Saturday, February 28, 2009

Guest Shot: Obama's Testing Test by William Sessions

The following opinion by William Sessions was originally published in Slate Magazine on February 27, 2009.

Obama's Testing Test
Why is the Justice Department on the wrong side of a Supreme Court case about DNA evidence?
By William S. Sessions

Posted Friday, Feb. 27, 2009
On Monday, the Supreme Court will hear a case about whether the Constitution's due process clause requires Alaska to turn over DNA evidence to William Osborne, who was sentenced to 26 years in prison for kidnapping and sexual assault. Alaska prosecutors do not dispute that advanced DNA testing could prove Osborne's innocence beyond any doubt. But for nearly a decade, they've refused to allow him to do this testing.

To my great disappointment, recent news reports indicate that the Obama Justice Department has decided not to reverse the Bush administration's decision to weigh in on Alaska's side in the case, District Attorney's Office for the Third Judicial District v. Osborne. As has been said many times, the Justice Department's mission is to do justice. It is not to seek a conviction—or to uphold one—at all costs.

What interest does Alaska have in denying Osborne access to this evidence, thus obscuring the truth? He has offered to pay for the testing, so the state will incur no financial cost. In any case, federal money is available to help pay for testing for those who cannot afford it. Osborne did not willfully bypass advanced DNA testing when he was tried 14 years ago; the sophisticated testing he requests did not exist then.

Alaska's primary argument is that testing is unnecessary because non-DNA evidence demonstrates Osborne's likely guilt. But the victim's physical description of her attacker was tentative, differing in key respects from Osborne. And other cases have repeatedly demonstrated that this other evidence will amount to nothing if the DNA excludes Osborne and could even be matched to a convicted felon already in the system.

As I know from experience, law enforcement's predictions about a defendant's likely guilt are no substitute for actually performing a DNA test.

When I became FBI director in 1987, the bureau established a DNA laboratory we hoped would be used to verify that a suspect had indeed committed a crime. During my years as a U.S. attorney and federal judge in Texas, rapists and murderers sometimes walked free for lack of biological evidence. I had these cases in mind when we established the laboratory in Washington, D.C.

The results of the first 100 tests in 1988 astonished me. In three out of 10 cases, not only did we have the wrong person, but the guilty person was still at large. Many of them were unidentified and dangerous. DNA testing overall has produced dramatic results, exonerating a total of 232 people, including 17 on death row.

Alaska argues that a constitutional rule mandating that defendants get access to DNA after their convictions will prevent states from coming up with their own rules for handling this evidence. It's true that some states and the federal government do allow post-conviction access to DNA evidence. But as important, some narrowly circumscribe such access, and six, including Alaska, provide no statutory right to it at all.

Alaska contends that evidence of innocence does not, by itself, matter once a person has been convicted, or if the trial was free of constitutional and other defects. That goes too far in elevating the principle of finality over basic justice.

It's a generally laudatory goal for a new president to continue the DoJ polices of the previous one when he takes office. But a change in position may be warranted in some cases. Osborne is one of them. The Justice Department's decision is particularly perplexing because when President Obama was an Illinois state senator, he responded to that state's wrongful conviction problem by leading a bipartisan effort to help prevent convictions of the innocent, including laws allowing access to DNA evidence.

Evidence of innocence does—and must—matter to all of us, whenever it is presented. I have no idea whether Osborne is guilty. If the DNA shows that he is, so be it. But what if it shows he is not? Wouldn't victims of crime want to know if the wrong person is imprisoned, and the real perpetrator is still on the streets, free to commit more crimes? Wouldn't all of us want to know this?

Former Attorney General John Ashcroft has called DNA the "truth machine of law enforcement." Why should our criminal justice system be afraid of that truth machine? There is still time for the new administration to reverse course before next Monday's argument. I hope it will.

William S. Sessions, now a partner at the law firm Holland and Knight, directed the FBI from 1987 to 1993. Previously, he served as a federal judge and U.S. attorney in Texas.

Wednesday, February 18, 2009

Free Connie Keel, by Adam Reich

My name is Adam Reich, and I am a clinical supervisor with the Post-Conviction Justice Project at USC Law School. I am writing this on behalf of one of my clients, Connie Diane Keel. I believe her story correlates to your organization's interests.

Connie Keel, a non-violent grandmother, has been incarcerated since 1981 because she sat in a car, terrified for her life, while her armed, abusive husband and his cousin made a spur-of-the-moment decision to rob a liquor store and shoot the clerk. Even though Ms. Keel did not enter the store, fire the gun, or actually commit the robbery or murder, she is still behind bars, nearly 30 years later.

Connie has a long history of domestic abuse. As a child, adolescent, and young adult, she was neglected and physically abused by her mother, sexually abused by uncles, neighbors, and friends, and then regularly beaten (and even raped) by her husband. A California Board of Parole Hearings investigation substantiated Connie's stories of abuse through interviews with her family and friends and those of her ex-husband. The same investigation found that Connie's extensive abuse led her to develop a condition, Battered Women's Syndrome, which prevented her from disobeying her husband when ordered her at gunpoint to stay in the car the night of the crime.

Connie Keel is now 50 years old and a fully rehabilitated woman. She has never been disciplined for violence—either prior to or during her incarceration. While in prison, Connie has advanced herself educationally, held leadership roles in several programs, and generated favorable reviews in multiple vocational areas. Also, Ms. Keel has been involved in more than 27 self-help groups while in prison.

The California Board of Parole Hearings (BPH) found on Oct. 29, 2008, in a case argued by the Post-Conviction Justice Project, that Ms. Keel "is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison." While this decision was momentous, her fate now rests in the hands of Gov. Schwarzenegger, who has not affirmed many parole suitability determinations, but has the opportunity to show compassion for a woman who has turned her life around.

Three weeks ago I launched a public awareness campaign and created a corresponding website,, which tells Connie's story and enables visitors to email a letter of support to the Governor. If we can generate enough support letters, Governor Schwarzenegger will have to give Connie's case more than a mere cursory glance, and in doing so, will understand that it would be inhumane and unjust to overrule the Parole Board and deny her freedom.

I hope that you will visit the website, send a letter of support, and help spread the word of Connie's story,, and her need for assistance.

Monday, February 09, 2009

Guest Shot: The Scourge of Judicial and Prosecutorial Immunity: The Prosecutorial and Police Destruction of the Life of Timothy Cole

The following opinion was originally published at on February 9, 2009.

The Scourge of Judicial and Prosecutorial Immunity: The Prosecutorial and Police Destruction of the Life of Timothy Cole
by William L. Anderson

Although my recent column urging that immunity for police, prosecutors, and judges be eliminated received a lot of positive response, nonetheless some lawyers and others wrote to complain that if this actually were done, then those same officers of the court would face endless litigation from unscrupulous criminals. I understand that point well and even am sympathetic to it, but in the end believe that if the rest of us are subject to endless lawsuits from unscrupulous people, then everyone should be put in the same situation, if there is to be equal justice for all.

The problem is that many of the unscrupulous people are the officers of the court. Furthermore, there really are few remedies available for people to take when it turns out that the prosecutors, police, and judges have been reckless with the truth and gained a wrongful conviction. Instead, we are told that it is something with which we have to live.

With those points in mind, I would like to present the case of Timothy Cole, wrongfully convicted in 1986 for a rape he never committed. Even after another person confessed to the rape, and even after DNA testing had confirmed that Cole did not rape Texas Tech sophomore Michelle Mallin in 1985, it did no good. Timothy Cole died in prison in 1999 from complications from asthma.

Cole went to prison because Mallin identified him in court as the rapist. Forget that so-called eyewitness identification is notoriously inaccurate, and forget that Cole’s defense already had alerted police and prosecutor Jim Bob Darnell had been given ample evidence of Cole’s innocence. None of that mattered to any of the government employees seeking a conviction, and a compliant jury rendered its verdict after about six hours of discussion.

Today, Darnell is the "Honorable Jim Bob Darnell," a state judge in Texas. Yet, his actions in the Cole case were anything but honorable, for an honorable man seeks for truth, not scalps, and there were lots of holes in Darnell’s case in 1986. First, Mallin noted that the man smoked heavily throughout the ordeal. Cole, who suffered from asthma, did not smoke and, indeed, would have had a severe reaction from smoking.

Second, Cole’s fingerprints were not found anywhere on or in Mallin’s car, despite the fact that Mallin testified that the man was not wearing gloves. Third, Cole had an alibi, as friends testified in court that he was with them when the alleged rape occurred. Darnell would have none of that. Even though it was clear that there was a serial rapist on the loose, and that Mallin’s rapist had engaged in similar patterns in other attacks, all of that information was suppressed, thanks to Darnell’s insistence and the judge’s compliance:

By then police had backed away from Tim as a suspect in multiple rapes. No physical evidence connected Tim to the crimes, and victims had not recognized him in the lineups.

But Darnell blocked near any mention of that in front of jurors. Police on the stand who more than a year earlier had hunted for a serial rapist made little comment on any connection to other rapes.

Again and again, Darnell hammered on how the witness had picked Tim out of the lineup…. And when Reggie and friends testified to Tim's focus on school, to his presence at a party at his duplex the night of the attack, Darnell shredded the alibi apart by casting doubt on the memories and motives of the witnesses.

Tim's defense attorney, Mike Brown, pushed back. Didn't a victim confuse Tim for Terry Lee Clark? he asked the detectives. Didn't police fail to find any physical evidence that this victim recognized? Didn't the rapes in vacant fields by knifepoint continue after Tim's arrest, like the ones committed by a violent offender, Jerry Wayne Johnson?

Darnell: "Are we going to try every rape that occurs in Lubbock County over a six month or one year period of time involving black males?"

There was still more reason to doubt, Brown said. Didn't this victim fail to describe some of Tim's more obvious features? Tim removed his shirt for the jury, showing his mottled back and arm, birthmarks that covered his upper body.

Darnell: "Is that person going to be embracing that individual and remembering everything about that person's back when they are being sexually assaulted and their soul is being taken from them?" he asked days later in closing as the victim burst into tears.

In fact, one of the reasons that Mallin was so sure of her identification was that police investigators insisted that Cole was the man and, in effect, confirmed for her the identification she had made. Yet, today, we know that the defense was right; it wasTerry Wayne Johnson who committed that and other rapes around Lubbock. Terry Wayne Johnson, a heavy smoker. Terry Wayne Johnson, whose DNA would be a match when checked many years later.

Let me put this case another way; Mike Brown, Cole’s attorney, did a better job of investigating the case than did the Lubbock Police and Jim Bob Darnell. In fact, the official investigators failed in their efforts, and ultimately depended upon lies, bullying, and intimidation. The last thing they wanted was the truth getting in the way of a conviction, and that was what they got.

I am not interested in hearing how police simply "made a mistake." If Mike Brown could figure out the case, why were the police and prosecution so reluctant to do the same? There was another clue that perhaps they were mistaken, Cole’s response to a plea offer.

Darnell and the police had promised Cole that if he would plead to a lesser charge, he only would receive probation. Cole refused, saying he would not plead to something he did not do. When in prison, he was offered the chance to get out on parole if only he would admit to having committed the crime for which he was imprisoned. He refused.

In other words, Timothy Cole was a man of principle. Jim Bob Darnell, the man called "Your Honor" every day of his working life, is not a man of principle. He decided in 1986 that Cole was guilty, and that he would not let facts or the truth get in the way of securing a conviction.

As I have said before, the facts of the case did not point to Timothy Cole. They pointed, instead, to Terry Wayne Johnson, but neither the police nor Darnell were interested in what might have happened. They had their story, and they were going to stick to it.

But the sorry tale still was not over. In 1995, after the statute of limitations had run out, Johnson confessed to Mallin’s rape. The people running the "justice" show in Texas were not interested. Cole’s family did not give up trying to clear Timothy of this rape, and they tried and tried, even after Timothy was dead. Finally, and reluctantly, in 2008 the authorities finally got around to testing the DNA, and found a match with Johnson. As one might suspect, there was none with Timothy Cole, but it did not matter, for Cole had been dead for nearly a decade.

So, Jim Bob Darnell, now the Honorable Jim Bob Darnell essentially murdered Timothy Cole. He had the opportunity in 1986 to get at the truth, but took the easy way out, bullying his way to a conviction. If he truly were "honorable," he immediately would resign his judgeship and turn in his law license and offer to clean toilets in the Cole household for the rest of his life.

Instead, Darnell will continue in his career as a judge, passing sentence perhaps on other people wrongfully convicted, agreeing with prosecutors on plea bargains in cases where the truth never will be permitted to be known. He will be able to continue his comfortable and "respectable" life as though he never had killed Timothy Cole.

That is why I believe that we must get rid of judicial and prosecutorial immunity. Not only does immunity protect the Mike Nifongs of this world – people who openly lie in court and are protected in ways that one cannot imagine for others – but it also permits those people who have taken the lives of others to continue as though nothing had happened.

In the real world, people are supposed to take responsibility for what they do. If someone sells me a faulty product, I can take legal action against that person. If someone in his or her dealings with me in the world of private enterprise lies or shades the truth, I have some recourse.

However, if a prosecutor lies or a judge permits a travesty of justice to occur in his courtroom, it is business as usual. There might be discipline for that person, but generally speaking, the prosecutor gives an excuse, the judge hides behind immunity, and everyone else whose life was shattered is expected to "pick up the pieces and move on."

If I or Lew Rockwell or most people reading this article were responsible for the death of another human being, there would be a price to pay. Our futures possibly would hold prison or perhaps execution. At the very least, we would be expected to compensate the wronged party with our own resources.

Jim Bob Darnell does not have to worry about that. He had immunity, he has immunity, and he can do what he damn well pleases. Not only will he never have to face justice for killing another human being, but he won’t even be inconvenienced. No, he did not have to make the trip to Austin when the courts finally exonerated Cole, and did not show his face in the courtroom; he was and is immune.

No system of justice can be perfect in a world of imperfect people. It is true that most people brought into the criminal justice system are guilty as charged, or have been involved in criminal activity. Furthermore, I also realize that plenty of "jailhouse lawyers" would use their time to file "frivolous" lawsuits against prosecutors, police and judges if given the chance.

Yet, I believe there could be a mechanism developed to deal with that problem. Certainly, the courts do not see a problem with, say, Microsoft facing a bevy of lawsuits because Bill Gates believes that the company should have lots of cash on hand. Judges certainly don’t worry about the plaintiffs’ bar destroying the ability of companies to function just because there is money to be made.

But my point is that a system in which the proverbial foxes guard the henhouse is no system of justice at all. It is an open invitation for lies and abuse, and the blood of Timothy Cole cries out every day because of it.

William L. Anderson, Ph.D. teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.He also is a consultant with American Economic Services.