Thursday, April 23, 2009

Guest Shot: Jurors regret convicting innocent man

The following opinion was originally published in the Houston Chronicle on April 18, 2009.

Jurors regret convicting innocent man

April 18, 2009

When we were called to serve as jurors in an Austin sexual assault and murder case, we could never have predicted the ending of this story. Twelve years after we found Richard Danziger guilty of aggravated sexual assault, new DNA evidence revealed that Richard was, in fact, innocent. This shocking discovery left us confused, angry and wondering how this tragic error could have ever happened.

The centerpiece of the case presented against Danziger in 1990 was testimony provided by his friend and alleged co-conspirator, Christopher Ochoa. When Ochoa took the stand to testify against Danziger, he presented a convincing summary of events that left little doubt in our minds that both were guilty of this terrible crime. What we did not know, however, was that Ochoa’s confession and testimony were false — he only confessed and agreed to testify against Danziger after 20 intense hours of interrogation.

Unfortunately, Danziger’s case is not unique. False confessions have played a role in about 25 percent of the 234 DNA exonerations across the country. Whether because of mental incapacity, youth or persuasive threats, DNA evidence proved that each of these people was convicted of a crime he did not commit.

We were horrified to learn after Danziger’s exoneration that Ochoa’s interrogation was characterized by lies about inculpatory evidence and threats that if he did not confess and testify against Danziger, he would receive the death penalty. None of this came to light during the trial, however, because there was no record of the interrogation procedure. Had we been given the opportunity to see the context of Ochoa’s confession, including the coercive tactics that were used for hours against him, we would have at least had something to deliberate about. We did the best we could with the evidence provided to us; unfortunately, that evidence was dangerously incomplete, undocumented and untrue.

It has taken us a long time to come to terms with what happened to Danziger — in many ways we still haven’t. We are still dismayed at participating in what we can only describe as the destruction of a young man’s life. Not only were Ochoa and Danziger wrongly imprisoned, but Danziger suffered a horrible attack while incarcerated that left him seriously disabled for the rest of his life. We still share with family and friends the resounding negative impact this experience has had on our lives and our opinions of the criminal justice system.

If interrogations are recorded in their entirety — from the reading of rights to the end — jurors will have access to a clear, complete picture of the circumstances that led to a confession. This is essential in order to effectively evaluate the quality of that evidence. While many police departments have begun to record suspect interrogations, there is currently no requirement that they do so. Some things are too important to leave optional, and we think this is one of them. A complete record of suspect interrogations documents a crucial part of a criminal investigation, and it is essential for jurors to do their jobs well and reach justice.

Police officers who record interrogations know first-hand the benefits of such a policy, too. This powerful tool protects them from false claims of abuse and provides the best evidence possible to convict the guilty. By taking the step to require recorded interrogations, Texas can demonstrate to the public that we have learned from our mistakes and can begin to regain the trust that has been lost through misconduct and wrongful conviction. We will settle for nothing less than the best quality evidence possible.

Bohls, of Austin, Diamond, of Clifton, Mo., and Roland, of Pflugerville, were jurors in the wrongful conviction case of Richard Danizger.

Saturday, April 11, 2009

Guest Shot: Conviction thrown out, tables turn on prosecutors

The following opinion was published in the Indianapolis (Indiana) Star on April 10, 2009.

Conviction thrown out, tables turn on prosecutors
by Ken Bode

In 1987, when a jury found Ronald Reagan's former Secretary of Labor, Raymond Donovan, not guilty of fraud and larceny, Donovan asked the prosecutor, "Which office do I go to to get my reputation back?"

That is often the question in failed, high-profile public corruption cases. The thought must have passed through the mind of former Alaska Sen. Ted Stevens this week, when, at the request of Attorney General Eric Holder, a federal judge in Washington threw out the ethics conviction that cost him the Senate seat he'd held longer than any other Republican.

This time, however, Judge Emmet Sullivan went further. He named a special counsel to investigate whether six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, should face criminal charges. Angrily, Judge Sullivan warned about what he called "a troubling tendency" among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases.

When winning cases -- "getting another scalp on the belt" -- becomes the optimal outcome, ambitious prosecutors have been known to withhold evidence from the defense (as in the Stevens case), make sleazy deals with jailhouse informants and use coerced confessions to made their case.

In Illinois, so many Death Row wrongful convictions were revealed that Gov. George Ryan in 2003 issued a blanket commutation to life sentences for all prisoners facing capital punishment. In 2006, five Death Row convictions were overturned in North Carolina because prosecutors had withheld evidence pointing to a defendant's innocence.

What surprised me about the Stevens case is that Public Integrity lawyers were the miscreants. Over more than 25 years working as a network correspondent, I used sources in the Public Integrity section to report on cases of political corruption and vote fraud in Chicago, Philadelphia, Louisiana, West Virginia, North Carolina, Alabama and here in Indiana. I watched them build cases involving vote-buying, conspiracy, kickbacks, you name it, and they almost never failed to get a conviction. Not interested in loosey-goosey justice, they built solid cases.

One of the things the Public Integrity folks emphasized, especially in high-profile political cases, was a final Washington review of the investigators and prosecutors in the field. Their motto was some variation of, "If you rise up to strike the king, you'd better kill him." They wanted no instances of ambitious prosecutors bringing charges against elected officials only to find the case involved weak witnesses, withheld evidence or a political vendetta.

They were purists. In Alabama, I watched them drop a case at the courthouse door when journalists reported on prosecutorial harassment of witnesses and potential defendants. So, when I watched the case against Stevens go forward, I felt pretty certain that federal prosecutors had the goods. Surely if you bring corruption charges in an election year against the most senior senator in the Republican Party, you will bring nothing but a slam-dunk case.

I believe this is why Judge Sullivan was so angry in his rebuke to government lawyers in the Stevens case. During the trial, the judge held three prosecutors in contempt for failing to produce documents, and scolded them for introducing evidence they knew to be inaccurate. The prosecutorial misconduct was intentional, said the judge, and when Stevens' lawyers repeatedly called it to the attention of former Attorney General Michael Mukasey, they were ignored.

Against this outcome, the gifts Stevens allegedly received -- a puppy, a stained glass window, remodeling of his country chalet and a vibrating lounger -- seem penny-ante. Because he was convicted eight days before the election, this outlandishly flawed trial cost Stevens not just his reputation but his Senate seat as well.

In Alaska, there are calls for a new election. I endorse that. In Washington, Georgetown University law students who signed up for a course on public corruption are looking for a new professor. Brenda Morris, the lead prosecutor in the government's case against Stevens, won't be available. She now faces criminal charges herself.

Ken Bode is the former national political correspondent for NBC News and a former political analyst for CNN. Contact him at

Thursday, April 09, 2009

Must Viewing

On April 12, 2009 at 10 p.m. Eastern/Pacific Time, do not miss "Witch Hunt" on MSNBC. The documentary, executive-produced and narrated by Sean Penn, tells how dozens of innocent people in Bakersfield, California were convicted of molesting their own children, on the basis of evidence that was at minimum thin, and in most instances, borrowed from the world of fantasy.

In 2005, Kimberly Sevcik wrote about the impact of these prosecutions on the victims for "Rolling Stone Magazine" --

The day Jeff Modahl's daughters were spirited away from their school in the back of a squad car, no one would tell him where they were taken. He spoke to plenty of people in Bakersfield, California, who knew: The sheriff. The district attorney. The Department of Children's Services. "Your girls are safe," one official after another assured him. "But we can't let you talk to them." Earlier in the week, Modahl, a soft-spoken thirty-year-old mechanic with the build of a heavyweight wrestler, had called Children's Services to report that he suspected the girls' baby sitter of touching them inappropriately. Officials told him that they were investigating his charge, but until they had finished questioning Carla, 10, and Teresa, 12, no one in the family would be allowed to speak to them.

The morning sun was still low and tentative when police knocked on Modahl's door two weeks later and arrested him. Panicked and confused, Modahl repeatedly asked the officers what he was being charged with, but they refused to tell him. He sat on the couch, his hands cuffed behind his back, as they ransacked the house, rummaging through drawers and closets, confiscating all of his family photographs.

"Witch Hunt" offers greater depth, and spares none of the authorities -- who, for the most part, are still in positions of power. Foremost among these is DA Ed Jagels, consistently rewarded for malfeasance by re-election to a post where he has struck repeated blows to truth and to justice.

If you can't watch "Witch Hunt" on Sunday evening, record it and watch it later.