antioch, Calif., home as the 200 or so other sex offenders in Antioch and adjacent Pittsburg, said the Contra Costa County Sheriff, even though many weren't convicted of violent offenses. During dozens of visits to Mr. Garrido's home, authorities never found the tents and shacks hidden behind a backyard fence.
The growing sex-offender list can dilute the amount of attention on the most dangerous offenders, said Nora Demleitner, the dean of Hofstra University Law School who studies sentencing. Some sex offenders "tend to be not dangerous at all," she said. "You have them register as sex offenders, so when you're law enforcement, all these people look the same. If you had much more focused sex-offender laws, maybe they would have been bothered to go into the shack" in Mr. Garrido's back yard.
California has been trying to sharpen its focus, but federal and state laws passed in 2006 offer conflicting rules for monitoring sex offenders, Ms. Neeley said.
Under its law, California has chosen to use a program called Static 99, which categorizes sex offenders based on their likelihood to reoffend. To predict risk, it looks at things like the nature of the crime, the offender's relationship with the victim and whether the offender has been able to form long-term intimate relationships. But the system hasn't been introduced by most local jurisdictions for those convicted before 2007.
Provisions in the federal Adam Walsh Act aim to move monitoring in the opposite direction, so that it's based solely on an offender's type of conviction, not on a complex assessment of risk.
That's problematic, said Jill Levenson, an associate professor at Lynn University in Florida who studies sex-offender registries, since it "overestimates risk for most people, and underestimates risk for people who pleaded down," or struck plea deals by admitting to lower-level crimes.
Now, the state Sex Offender Management Board is recommending that California forgo some federal funds and not adopt the law, which would add to the number of crimes requiring registration.
"There is no available evidence to indicate that expanding California's list of registerable crimes would promote public safety," the board wrote in a recommendation, noting the federal law would create at least $32 million in costs to the attorney general's office and law-enforcement agencies without improving the system.
Write to Ryan Knutson at ryan.knutson@wsj.com and Justin Scheck at justin.scheck@wsj.com
Thursday, August 27, 2009
News Release: Faulty fire investigation led to execution
The following news report was written byu Jamie Stengle and published by the Associated Press on August 27, 2009.
Report: Faulty fire investigation led to execution
By JAMIE STENGLE (AP)
August 27, 2009
DALLAS — A fire investigation that led to the execution of a man in the deaths of his three young children was so seriously flawed that its conclusion of arson can't be supported, a fire expert hired by the state said in a new report.
In a report to the Texas Forensic Science Commission released Tuesday, Craig Beyler said the fire investigation in Cameron Todd Willingham's case didn't adhere to the standards of care in place at the time, nor to current standards.
Beyler, chairman of the London-based International Association for Fire Safety Science, said in the report that the opinions of a state fire official in the case were "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."
The commission, created in 2005 to review forensic misconduct allegations, requested the independent analysis after the Innocence Project submitted claims of questionable evidence in the cases of Willingham and another man who was convicted in a similar case but was later released.
Commission Chairman Sam Bassett called Beyler's report "a major step" in the panel's review of both cases.
Before issuing its final report, the commission will seek responses from the State Fire Marshal's Office and other parties, and will interview Beyler in October, Bassett said.
He said he expects the commission to release its report next spring.
Beyler said that in both cases, "The investigators had poor understandings of fire science ... Their methodologies did not comport with the scientific method or the process of elimination."
He said Manuel Vasquez, a deputy state fire marshal who investigated the Willingham case, appeared "wholly without any realistic understanding of fires and how fire injuries are created."
Beyler said witnesses contradicted Vasquez's arson hypothesis and that Vasquez admitted he had not eliminated other possible causes.
Eric Ferrero, spokesman for the Innocence Project, a New York-based organization dedicated to exonerating wrongfully convicted people, said Beyler's findings on the Willingham case "confirms what several experts have found over the last five years after reviewing thousands of pages of evidence."
"Every expert who has looked at this case has determined there was no reason to call it arson," he said.
Willingham, 36, was executed in 2004. He was convicted of setting the fire that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron two days before Christmas 1991 in their Corsicana home.
He told The Associated Press before his execution that he was innocent, calling his 1992 trial "a joke." "The most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake," he said.
Willingham's cousin, Patricia Cox, of Ardmore, Okla., said she has never doubted her cousin's innocence. Family members tried for years to free him.
"I would definitely like the state of Texas to take responsibility and admit in fact they wrongfully executed Todd Willingham," she said. "Is that going to happen? Probably not. I'm not optimistic."
Vasquez investigated the case with Douglas Fogg, the assistant Corsicana fire chief. The report said both cited burn patterns on the floor of the children's room, hallway and porch, indicating an accelerant spill. Beyler said those determinations have no basis in modern fire science.
Ben Gonzalez, a spokesman for the Texas Department of Insurance, of which the State Fire Marshal's Office is a part, said he had no comment on the report, adding that officials there had not yet seen it. He said Vasquez died in 1994.
A call to a Douglas Fogg in Corsicana was not immediately returned Wednesday.
In the other case cited in the report, Ernest Ray Willis was convicted in 1987 in a fatal house fire in Iraan, but was freed after 17 years on death row when a federal judge ruled that authorities concealed evidence and needlessly drugged him during his trial.
Report: Faulty fire investigation led to execution
By JAMIE STENGLE (AP)
August 27, 2009
DALLAS — A fire investigation that led to the execution of a man in the deaths of his three young children was so seriously flawed that its conclusion of arson can't be supported, a fire expert hired by the state said in a new report.
In a report to the Texas Forensic Science Commission released Tuesday, Craig Beyler said the fire investigation in Cameron Todd Willingham's case didn't adhere to the standards of care in place at the time, nor to current standards.
Beyler, chairman of the London-based International Association for Fire Safety Science, said in the report that the opinions of a state fire official in the case were "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."
The commission, created in 2005 to review forensic misconduct allegations, requested the independent analysis after the Innocence Project submitted claims of questionable evidence in the cases of Willingham and another man who was convicted in a similar case but was later released.
Commission Chairman Sam Bassett called Beyler's report "a major step" in the panel's review of both cases.
Before issuing its final report, the commission will seek responses from the State Fire Marshal's Office and other parties, and will interview Beyler in October, Bassett said.
He said he expects the commission to release its report next spring.
Beyler said that in both cases, "The investigators had poor understandings of fire science ... Their methodologies did not comport with the scientific method or the process of elimination."
He said Manuel Vasquez, a deputy state fire marshal who investigated the Willingham case, appeared "wholly without any realistic understanding of fires and how fire injuries are created."
Beyler said witnesses contradicted Vasquez's arson hypothesis and that Vasquez admitted he had not eliminated other possible causes.
Eric Ferrero, spokesman for the Innocence Project, a New York-based organization dedicated to exonerating wrongfully convicted people, said Beyler's findings on the Willingham case "confirms what several experts have found over the last five years after reviewing thousands of pages of evidence."
"Every expert who has looked at this case has determined there was no reason to call it arson," he said.
Willingham, 36, was executed in 2004. He was convicted of setting the fire that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron two days before Christmas 1991 in their Corsicana home.
He told The Associated Press before his execution that he was innocent, calling his 1992 trial "a joke." "The most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake," he said.
Willingham's cousin, Patricia Cox, of Ardmore, Okla., said she has never doubted her cousin's innocence. Family members tried for years to free him.
"I would definitely like the state of Texas to take responsibility and admit in fact they wrongfully executed Todd Willingham," she said. "Is that going to happen? Probably not. I'm not optimistic."
Vasquez investigated the case with Douglas Fogg, the assistant Corsicana fire chief. The report said both cited burn patterns on the floor of the children's room, hallway and porch, indicating an accelerant spill. Beyler said those determinations have no basis in modern fire science.
Ben Gonzalez, a spokesman for the Texas Department of Insurance, of which the State Fire Marshal's Office is a part, said he had no comment on the report, adding that officials there had not yet seen it. He said Vasquez died in 1994.
A call to a Douglas Fogg in Corsicana was not immediately returned Wednesday.
In the other case cited in the report, Ernest Ray Willis was convicted in 1987 in a fatal house fire in Iraan, but was freed after 17 years on death row when a federal judge ruled that authorities concealed evidence and needlessly drugged him during his trial.
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