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.
Monday, September 21, 2009
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
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