On November 20, 2010, Laurie Bembenek died, following a brief battle with liver cancer. Her pardon application had languished before Wisconsin Gov. Jim Doyle's pardon advisory board for two years. When public pressure mounted on Doyle, in the closing days of his administration, to do the right thing, Doyle's lack of a spine and a conscience became obvious. First, he claimed that she had to appear at a pardon hearing. Then he announced he was doing away with pardon hearings during the last six weeks of his term, only to change his mind the next day and reinstate hearings. The next lame excuse was a claim that Laurie's pardon application was incomplete, that she had failed to notify the DA and the judge and get forms completed by them. But Laurie's steadfast investigator, Ira Robins, had personally served notice on both the DA and the judge. So while Florida's Gov. Charlie Crist pardoned the late Jim Morrison of the Doors for exposing himself at a concert 40 years ago, Wis. Gov. Jim Doyle grasped at one bogus excuse after another, to avoid pardoning a woman who was sacrificed to protect so many law enforcement, crime lab and legal careers.
The state's intent, of course, is to shovel the dirt covering Laurie's grave over the unconscionable crimes committed under color of law and in the name of "justice" to frame her for a murder she didn't commit. They presume they are safe from exposure now. They are wrong. Ira Robins has undertaken the task of making public all the evidence of Laurie's innocence and the guilt of everyone from the trigger man who committed the crime to the crooked cops who planted evidence, the prosecutors who hid evidence of Laurie's innocence and the crime lab analysts who altered tests to back up the prosecution. Find out what really happened. Why? Because it can happen to YOU.
Laurie Bembenek Information
Sunday, November 21, 2010
Friday, November 19, 2010
Lawrencia Bembenek: Innocent?
Editor's Note: Laurie Bembenek is dying of liver cancer. Thirty years ago, she was framed for the murder of her husband's ex-wife. A former Milwaukee police officer, Laurie was passing information about official corruption on the force to the FBI, which made her a perfect target. Two years ago, Laurie filed a pardon application with the Wisconsin governor. Gov. Jim Doyle leaves office at the end of 2010. He has been hiding behind his pardon advisory board and a string of excuses as to why he can't grant Laurie's pardon before she dies. Read Mike Jacobs' article. Then help Gov. Doyle grow a spine before he leaves office. Tell him to PARDON LAURIE BEMBENEK NOW.
By Regular Mail:
Gov. Jim Doyle
State of Wisconsin
P.O. Box 7863
Madison, WI 53707
Or send him a message via his website. Use the form at http://www.wisgov.state.wi.us/contact.asp?locid=19
by Mike Jacobs, WTMJ-TV, Milwaukee, Wisconsin
Could Lawrencia Bembenek be innocent? As she clings to life outside of Portland, Oregon, we explore the evidence.
Bembenek was convicted of killing her husband's ex-wife. She later escaped from prison, was captured in Canada and was brought back to Wisconsin. She pleaded "no contest" to second degree murder, was sentenced to time served and released.
But before she dies, she wants to clear her name.
Back in the late 70's, Lawrencia Bembenek gave pictures of Milwaukee police officers cavorting naked at a local park to Internal Affairs at the MPD. That made her enemy number one with the police department, where she was an officer. She says that prompted detectives to focus on her as the primary suspect, when Christine Schultz was killed in 1981.
But we have learned another man came forth. Chuck Kroeger vividly remembers the night Schultz was killed. Kroeger was a city electrician working near the crime scene. He saw a man jogging late that night. Kroeger reported it to the police the next day, and was shocked by the response he says he got.
"I called right away, and they told me that they had their suspect and they didn't need any more information," he recalled. "They said, they had their suspect, so...."
Kroeger's recollection adds credence to Bembenek's claim that police and prosecutors ignored leads and withheld evidence, unless they pointed to her.
"Oh they ignored anything exculpatory," Bembenek told Mike Jacobs. "And we didn't get access to anything that was in my behalf."
What's more, Bembenek says police tampered with evidence.
An off-duty gun was found in Bembenek's apartment. Bembenek's husband, Detective Elfred Schultz, retrieved the gun. He testified that it could not have been the murder weapon.
"After examining other things on the gun, it was my opinion it was not fired," Schultz testified.
Bembenek says, as a former police officer, she would not have been so stupid as to leave a murder weapon in her own closet. But prosecutors were able to convince a jury the off-duty gun was used to kill Christine Schultz.
Ten years later, in 1991, a forensics expert compared the muzzle of the gun to the contact wound on the victim's back. He found they did not match.
"The alleged murder weapon can be eliminated," he said.
The Milwaukee County medical examiner at the time, Dr. Chesley Irwin, had another reason to rule out the off-duty gun: There was no blood on it.
"One always gets blowback and you sometimes get hair but you always get blood and serum, and it simply wasn't there," Dr. Irwin said.
Then, there was the bullet removed from the victim. Prosecutors said the bullet matched the off-duty gun, but Bembenek maintains someone switched the murder bullet with another bullet that had been test-fired from the off-duty gun.
Police also say they found two of Bembenek's blond hairs on the bandana used to gag the victim. But Dr. Elaine Saumels, the deputy medical examiner who conducted the autopsy on Christine Schultz, said someone must have planted those hairs in an evidence bag, after the autopsy was done.
"I'm suggesting that somebody in the police department framed her....by planting a blond hair that was obviously hers. But was not found on the body at the time of the autopsy," Samuels said.
Then there was the red wig. Hairs from the wig were found on the victim's body. The wig was found in the plumbing of Bembenek's duplex. Bembenek says she would not have been dumb enough to try to flush an entire wig down a toilet without cutting it into little pieces. Her duplex shared a sewer pipe with the adjacent apartment. Bembenek believes a former roommate, turned adversary, flushed the wig down the neighbors' toilet.
"She asked them if she could change her clothes in the bathroom. And right after she got out of the bathroom, the toilet got plugged up. And that's all we know," Bembenek told us.
The controversy over Bembenek's conviction flared up after she was captured in Canada. Her lawyers there made a strong case that Bembenek was framed.
So in 1992, Milwaukee County launched a John Doe investigation. Among the findings, Judge William Haese said, "Significant mistakes were made in the investigation of the murder of Christine Schultz."
However, Judge Haese and Campion Kerston, a special prosecutor, found no evidence that Bembenek was framed.
"There simply is no evidence of criminal misconduct," Kerston said. "There were mistakes, but they didn't rise to the level of criminal wrong doing."
The John Doe did not try to determine if Bembenek was guilty or innocent. But the deputy medical examiner had her own theory on that.
"I think all the evidence points to her innocence, rather than her guilt," Samuels said.
Despite the circumstantial case, a jury convicted Bembenek of first degree murder.
Since then, Bembenek's defense team has learned more about the gun, the bullet, the gag, and the wig, but her attempts to appeal her conviction have all been denied.
A few months after the John Doe, Bbembenek pled "no contest" to second degree murder, was found guilty by a judge, and was released from custody. She has since appealed that conviction, all the way up to the U.S. Supreme Court. Each time, the appeal has been denied, not on the merits of the case, but on a legal technicality. When Bembenek pled "no contest", she gave up her right to appeal her conviction.
Unless she gets a pardon from Governor Doyle, she will forever remain convicted of second degree murder in the death of Christine Schultz.
By Regular Mail:
Gov. Jim Doyle
State of Wisconsin
P.O. Box 7863
Madison, WI 53707
Or send him a message via his website. Use the form at http://www.wisgov.state.wi.us/contact.asp?locid=19
by Mike Jacobs, WTMJ-TV, Milwaukee, Wisconsin
Could Lawrencia Bembenek be innocent? As she clings to life outside of Portland, Oregon, we explore the evidence.
Bembenek was convicted of killing her husband's ex-wife. She later escaped from prison, was captured in Canada and was brought back to Wisconsin. She pleaded "no contest" to second degree murder, was sentenced to time served and released.
But before she dies, she wants to clear her name.
Back in the late 70's, Lawrencia Bembenek gave pictures of Milwaukee police officers cavorting naked at a local park to Internal Affairs at the MPD. That made her enemy number one with the police department, where she was an officer. She says that prompted detectives to focus on her as the primary suspect, when Christine Schultz was killed in 1981.
But we have learned another man came forth. Chuck Kroeger vividly remembers the night Schultz was killed. Kroeger was a city electrician working near the crime scene. He saw a man jogging late that night. Kroeger reported it to the police the next day, and was shocked by the response he says he got.
"I called right away, and they told me that they had their suspect and they didn't need any more information," he recalled. "They said, they had their suspect, so...."
Kroeger's recollection adds credence to Bembenek's claim that police and prosecutors ignored leads and withheld evidence, unless they pointed to her.
"Oh they ignored anything exculpatory," Bembenek told Mike Jacobs. "And we didn't get access to anything that was in my behalf."
What's more, Bembenek says police tampered with evidence.
An off-duty gun was found in Bembenek's apartment. Bembenek's husband, Detective Elfred Schultz, retrieved the gun. He testified that it could not have been the murder weapon.
"After examining other things on the gun, it was my opinion it was not fired," Schultz testified.
Bembenek says, as a former police officer, she would not have been so stupid as to leave a murder weapon in her own closet. But prosecutors were able to convince a jury the off-duty gun was used to kill Christine Schultz.
Ten years later, in 1991, a forensics expert compared the muzzle of the gun to the contact wound on the victim's back. He found they did not match.
"The alleged murder weapon can be eliminated," he said.
The Milwaukee County medical examiner at the time, Dr. Chesley Irwin, had another reason to rule out the off-duty gun: There was no blood on it.
"One always gets blowback and you sometimes get hair but you always get blood and serum, and it simply wasn't there," Dr. Irwin said.
Then, there was the bullet removed from the victim. Prosecutors said the bullet matched the off-duty gun, but Bembenek maintains someone switched the murder bullet with another bullet that had been test-fired from the off-duty gun.
Police also say they found two of Bembenek's blond hairs on the bandana used to gag the victim. But Dr. Elaine Saumels, the deputy medical examiner who conducted the autopsy on Christine Schultz, said someone must have planted those hairs in an evidence bag, after the autopsy was done.
"I'm suggesting that somebody in the police department framed her....by planting a blond hair that was obviously hers. But was not found on the body at the time of the autopsy," Samuels said.
Then there was the red wig. Hairs from the wig were found on the victim's body. The wig was found in the plumbing of Bembenek's duplex. Bembenek says she would not have been dumb enough to try to flush an entire wig down a toilet without cutting it into little pieces. Her duplex shared a sewer pipe with the adjacent apartment. Bembenek believes a former roommate, turned adversary, flushed the wig down the neighbors' toilet.
"She asked them if she could change her clothes in the bathroom. And right after she got out of the bathroom, the toilet got plugged up. And that's all we know," Bembenek told us.
The controversy over Bembenek's conviction flared up after she was captured in Canada. Her lawyers there made a strong case that Bembenek was framed.
So in 1992, Milwaukee County launched a John Doe investigation. Among the findings, Judge William Haese said, "Significant mistakes were made in the investigation of the murder of Christine Schultz."
However, Judge Haese and Campion Kerston, a special prosecutor, found no evidence that Bembenek was framed.
"There simply is no evidence of criminal misconduct," Kerston said. "There were mistakes, but they didn't rise to the level of criminal wrong doing."
The John Doe did not try to determine if Bembenek was guilty or innocent. But the deputy medical examiner had her own theory on that.
"I think all the evidence points to her innocence, rather than her guilt," Samuels said.
Despite the circumstantial case, a jury convicted Bembenek of first degree murder.
Since then, Bembenek's defense team has learned more about the gun, the bullet, the gag, and the wig, but her attempts to appeal her conviction have all been denied.
A few months after the John Doe, Bbembenek pled "no contest" to second degree murder, was found guilty by a judge, and was released from custody. She has since appealed that conviction, all the way up to the U.S. Supreme Court. Each time, the appeal has been denied, not on the merits of the case, but on a legal technicality. When Bembenek pled "no contest", she gave up her right to appeal her conviction.
Unless she gets a pardon from Governor Doyle, she will forever remain convicted of second degree murder in the death of Christine Schultz.
Thursday, November 11, 2010
This Week in Innocence: Why the Hell is Kenny Hulshoff Still Practicing Law?
Reposted from Radley Balko's blog at Reason.com
Radley Balko | November 10, 2010
Last week, Missouri Circuit Court Judge Judge Warren McElwain declared Dale Helmig innocent of killing his mother in 1993. Helmig was convicted in 1996. In his ruling, McElwain declared Helmig to be "the victim of a fundamental miscarriage of justice."
Many factors contributed to Helmig's conviction, including an inept public defender, false police testimony, and snitch testimony from inmates. But McElwain went out of his way to criticize the behavior of former Missouri prosecutor Kenny Hulshoff.
In his opinion, McElwain cited numerous instances where either Hulshof or Schollmeyer presented testimony that was later shown to be false and that they should have known was false. One section is titled “Kenny Hulshof knew or should have known that the testimony presented was false that Dale Helmig tacitly admitted killing his mother.”
In another section, McElwain states that Hulshof made improper use of unsupported testimony that Dale Helmig and his mother had been in a fight in which Helmig allegedly threw hot coffee in his mother’s face. That altercation, at a restaurant, actually involved Norma Helmig and Ted Helmig, her estranged husband.
“Even though the prosecution could not find a witness to substantiate this allegation, that did not stop them from trying to put the unproven and very inflammatory fact before the jury,” McElwain wrote.
This is the second case in two years in which Hulshoff has been cited by a judge for misconduct that helped convict an innocent person. In February 2009, Missouri Circuit Court Judge Richard Callahan declared Joshua Kezer innocent of the 1992 murder of college student Angela Mischelle Lawless. Kezer was convicted in 1994. From the A.P. report last year:
[Callahan's] 44-page decision included a stinging rebuke of Hulshof, saying he withheld key evidence from defense attorneys and embellished details in his closing arguments.
Other than a statement Tuesday in which he affirmed his belief that Kezer is guilty, Hulshof has declined to comment.
The state's prosecution was based on the testimony of another suspect in Lawless' death who said he saw Kezer at a nearby convenience store on the night of the killing. But he gave conflicting testimony and three jail inmates who claimed Kezer had confessed to the killing later acknowledged lying in hopes of getting reduced sentences.
Back in 2008, the A.P. found five other cases in which Hulshoff was accused of prosecutorial misconduct. So what has happened to Hulshoff? For starters, he parlayed his tough-on-crime record as a prosecutor into a run for Congress, where he served for six terms. In 2008, he was the GOP nominee for governor of Missouri. He nearly became the president of the University of Missouri at Columbia. Currently, he has offices in Kansas City, St. Louis, and Washington, D.C. as a lobbyist for the white shoe law firm Polsinelli Shughart.
A couple weeks ago, a Reason commenter wrote that convicting an innocent person of murder ought have a similar effect on a prosecutor's career that, say, amputating the wrong limb would have on a doctor's. That sounds about right. At minimum it demonstrates a degree of negligence that ought to bar a prosecutor from ever prosecuting a case again. He has destroyed an innocent person's life, prolonged suffering for the victim's family and, of coruse, allowed the actual murderer to get away with the crime. If it can be shown that a prosecutor's deliberate misconduct contributed to a wrongful conviction, he should lose his license to practice law.
Hulshoff has done it twice. That we know of. And it's not like no one in Missouri knew about his aggressiveness. Yet he not only gets to continue practicing law as a jet-setting lobbyist, thanks to absolute immunity he'll never have to pay a dime of the fat salary those aggressive tactics won him to Joshua Kezer or Dale Helmig.
Radley Balko | November 10, 2010
Last week, Missouri Circuit Court Judge Judge Warren McElwain declared Dale Helmig innocent of killing his mother in 1993. Helmig was convicted in 1996. In his ruling, McElwain declared Helmig to be "the victim of a fundamental miscarriage of justice."
Many factors contributed to Helmig's conviction, including an inept public defender, false police testimony, and snitch testimony from inmates. But McElwain went out of his way to criticize the behavior of former Missouri prosecutor Kenny Hulshoff.
In his opinion, McElwain cited numerous instances where either Hulshof or Schollmeyer presented testimony that was later shown to be false and that they should have known was false. One section is titled “Kenny Hulshof knew or should have known that the testimony presented was false that Dale Helmig tacitly admitted killing his mother.”
In another section, McElwain states that Hulshof made improper use of unsupported testimony that Dale Helmig and his mother had been in a fight in which Helmig allegedly threw hot coffee in his mother’s face. That altercation, at a restaurant, actually involved Norma Helmig and Ted Helmig, her estranged husband.
“Even though the prosecution could not find a witness to substantiate this allegation, that did not stop them from trying to put the unproven and very inflammatory fact before the jury,” McElwain wrote.
This is the second case in two years in which Hulshoff has been cited by a judge for misconduct that helped convict an innocent person. In February 2009, Missouri Circuit Court Judge Richard Callahan declared Joshua Kezer innocent of the 1992 murder of college student Angela Mischelle Lawless. Kezer was convicted in 1994. From the A.P. report last year:
[Callahan's] 44-page decision included a stinging rebuke of Hulshof, saying he withheld key evidence from defense attorneys and embellished details in his closing arguments.
Other than a statement Tuesday in which he affirmed his belief that Kezer is guilty, Hulshof has declined to comment.
The state's prosecution was based on the testimony of another suspect in Lawless' death who said he saw Kezer at a nearby convenience store on the night of the killing. But he gave conflicting testimony and three jail inmates who claimed Kezer had confessed to the killing later acknowledged lying in hopes of getting reduced sentences.
Back in 2008, the A.P. found five other cases in which Hulshoff was accused of prosecutorial misconduct. So what has happened to Hulshoff? For starters, he parlayed his tough-on-crime record as a prosecutor into a run for Congress, where he served for six terms. In 2008, he was the GOP nominee for governor of Missouri. He nearly became the president of the University of Missouri at Columbia. Currently, he has offices in Kansas City, St. Louis, and Washington, D.C. as a lobbyist for the white shoe law firm Polsinelli Shughart.
A couple weeks ago, a Reason commenter wrote that convicting an innocent person of murder ought have a similar effect on a prosecutor's career that, say, amputating the wrong limb would have on a doctor's. That sounds about right. At minimum it demonstrates a degree of negligence that ought to bar a prosecutor from ever prosecuting a case again. He has destroyed an innocent person's life, prolonged suffering for the victim's family and, of coruse, allowed the actual murderer to get away with the crime. If it can be shown that a prosecutor's deliberate misconduct contributed to a wrongful conviction, he should lose his license to practice law.
Hulshoff has done it twice. That we know of. And it's not like no one in Missouri knew about his aggressiveness. Yet he not only gets to continue practicing law as a jet-setting lobbyist, thanks to absolute immunity he'll never have to pay a dime of the fat salary those aggressive tactics won him to Joshua Kezer or Dale Helmig.
Thursday, November 04, 2010
Thursday, October 14, 2010
“The Confessions” coming Tuesday, November 9 on PBS (check local listings)
Why would four innocent men confess to a brutal crime they didn’t commit? FRONTLINE producer Ofra Bikel (“Innocence Lost,” “An Ordinary Crime”) investigates the conviction of four Navy sailors for the rape and murder of a Norfolk, Va., woman in 1997. In interviews with the sailors, Bikel learns of some of the high-pressure police interrogation techniques -- including the threat of the death penalty, sleep deprivation, and intimidation -- that led each of the “Norfolk Four” to confess, despite any evidence linking them to the crime. All four sailors are now out of prison -- one served his sentence and the other three were granted conditional pardons last summer -- but the men were not exonerated as felons or sex offenders. The case raises disturbing questions about the actions of the police and prosecutors, who relied on the sailors’ often contradictory confessions for their convictions, and disregarded DNA evidence that pointed to a lone assailant who would later confess to the crime himself while serving prison time for another rape.
“Death by Fire” coming Tuesday, October 19 at 9 pm on PBS (check local listings)
Did Texas execute an innocent man? Several controversial death penalty cases are currently under examination in Texas and in other states, but it's the 2004 execution of Cameron Todd Willingham -- convicted for the arson deaths of his three young children -- that's now at the center of the national debate. With unique access to those closest to the case, FRONTLINE examines the Willingham conviction in light of new science that raises doubts about whether the fire at the center of the case was really arson at all. The film meticulously examines the evidence used to convict Willingham, provides an in-depth portrait of those most impacted by the case, and explores the explosive implications of the execution of a possibly innocent man.
Sunday, October 10, 2010
Here's how justice system let innocent woman sit in jail for 3 months
The following commentary by Mike Thomas was published in the Orlando Sentinel on October 10, 2010.
Dr. David Mackey, the former chief of staff at Winter Park Hospital, hired a hit man to kill a business partner who cheated him. It was captured on videotape. Yet Mackey never saw the inside of a jail cell for that crime.
Malenne Joseph, a poor and deeply religious immigrant from Haiti, was arrested for vandalizing a home. She did not do it. Yet she sat in a jail cell for three months, praying to be returned to her young children, as the State Attorney's Office sat on information that proved her innocence.
Welcome to law and order in the Ninth Judicial Circuit.
Dr. Mackey was arrested in 2003 after the hit man he hired turned out to be an undercover cop.
"If I could kill this guy and get away with it, I would," Mackey told him.
Possible penalties ranged up to life in prison.
But Mackey hardly needed defense counsel, as prosecutors and the judge rushed to his defense.
Assistant State Attorney Bill Vose said that "sending a person of Dr. Mackey's stature for this offense away to prison would certainly not be justice.''
Judge Bob Wattles seemed to agree.
"I don't believe this is the end of you practicing medicine,'' he told Mackey. "You're a tremendous asset. I'm not going to waste that."
Mackey got probation.
"All I can say,'' said Bill Vose, "is there is not two systems of justice in the cases I prosecute, and I manage all the prosecutors in the office, and we do our best to make sure that doesn't happen.''
Malenne certainly lacked Dr. Mackey's stature.
She was 29, poor and worked menial jobs. And it was her misfortune to be black and speak with an accent — because that vague description also fit a woman hired by a contractor in 2007 to paint the inside of a house.
The contractor did not pay her. Angry, the woman splashed paint over the interior of the house.
Malenne Joseph was not a painter. She never set foot in the house. She never met any of these people.
But that didn't matter once Orlando police Detective Jose Varela was on the case.
The contractor gave Varela the painter's cell-phone number. He dialed it and got a woman named "Marlene'' who confessed to the crime but would not come down to the police station.
Varela never traced the cell-phone number to see whom it was registered to.
Varela had another clue.
He told prosecutors that the owner of the house gave him the tag number of a vehicle that she saw the painter driving. And Varela said he traced that tag to Malenne or a relative.
In fact, the owner of the house had said she saw a black man driving a truck slowly in her neighborhood and got suspicious — so she gave the tag number to Varela.
The truck belonged to a black man with the last name of Joseph. Apparently, Varela then went fishing through motor-vehicle records until he came up with a black woman with the last name of Joseph — Malenne Joseph.
Varela got a photocopy of her drivers-license picture and showed it to the owner of the house and her sister. A more conscientious detective would have put that picture in with other pictures to see whether the women could pick out Malenne.
He did not. And, not surprisingly, the two women identified Malenne as the painter.
This happens so often there are studies about it. Witness identifications are the most unreliable evidence, especially when white victims are identifying black suspects. Cops know what they are doing. Why else would a cop be showing me this picture if she didn't do it?
The phone number wasn't linked to Malenne. The truck wasn't linked to Malenne. She wasn't picked out of a photo lineup.
None of that bothered the State Attorney's Office, which took the case to trial in June.
It also didn't seem to bother Judge Walter Komanski, who allowed — over defense objections — Varela to testify about "Marlene's" phone confession.
The jury heard eyewitness identification and a confession. Guilty.
A pre-sentence investigation would take two months. Komanski could have released Malenne, given her lack of a record and the fact this was a nonviolent crime.
Instead, he sent her to jail.
When new lawyers took over her case from the Public Defender's Office and asked for a retrial, that cost Malenne another month in jail, almost as if she were being punished for insisting on her innocence.
She continued to sit there after her lawyers filed evidence that proved her innocence — evidence that included phone records linking the number Varela dialed to a woman named Merline, and work records that showed Malenne was working at a nursing home on two of the days she supposedly was painting.
She continued sitting after Sentinel reporter Anthony Colarossi reported that evidence on the front page.
"The State will NOT reconsider it's [sic] position on the defendant being released…'' prosecutor Mexcye Roberts wrote defense attorneys on Sept. 10.
The State Attorney's Office, so anxious to keep an obviously guilty Dr. Mackey out of jail, was set on keeping an obviously innocent Malenne Joseph in jail. But faced with the overwhelming evidence, it finally relented and set her free Sept. 15.
Mike Thomas can be reached at 407-420-5525 or mthomas@orlandosentinel.com.
Dr. David Mackey, the former chief of staff at Winter Park Hospital, hired a hit man to kill a business partner who cheated him. It was captured on videotape. Yet Mackey never saw the inside of a jail cell for that crime.
Malenne Joseph, a poor and deeply religious immigrant from Haiti, was arrested for vandalizing a home. She did not do it. Yet she sat in a jail cell for three months, praying to be returned to her young children, as the State Attorney's Office sat on information that proved her innocence.
Welcome to law and order in the Ninth Judicial Circuit.
Dr. Mackey was arrested in 2003 after the hit man he hired turned out to be an undercover cop.
"If I could kill this guy and get away with it, I would," Mackey told him.
Possible penalties ranged up to life in prison.
But Mackey hardly needed defense counsel, as prosecutors and the judge rushed to his defense.
Assistant State Attorney Bill Vose said that "sending a person of Dr. Mackey's stature for this offense away to prison would certainly not be justice.''
Judge Bob Wattles seemed to agree.
"I don't believe this is the end of you practicing medicine,'' he told Mackey. "You're a tremendous asset. I'm not going to waste that."
Mackey got probation.
"All I can say,'' said Bill Vose, "is there is not two systems of justice in the cases I prosecute, and I manage all the prosecutors in the office, and we do our best to make sure that doesn't happen.''
Malenne certainly lacked Dr. Mackey's stature.
She was 29, poor and worked menial jobs. And it was her misfortune to be black and speak with an accent — because that vague description also fit a woman hired by a contractor in 2007 to paint the inside of a house.
The contractor did not pay her. Angry, the woman splashed paint over the interior of the house.
Malenne Joseph was not a painter. She never set foot in the house. She never met any of these people.
But that didn't matter once Orlando police Detective Jose Varela was on the case.
The contractor gave Varela the painter's cell-phone number. He dialed it and got a woman named "Marlene'' who confessed to the crime but would not come down to the police station.
Varela never traced the cell-phone number to see whom it was registered to.
Varela had another clue.
He told prosecutors that the owner of the house gave him the tag number of a vehicle that she saw the painter driving. And Varela said he traced that tag to Malenne or a relative.
In fact, the owner of the house had said she saw a black man driving a truck slowly in her neighborhood and got suspicious — so she gave the tag number to Varela.
The truck belonged to a black man with the last name of Joseph. Apparently, Varela then went fishing through motor-vehicle records until he came up with a black woman with the last name of Joseph — Malenne Joseph.
Varela got a photocopy of her drivers-license picture and showed it to the owner of the house and her sister. A more conscientious detective would have put that picture in with other pictures to see whether the women could pick out Malenne.
He did not. And, not surprisingly, the two women identified Malenne as the painter.
This happens so often there are studies about it. Witness identifications are the most unreliable evidence, especially when white victims are identifying black suspects. Cops know what they are doing. Why else would a cop be showing me this picture if she didn't do it?
The phone number wasn't linked to Malenne. The truck wasn't linked to Malenne. She wasn't picked out of a photo lineup.
None of that bothered the State Attorney's Office, which took the case to trial in June.
It also didn't seem to bother Judge Walter Komanski, who allowed — over defense objections — Varela to testify about "Marlene's" phone confession.
The jury heard eyewitness identification and a confession. Guilty.
A pre-sentence investigation would take two months. Komanski could have released Malenne, given her lack of a record and the fact this was a nonviolent crime.
Instead, he sent her to jail.
When new lawyers took over her case from the Public Defender's Office and asked for a retrial, that cost Malenne another month in jail, almost as if she were being punished for insisting on her innocence.
She continued to sit there after her lawyers filed evidence that proved her innocence — evidence that included phone records linking the number Varela dialed to a woman named Merline, and work records that showed Malenne was working at a nursing home on two of the days she supposedly was painting.
She continued sitting after Sentinel reporter Anthony Colarossi reported that evidence on the front page.
"The State will NOT reconsider it's [sic] position on the defendant being released…'' prosecutor Mexcye Roberts wrote defense attorneys on Sept. 10.
The State Attorney's Office, so anxious to keep an obviously guilty Dr. Mackey out of jail, was set on keeping an obviously innocent Malenne Joseph in jail. But faced with the overwhelming evidence, it finally relented and set her free Sept. 15.
Mike Thomas can be reached at 407-420-5525 or mthomas@orlandosentinel.com.
Sunday, October 03, 2010
Whom Can We Trust?
by James Scanlan, Esq.
Most people who have had substantial exposure to events that are reported in the press at least occasionally, if not commonly, find that the press has gotten it all wrong. They must then wonder what faith they can place in reportage of events they know little or nothing about. The same holds with respect to governmental institutions for people who are able to observe the conduct of those institutions closely enough to know that the institutions have gotten something all wrong – or have even knowingly gotten something all wrong. The matter is worth reflecting upon in light of the fact that on September 30, 2010, the Senate confirmed Robert E. O’Neill for the position of United States Attorney for the Middle District of Florida.
O’Neill is the subject of my Truth in Justice editorials of June 23, July 11, August 17, September 4, and September 26, 2010. Readers of those editorials and even a smattering of the materials to which they provide links would, I think, regard it to be true beyond any doubt that (a) O’Neill lied on his US Attorney application by falsely attributing a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean to a complaint filed by the defendant; and (b) that O’Neill was the subject of severe criticism by two courts for his conduct in the case. They would also regard it as virtually certain, or at least extremely likely, (c) that in the Dean case O’Neill engaged in egregious prosecutorial misconduct going well beyond the things considered by the courts that were so critical of his conduct; and (d) that in a 2005 deposition O’Neill falsely denied having made certain putatively threatening statements in the federal workplace.
In order to come to these conclusions, one does not have to leave one’s computer. The facts are set out in detail in materials made readily available on the Internet with electronic links to supporting documents. For example, the attachment to my July 9, 2010 letter to Attorney General Eric Holder made available by this link should leave no one in doubt as to the fact that O’Neill lied about the origination of the Bar Counsel investigation. The other points are supported in a similar manner. Thus, as should be clear from the documents discussed and made available in Addendum 7 to the Robert E. O’ Neill profile, it required virtually no work for the Justice Department or the Senate Judiciary Committee to reach solid conclusions on each of these matters. The truth was handed them on the electronic equivalent of a silver platter, leaving, at most, a few loose ends that could be readily addressed by simple phone calls.
And yet the Department of Justice allowed the O’Neill nomination to go forward while refusing to consider even those things that were made clearer to it than daylight. See in the September 4 and 26 editorials the discussion of Executive Office for United States Attorneys General Counsel Jay Macklin’s transparently inapplicable excuse for failing to investigate whether O’Neill lied on his US Attorney application – which Macklin had already to know was the case. For its part, as discussed in the September 26 item, the Senate Judiciary Committee did not simply show itself to be untroubled by these issues, but, through its chairman and ranking member, affirmatively led the public to believe that there existed no matters calling O’Neill’s integrity seriously into question.
Thus, based on what we have observed in a situation where the facts are crystal clear, when confronted with a situation that we know little about, what faith ought we to place in assurances by the Attorney General or the leadership of the Senate Judiciary Committee that there is nothing in the background of a candidate for a position of trust suggesting that the candidate in fact is not trustworthy? It seems that, whether we should be worrying more about the integrity or the competence of these institutions and their leadership, we cannot reasonably rely on such assurances.
Concern about the processes of government must make one wonder, for example, whether on concluding that it did not regard O’Neill’s false statement on his application to constitute an obstacle to his appointment as US Attorney, the Department of Justice felt a responsibility to advise the White House or the Senate Judiciary Committee of the fact of the false statement just in case those entities might have a different view. The same holds with regard to whether, notwithstanding the Department’s determination that it would not investigate O’Neill’s conduct in the Dean case because, in its view, the matters were or could have been addressed in litigation, the Department felt some obligation to advise the White House or Senate Judiciary Committee of the courts’ criticisms of O’Neill’s conduct or the probability that O’Neill engaged in more serious misconduct than that noted by the courts.
Interesting questions, I think, but beside the larger point here. On that point, we must look back again to Robert E. O’Neill’s observations in US v. Spellissy (discussed in the July 11 and September 26 editorials) to the effect that when you know a person is untrustworthy as to one thing, you cannot trust the person as to other things. I have previously mentioned the matter as it bears on the implications of the fact that, if we know nothing else about Robert E. O’Neill, we know that he lied on his US Attorney application. It warrants consideration as well for its bearing on the faith we can henceforth place in the Department of Justice and the Senate Judiciary Committee when they in some manner assure us that they have verified the trustworthiness of a high government official.
Most people who have had substantial exposure to events that are reported in the press at least occasionally, if not commonly, find that the press has gotten it all wrong. They must then wonder what faith they can place in reportage of events they know little or nothing about. The same holds with respect to governmental institutions for people who are able to observe the conduct of those institutions closely enough to know that the institutions have gotten something all wrong – or have even knowingly gotten something all wrong. The matter is worth reflecting upon in light of the fact that on September 30, 2010, the Senate confirmed Robert E. O’Neill for the position of United States Attorney for the Middle District of Florida.
O’Neill is the subject of my Truth in Justice editorials of June 23, July 11, August 17, September 4, and September 26, 2010. Readers of those editorials and even a smattering of the materials to which they provide links would, I think, regard it to be true beyond any doubt that (a) O’Neill lied on his US Attorney application by falsely attributing a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean to a complaint filed by the defendant; and (b) that O’Neill was the subject of severe criticism by two courts for his conduct in the case. They would also regard it as virtually certain, or at least extremely likely, (c) that in the Dean case O’Neill engaged in egregious prosecutorial misconduct going well beyond the things considered by the courts that were so critical of his conduct; and (d) that in a 2005 deposition O’Neill falsely denied having made certain putatively threatening statements in the federal workplace.
In order to come to these conclusions, one does not have to leave one’s computer. The facts are set out in detail in materials made readily available on the Internet with electronic links to supporting documents. For example, the attachment to my July 9, 2010 letter to Attorney General Eric Holder made available by this link should leave no one in doubt as to the fact that O’Neill lied about the origination of the Bar Counsel investigation. The other points are supported in a similar manner. Thus, as should be clear from the documents discussed and made available in Addendum 7 to the Robert E. O’ Neill profile, it required virtually no work for the Justice Department or the Senate Judiciary Committee to reach solid conclusions on each of these matters. The truth was handed them on the electronic equivalent of a silver platter, leaving, at most, a few loose ends that could be readily addressed by simple phone calls.
And yet the Department of Justice allowed the O’Neill nomination to go forward while refusing to consider even those things that were made clearer to it than daylight. See in the September 4 and 26 editorials the discussion of Executive Office for United States Attorneys General Counsel Jay Macklin’s transparently inapplicable excuse for failing to investigate whether O’Neill lied on his US Attorney application – which Macklin had already to know was the case. For its part, as discussed in the September 26 item, the Senate Judiciary Committee did not simply show itself to be untroubled by these issues, but, through its chairman and ranking member, affirmatively led the public to believe that there existed no matters calling O’Neill’s integrity seriously into question.
Thus, based on what we have observed in a situation where the facts are crystal clear, when confronted with a situation that we know little about, what faith ought we to place in assurances by the Attorney General or the leadership of the Senate Judiciary Committee that there is nothing in the background of a candidate for a position of trust suggesting that the candidate in fact is not trustworthy? It seems that, whether we should be worrying more about the integrity or the competence of these institutions and their leadership, we cannot reasonably rely on such assurances.
Concern about the processes of government must make one wonder, for example, whether on concluding that it did not regard O’Neill’s false statement on his application to constitute an obstacle to his appointment as US Attorney, the Department of Justice felt a responsibility to advise the White House or the Senate Judiciary Committee of the fact of the false statement just in case those entities might have a different view. The same holds with regard to whether, notwithstanding the Department’s determination that it would not investigate O’Neill’s conduct in the Dean case because, in its view, the matters were or could have been addressed in litigation, the Department felt some obligation to advise the White House or Senate Judiciary Committee of the courts’ criticisms of O’Neill’s conduct or the probability that O’Neill engaged in more serious misconduct than that noted by the courts.
Interesting questions, I think, but beside the larger point here. On that point, we must look back again to Robert E. O’Neill’s observations in US v. Spellissy (discussed in the July 11 and September 26 editorials) to the effect that when you know a person is untrustworthy as to one thing, you cannot trust the person as to other things. I have previously mentioned the matter as it bears on the implications of the fact that, if we know nothing else about Robert E. O’Neill, we know that he lied on his US Attorney application. It warrants consideration as well for its bearing on the faith we can henceforth place in the Department of Justice and the Senate Judiciary Committee when they in some manner assure us that they have verified the trustworthiness of a high government official.
Time to ban junk science from Texas courtrooms
The following op-ed was published by the Houston Chronicle on October 2, 2010.
By JEFF BLACKBURN, GARY UDASHEN and CORY SESSION
The Cameron Todd Willingham case has raised serious questions about the Texas criminal justice system. To many, the issue is whether Texas executed an innocent man. To the Innocence Project of Texas, the questions raised by this case are much bigger. To us, the real issue raised by the Willingham case is the ongoing use of "junk science" to falsely convict the innocent.
What is junk science? There are few things more convincing to a jury than scientific evidence presented by expert witnesses called by the state in a criminal case. Sometimes, however, the so-called science used by prosecutors isn't science at all.
Many Texas defendants have been convicted when fraudulent or invented forensic techniques were presented as scientific truth at trial. Others have gone to prison as a result of genuine science being twisted into false accusations of guilt. From the Houston Crime Lab disaster to the discredited testimony of experts like Ralph Erdmann and Fred Zain, Texas leads the nation in scandal over this problem. The Cameron Todd Willingham case, in which discredited arson science was used to get a conviction, is only one of many examples of the use of this kind of evidence.
Just last year, the Innocence Project of Texas exposed the work of Keith Pikett, a Fort Bend County Sheriff's deputy who made use of "dog-scent lineups" to link suspects to evidence retrieved from crime scenes. The Innocence Project report, entitled Dog Scent Lineups: A Junk Science Injustice, called attention to the numerous wrongful accusations and convictions that resulted from this form of junk science. Even though the self-trained deputy did not have a scientific background, he was allowed time and time again to testify in criminal trials about the alleged science behind his lineup procedures. Pikett's expert testimony was all junk and no science — and it was used repeatedly by prosecutors. In an encouraging move, the Texas Court of Criminal Appeals recently reversed a case based on Pikett's testimony. That move aside, prosecutors are still allowed to use charlatans like Pikett in Texas courtrooms.
The technique of using phony experts, unscientific evidence or just plain fraud dressed up as expert testimony is known as the use of junk science. It is being employed to get convictions in courtrooms all over the state to this day.
Fortunately, there are solutions to this problem. Innocent citizens who have been convicted in the past because of junk science need to have a fair day in court to prove that they were wrongfully convicted. Forensic labs need to be separated from law-enforcement agencies and made fully accountable to the scientific community. Trial procedures need to be improved so that innocent citizens will not be victimized by junk science in the future.
It will take a concerted effort by state agencies and lawmakers to make these changes in Texas. The Innocence Project of Texas calls on officials and lawmakers of Texas to step up to this challenge.
• We call on the governor, the attorney general and the Department of Public Safety to reopen and thoroughly investigate every Texas conviction based on junk science;
• We call on the Texas Forensic Sciences Commission to move forward and begin in-depth investigations of all junk science cases, not just cases involving arson;
• We call on the Texas Legislature to pass laws guaranteeing the innocent victims of this practice a day in court;
• We call on the Legislature and governor to make reforms that prohibit the use of junk science in Texas courtrooms.
The students, professors and practicing lawyers of the Innocence Project of Texas pledge their help in this effort. We are willing to help the government review and investigate every case of junk science that has ever made its way through the Texas court system.
In the meantime, we will continue to fight these cases in the courts of this state and before the Texas Forensic Sciences Commission. We have launched a full-scale campaign to do that.
As big as the Willingham case is, the junk science problem that turned it into a national controversy is much bigger. We can solve this problem, and we should do so without delay.
Blackburn is chief counsel, Udashen is president and Session is policy director of the Innocence Project of Texas.
Truth in Justice Editor's Note: It's time to ban junk science from all courtrooms, not just those in Texas.
By JEFF BLACKBURN, GARY UDASHEN and CORY SESSION
The Cameron Todd Willingham case has raised serious questions about the Texas criminal justice system. To many, the issue is whether Texas executed an innocent man. To the Innocence Project of Texas, the questions raised by this case are much bigger. To us, the real issue raised by the Willingham case is the ongoing use of "junk science" to falsely convict the innocent.
What is junk science? There are few things more convincing to a jury than scientific evidence presented by expert witnesses called by the state in a criminal case. Sometimes, however, the so-called science used by prosecutors isn't science at all.
Many Texas defendants have been convicted when fraudulent or invented forensic techniques were presented as scientific truth at trial. Others have gone to prison as a result of genuine science being twisted into false accusations of guilt. From the Houston Crime Lab disaster to the discredited testimony of experts like Ralph Erdmann and Fred Zain, Texas leads the nation in scandal over this problem. The Cameron Todd Willingham case, in which discredited arson science was used to get a conviction, is only one of many examples of the use of this kind of evidence.
Just last year, the Innocence Project of Texas exposed the work of Keith Pikett, a Fort Bend County Sheriff's deputy who made use of "dog-scent lineups" to link suspects to evidence retrieved from crime scenes. The Innocence Project report, entitled Dog Scent Lineups: A Junk Science Injustice, called attention to the numerous wrongful accusations and convictions that resulted from this form of junk science. Even though the self-trained deputy did not have a scientific background, he was allowed time and time again to testify in criminal trials about the alleged science behind his lineup procedures. Pikett's expert testimony was all junk and no science — and it was used repeatedly by prosecutors. In an encouraging move, the Texas Court of Criminal Appeals recently reversed a case based on Pikett's testimony. That move aside, prosecutors are still allowed to use charlatans like Pikett in Texas courtrooms.
The technique of using phony experts, unscientific evidence or just plain fraud dressed up as expert testimony is known as the use of junk science. It is being employed to get convictions in courtrooms all over the state to this day.
Fortunately, there are solutions to this problem. Innocent citizens who have been convicted in the past because of junk science need to have a fair day in court to prove that they were wrongfully convicted. Forensic labs need to be separated from law-enforcement agencies and made fully accountable to the scientific community. Trial procedures need to be improved so that innocent citizens will not be victimized by junk science in the future.
It will take a concerted effort by state agencies and lawmakers to make these changes in Texas. The Innocence Project of Texas calls on officials and lawmakers of Texas to step up to this challenge.
• We call on the governor, the attorney general and the Department of Public Safety to reopen and thoroughly investigate every Texas conviction based on junk science;
• We call on the Texas Forensic Sciences Commission to move forward and begin in-depth investigations of all junk science cases, not just cases involving arson;
• We call on the Texas Legislature to pass laws guaranteeing the innocent victims of this practice a day in court;
• We call on the Legislature and governor to make reforms that prohibit the use of junk science in Texas courtrooms.
The students, professors and practicing lawyers of the Innocence Project of Texas pledge their help in this effort. We are willing to help the government review and investigate every case of junk science that has ever made its way through the Texas court system.
In the meantime, we will continue to fight these cases in the courts of this state and before the Texas Forensic Sciences Commission. We have launched a full-scale campaign to do that.
As big as the Willingham case is, the junk science problem that turned it into a national controversy is much bigger. We can solve this problem, and we should do so without delay.
Blackburn is chief counsel, Udashen is president and Session is policy director of the Innocence Project of Texas.
Truth in Justice Editor's Note: It's time to ban junk science from all courtrooms, not just those in Texas.
Wednesday, September 29, 2010
Wisconsin AG should let light shine on his Kratz actions
Editorial originally published by the (Madison, WI) Capital Times on September 29, 2010.
We did not fully recognize what a serious mess Attorney General J.B. Van Hollen had created for himself until after our call last week for an independent investigation of Van Hollen’s handling of the Ken Kratz affair. Our editorial questioned why the state’s top law enforcement officer sat for almost a year on information that suggested the Calumet County district attorney, who has announced that he will resign soon, had abused his position by sending sexually aggressive text messages to a domestic violence victim.
Van Hollen’s office was made aware of the concerns regarding Kratz in the fall of 2009, yet the attorney general did not tell the governor, who has the authority to remove “for cause” officials who have engaged in misconduct. Van Hollen’s office also kept the public in the dark about the Kratz matter, despite the fact that the DA’s abusive behavior was of a nature that might reasonably have been expected to be repeated.
Those expectations were confirmed after the veil of official secrecy was finally removed. Other women did indeed come forward with details of similar incidents involving Kratz.
So why did Van Hollen, who before the scandal broke highlighted the support of fellow Republican prosecutor Kratz in his campaigns against Democratic foes, preside over an investigation that was opened and closed within days and that did not even question Kratz? And why did the attorney general then fail to take the necessary steps to ensure that the DA would not harass other women?
We began asking these questions in an editorial last week, which suggested that the attorney general should, for the sake of his own reputation and that of his office, invite an independent investigation of his handling of the Kratz scandal.
We, of course, pointed out that Van Hollen enjoyed the presumption of innocence. But we argued that, as the state’s chief law enforcement officer, the attorney general has a higher responsibility to ensure that questions about his conduct -- especially when it involves issues as important as the protection of domestic abuse victims -- are resolved.
Van Hollen’s response was to try to claim he had done everything by the book.
Even though his spokesman had just hours earlier suggested that Van Hollen was not personally involved, the attorney general went on television to do an interview in which he suggested that he had led a full-court press on the case that involved “dozens” of his staffers. At the same time, he tried to blame other agencies for failing to act.
In fact, Van Hollen seemed to be pointing the finger at everyone but himself. He even engaged in the classic politician’s move of claiming that he had kept the Kratz information secret in order to avoid jeopardizing the legal proceedings related to the domestic violence case in question. The only problem is that the case was resolved in April -- meaning that Van Hollen sat on the information for five months after his excuse for keeping it secret had disappeared.
Bizarrely, Van Hollen claimed credit for arranging for Kratz to quietly report his conduct to the Office of Lawyer Regulation, which is supposed to investigate and discipline attorneys. The office just as quietly found no grounds for acting against Kratz.
Van Hollen is now criticizing the Office of Lawyer Regulation for laxness, but that accusation applies to the attorney general himself as well as the OLR. Van Hollen’s excuses are as unsatisfying as they are self-serving.
That is why we called for an independent investigation.
And, of course, that is also why Van Hollen is now attacking us. His claim is that our call for an independent inquiry is nothing more than an embrace of partisan criticism.
Politicians of both parties, when they get in trouble, have attacked The Capital Times since the paper was founded as an independent progressive voice in 1917. That’s because politicians don’t like to be held to account. Democratic Attorney General Bronson La Follette didn’t like it when we led the chorus that questioned his management of the Department of Justice. Democratic Attorney General Jim Doyle didn’t like it when we went after him for what looked to us like inappropriate fundraising. Now Republican Van Hollen doesn’t like it when we say that an independent inquiry is needed to resolve questions about his handling of the Kratz case.
Over the years we have complimented and criticized Van Hollen. In 2006, he met with our editorial board and sought our endorsement, and we wrote well of him. We have praised him since his election, and we will do so again whenever his actions merit plaudits.
But it has long been the position of this newspaper that the office of state attorney general must always be recognized as independent and credible. Van Hollen’s handling of the Kratz case has raised questions not merely about him, but about the independence and credibility of the Department of Justice.
Van Hollen cannot talk his way out of trouble. He needs to accept that an independent inquiry is called for, and the sooner he accepts that, the better -- for Van Hollen and for the Department of Justice.
We did not fully recognize what a serious mess Attorney General J.B. Van Hollen had created for himself until after our call last week for an independent investigation of Van Hollen’s handling of the Ken Kratz affair. Our editorial questioned why the state’s top law enforcement officer sat for almost a year on information that suggested the Calumet County district attorney, who has announced that he will resign soon, had abused his position by sending sexually aggressive text messages to a domestic violence victim.
Van Hollen’s office was made aware of the concerns regarding Kratz in the fall of 2009, yet the attorney general did not tell the governor, who has the authority to remove “for cause” officials who have engaged in misconduct. Van Hollen’s office also kept the public in the dark about the Kratz matter, despite the fact that the DA’s abusive behavior was of a nature that might reasonably have been expected to be repeated.
Those expectations were confirmed after the veil of official secrecy was finally removed. Other women did indeed come forward with details of similar incidents involving Kratz.
So why did Van Hollen, who before the scandal broke highlighted the support of fellow Republican prosecutor Kratz in his campaigns against Democratic foes, preside over an investigation that was opened and closed within days and that did not even question Kratz? And why did the attorney general then fail to take the necessary steps to ensure that the DA would not harass other women?
We began asking these questions in an editorial last week, which suggested that the attorney general should, for the sake of his own reputation and that of his office, invite an independent investigation of his handling of the Kratz scandal.
We, of course, pointed out that Van Hollen enjoyed the presumption of innocence. But we argued that, as the state’s chief law enforcement officer, the attorney general has a higher responsibility to ensure that questions about his conduct -- especially when it involves issues as important as the protection of domestic abuse victims -- are resolved.
Van Hollen’s response was to try to claim he had done everything by the book.
Even though his spokesman had just hours earlier suggested that Van Hollen was not personally involved, the attorney general went on television to do an interview in which he suggested that he had led a full-court press on the case that involved “dozens” of his staffers. At the same time, he tried to blame other agencies for failing to act.
In fact, Van Hollen seemed to be pointing the finger at everyone but himself. He even engaged in the classic politician’s move of claiming that he had kept the Kratz information secret in order to avoid jeopardizing the legal proceedings related to the domestic violence case in question. The only problem is that the case was resolved in April -- meaning that Van Hollen sat on the information for five months after his excuse for keeping it secret had disappeared.
Bizarrely, Van Hollen claimed credit for arranging for Kratz to quietly report his conduct to the Office of Lawyer Regulation, which is supposed to investigate and discipline attorneys. The office just as quietly found no grounds for acting against Kratz.
Van Hollen is now criticizing the Office of Lawyer Regulation for laxness, but that accusation applies to the attorney general himself as well as the OLR. Van Hollen’s excuses are as unsatisfying as they are self-serving.
That is why we called for an independent investigation.
And, of course, that is also why Van Hollen is now attacking us. His claim is that our call for an independent inquiry is nothing more than an embrace of partisan criticism.
Politicians of both parties, when they get in trouble, have attacked The Capital Times since the paper was founded as an independent progressive voice in 1917. That’s because politicians don’t like to be held to account. Democratic Attorney General Bronson La Follette didn’t like it when we led the chorus that questioned his management of the Department of Justice. Democratic Attorney General Jim Doyle didn’t like it when we went after him for what looked to us like inappropriate fundraising. Now Republican Van Hollen doesn’t like it when we say that an independent inquiry is needed to resolve questions about his handling of the Kratz case.
Over the years we have complimented and criticized Van Hollen. In 2006, he met with our editorial board and sought our endorsement, and we wrote well of him. We have praised him since his election, and we will do so again whenever his actions merit plaudits.
But it has long been the position of this newspaper that the office of state attorney general must always be recognized as independent and credible. Van Hollen’s handling of the Kratz case has raised questions not merely about him, but about the independence and credibility of the Department of Justice.
Van Hollen cannot talk his way out of trouble. He needs to accept that an independent inquiry is called for, and the sooner he accepts that, the better -- for Van Hollen and for the Department of Justice.
Sunday, September 26, 2010
The Honorable Robert E. O’Neill Regrets That He is Unable to Answer Questions from the Audience
by James Scanlan, Esq.
In Truth in Justice editorials of June 23, July 11, August 17, and September 4, 2010, I have discussed Robert E. O’Neill, nominee for US Attorney for the Middle District of Florida. O’Neill is the prosecutor who lied on the US Attorney application he submitted to the Florida Federal Judicial Nominating Commission. In an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean, O’Neill attributed the initiation of the investigation to a complaint filed by the defendant. In fact, the investigation was self-initiated by Bar Counsel after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. Very likely, by making that false attribution before the Nominating Commission or at some other point in the vetting process O’Neill violated 18 U.S.C. § 1001. On September 23, 2010, despite having been repeatedly made aware of this and other matters calling O’Neill’s integrity into question, the Senate Judiciary Committee unanimously, and without discussion, favorably reported O’Neill’s nomination to the Senate floor. Typically this would mean that O’Neill shortly will be confirmed by the entire Senate – perhaps again unanimously.
This will by no means be a good thing for the country or the Middle District of Florida, and some fine and principled people in the US Attorney’s office are greatly distressed at the prospect of serving under a US Attorney of such doubtful character. But it is an ill wind that blows no one any good. Since 2008, I have devoted considerable effort to publicizing what I maintain is unconscionable conduct of O’Neill and other prosecutors in the Dean case (including Bruce C. Swartz, a principal subject of the September 4 editorial) and the Department of Justice’s manner of addressing (or involvement with) that conduct. Though I wrote letters to the Nominating Commission opposing O’Neill’s candidacy, as regards my efforts to secure widespread attention to O’Neill’s conduct, the President did me a great service by nominating O’Neill. O’Neill himself, by lying on his application, did me a similar service. Prior to the nomination, a Google search for “’Robert E. O’Neill’” did not yield the on-line profile I maintain on him until after the 40th result. For some time now, however, it has been the first result and hence, along with my editorials here and Paul Mirengoff’s on powerlineblog.com, is among the public’s readiest sources of information on O’Neill’s character and background.
My editorials and the materials discussed in Addendum 7 to the O’Neill profile hardly reflect a half-hearted effort to prevent O’Neill’s confirmation. But I have to recognize that O’Neill’s prominence as US Attorney for the next two or six years will substantially increase my ability to publicize in various mediums my vision of O’Neill’s character and conduct. And, of course, if this appointment should prove to be a stepping-stone to higher position such as US Senator or Florida Governor – both real possibilities – prospects for securing attention to that vision will be further enhanced.
Moreover, while O’Neill’s appointment will be saddening enough to people who like to believe in the processes of government, aspects of those processes have made O’Neill’s story more interesting and their exposure will serve the public interest. Section B.8 of the main Prosecutorial Misconduct page of jpscanlan.com presents an unflattering picture of the Department of Justice, whose handling of allegations against O’Neill when first brought to its attention in December 1994 may well have been influenced by the fact that O’Neill was in large part carrying out a scheme of deceit initially undertaken by the person who in December 1994 was Assistant Attorney General for the Criminal Division.
As discussed in the September 4 editorial, the Department’s recent actions regarding O’Neill – including the refusal by Jay Macklin, General Counsel for the Executive Office for United States Attorneys, to consider the allegation that O’Neill lied on his Nominating Commission application and during the vetting process because of the transparently inapplicable policy of not investigating matters that could have been raised in litigation – further illustrate the lengths to which the Department will go to avoid addressing disagreeable ethical issues concerning its high officials. One wonders whether Macklin, who will supervise O’Neill as US Attorney, will similarly disregard the evidence of O’Neill’s untrustworthiness when judging O’Neill’s candor in their official interactions.
In the Senate Judiciary Committee, while there was no specific discussion of allegations against O’Neill, in evident allusion thereto both Chairman Patrick J. Leahy and ranking Republican Jeff Sessions briefly mentioned that allegations against a US Attorney or Marshal nominee are carefully considered. In doing so, Leahy cited as an example an allegation that a nominee was involved in a bank robbery. Thus, rather in the manner in which O’Neill minimized the DC Bar Counsel investigation by falsely attributing it to a complaint filed by a convicted defendant, Leahy presumably chose that unlikely example because he believed it would raise fewer concerns than mention of allegations that the nominee – to take as examples just two matters that are in no way open to question – lied on his application or had been the subject of severe criticism by two courts. For his part, Sessions explained that the Committee made sure that “no serious meritorious complaints had been made.” It is hard to know whether Sessions meant that allegations to which he alluded were not meritorious or not serious. But neither meaning could withstand the light of day with regard either to the matters just mentioned or the more serious matters described in my letter to the Committee of June 16, 2010. At any rate, it is fitting enough that in approving the nomination for US Attorney of an individual known to have lied on his application, so eminent a body as the Senate Judiciary Committee would itself act disingenuously and do so in an uncommon exhibition of bipartisanship.
Assuming he is confirmed, O’Neill’s tenure ought to be an interesting one. For even had O’Neill never otherwise done anything unethical, the incongruity of there being a high law enforcement official who is known to have lied on his application is manifest. The July 11 editorial treats the false statement in the context of O’Neill’s tactic of calling defendants and witnesses liars and his even causing a government agent to give misleading testimony in order that O’Neill could lead a jury falsely to believe that a defendant lied about an interaction with the agent (see Addendum 1 below). The July 11 item highlights O’Neill’s “a liar is a liar” remark in US v. Spellissy, by which he meant that someone who lies about one thing cannot be trusted as to anything else. The quoted phrase implicates an additional irony. For those five words have been previously used in an observation by Tennessee Williams, to wit: “The only thing worse than a liar is a liar that’s also a hypocrite.”
There are enough people in the Middle District of Florida who do not like O’Neill for good or bad reasons that one day that editorial may be distributed at the venue of an O’Neill speech. Or at least someone in the audience is going to ask: “Is it true that you lied on your US Attorney application?” O’Neill may find it sensible to avoid such circumstances.
Addendum 1: I have lately given great attention to the false statement on O’Neill’s application because of the simplicity of the matter and because it cannot be disputed. But I do not want readers to lose sight of larger issues, such as O’Neill’s conduct regarding Supervisory Special Agent Alvin R. Cain, Jr., alluded to above and addressed in the September 4 editorial and varied other places. For there is conduct like lying on an application that ought to disqualify an individual from a high law enforcement position and there is conduct that takes one's breath away. Put another way, there are hypocrites and there are monsters.
Addendum 2: In the September 4 editorial, I suggested that the actions of Bruce C. Swartz (currently Deputy Assistant Attorney General in the Criminal Division in charge of international issues) in responding to allegations of prosecutorial abuse in the Dean case could serve as a case study of impermissible evasions and deceptions by prosecutors accused of misconduct. In Addendum 7 to the Bruce C. Swartz profile I have elaborated further on that proposition while suggesting ways to ensure that responses to misconduct allegations are truthful. In doing so, I point out an instance of a representation made on behalf of Swartz and O’Neill in defending themselves in the DC Bar Counsel investigation. Suffice it that it is a representation that no rational person would believe. Perhaps it will eventually be possible to present the full scope of the efforts to deceive Bar Counsel in the investigation that O’Neill falsely attributed to a complaint filed by the defendant.
In Truth in Justice editorials of June 23, July 11, August 17, and September 4, 2010, I have discussed Robert E. O’Neill, nominee for US Attorney for the Middle District of Florida. O’Neill is the prosecutor who lied on the US Attorney application he submitted to the Florida Federal Judicial Nominating Commission. In an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean, O’Neill attributed the initiation of the investigation to a complaint filed by the defendant. In fact, the investigation was self-initiated by Bar Counsel after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. Very likely, by making that false attribution before the Nominating Commission or at some other point in the vetting process O’Neill violated 18 U.S.C. § 1001. On September 23, 2010, despite having been repeatedly made aware of this and other matters calling O’Neill’s integrity into question, the Senate Judiciary Committee unanimously, and without discussion, favorably reported O’Neill’s nomination to the Senate floor. Typically this would mean that O’Neill shortly will be confirmed by the entire Senate – perhaps again unanimously.
This will by no means be a good thing for the country or the Middle District of Florida, and some fine and principled people in the US Attorney’s office are greatly distressed at the prospect of serving under a US Attorney of such doubtful character. But it is an ill wind that blows no one any good. Since 2008, I have devoted considerable effort to publicizing what I maintain is unconscionable conduct of O’Neill and other prosecutors in the Dean case (including Bruce C. Swartz, a principal subject of the September 4 editorial) and the Department of Justice’s manner of addressing (or involvement with) that conduct. Though I wrote letters to the Nominating Commission opposing O’Neill’s candidacy, as regards my efforts to secure widespread attention to O’Neill’s conduct, the President did me a great service by nominating O’Neill. O’Neill himself, by lying on his application, did me a similar service. Prior to the nomination, a Google search for “’Robert E. O’Neill’” did not yield the on-line profile I maintain on him until after the 40th result. For some time now, however, it has been the first result and hence, along with my editorials here and Paul Mirengoff’s on powerlineblog.com, is among the public’s readiest sources of information on O’Neill’s character and background.
My editorials and the materials discussed in Addendum 7 to the O’Neill profile hardly reflect a half-hearted effort to prevent O’Neill’s confirmation. But I have to recognize that O’Neill’s prominence as US Attorney for the next two or six years will substantially increase my ability to publicize in various mediums my vision of O’Neill’s character and conduct. And, of course, if this appointment should prove to be a stepping-stone to higher position such as US Senator or Florida Governor – both real possibilities – prospects for securing attention to that vision will be further enhanced.
Moreover, while O’Neill’s appointment will be saddening enough to people who like to believe in the processes of government, aspects of those processes have made O’Neill’s story more interesting and their exposure will serve the public interest. Section B.8 of the main Prosecutorial Misconduct page of jpscanlan.com presents an unflattering picture of the Department of Justice, whose handling of allegations against O’Neill when first brought to its attention in December 1994 may well have been influenced by the fact that O’Neill was in large part carrying out a scheme of deceit initially undertaken by the person who in December 1994 was Assistant Attorney General for the Criminal Division.
As discussed in the September 4 editorial, the Department’s recent actions regarding O’Neill – including the refusal by Jay Macklin, General Counsel for the Executive Office for United States Attorneys, to consider the allegation that O’Neill lied on his Nominating Commission application and during the vetting process because of the transparently inapplicable policy of not investigating matters that could have been raised in litigation – further illustrate the lengths to which the Department will go to avoid addressing disagreeable ethical issues concerning its high officials. One wonders whether Macklin, who will supervise O’Neill as US Attorney, will similarly disregard the evidence of O’Neill’s untrustworthiness when judging O’Neill’s candor in their official interactions.
In the Senate Judiciary Committee, while there was no specific discussion of allegations against O’Neill, in evident allusion thereto both Chairman Patrick J. Leahy and ranking Republican Jeff Sessions briefly mentioned that allegations against a US Attorney or Marshal nominee are carefully considered. In doing so, Leahy cited as an example an allegation that a nominee was involved in a bank robbery. Thus, rather in the manner in which O’Neill minimized the DC Bar Counsel investigation by falsely attributing it to a complaint filed by a convicted defendant, Leahy presumably chose that unlikely example because he believed it would raise fewer concerns than mention of allegations that the nominee – to take as examples just two matters that are in no way open to question – lied on his application or had been the subject of severe criticism by two courts. For his part, Sessions explained that the Committee made sure that “no serious meritorious complaints had been made.” It is hard to know whether Sessions meant that allegations to which he alluded were not meritorious or not serious. But neither meaning could withstand the light of day with regard either to the matters just mentioned or the more serious matters described in my letter to the Committee of June 16, 2010. At any rate, it is fitting enough that in approving the nomination for US Attorney of an individual known to have lied on his application, so eminent a body as the Senate Judiciary Committee would itself act disingenuously and do so in an uncommon exhibition of bipartisanship.
Assuming he is confirmed, O’Neill’s tenure ought to be an interesting one. For even had O’Neill never otherwise done anything unethical, the incongruity of there being a high law enforcement official who is known to have lied on his application is manifest. The July 11 editorial treats the false statement in the context of O’Neill’s tactic of calling defendants and witnesses liars and his even causing a government agent to give misleading testimony in order that O’Neill could lead a jury falsely to believe that a defendant lied about an interaction with the agent (see Addendum 1 below). The July 11 item highlights O’Neill’s “a liar is a liar” remark in US v. Spellissy, by which he meant that someone who lies about one thing cannot be trusted as to anything else. The quoted phrase implicates an additional irony. For those five words have been previously used in an observation by Tennessee Williams, to wit: “The only thing worse than a liar is a liar that’s also a hypocrite.”
There are enough people in the Middle District of Florida who do not like O’Neill for good or bad reasons that one day that editorial may be distributed at the venue of an O’Neill speech. Or at least someone in the audience is going to ask: “Is it true that you lied on your US Attorney application?” O’Neill may find it sensible to avoid such circumstances.
Addendum 1: I have lately given great attention to the false statement on O’Neill’s application because of the simplicity of the matter and because it cannot be disputed. But I do not want readers to lose sight of larger issues, such as O’Neill’s conduct regarding Supervisory Special Agent Alvin R. Cain, Jr., alluded to above and addressed in the September 4 editorial and varied other places. For there is conduct like lying on an application that ought to disqualify an individual from a high law enforcement position and there is conduct that takes one's breath away. Put another way, there are hypocrites and there are monsters.
Addendum 2: In the September 4 editorial, I suggested that the actions of Bruce C. Swartz (currently Deputy Assistant Attorney General in the Criminal Division in charge of international issues) in responding to allegations of prosecutorial abuse in the Dean case could serve as a case study of impermissible evasions and deceptions by prosecutors accused of misconduct. In Addendum 7 to the Bruce C. Swartz profile I have elaborated further on that proposition while suggesting ways to ensure that responses to misconduct allegations are truthful. In doing so, I point out an instance of a representation made on behalf of Swartz and O’Neill in defending themselves in the DC Bar Counsel investigation. Suffice it that it is a representation that no rational person would believe. Perhaps it will eventually be possible to present the full scope of the efforts to deceive Bar Counsel in the investigation that O’Neill falsely attributed to a complaint filed by the defendant.
Tuesday, September 21, 2010
Anatomy of a Misdiagnosis
The following op-ed was published in the Los Angeles Times on September 20, 2010.
Anatomy of a Misdiagnosis
By DEBORAH TUERKHEIMER
A WOMAN calls 911 to report that a baby in her care has gone limp. Rescue workers respond immediately, but the infant dies that night. Though there are no external injuries or witnesses to any abuse, a jury convicts the woman of shaking the baby to death.
More than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome. And since the early 1990s, many hundreds of people — mothers, fathers and babysitters — have been imprisoned on suspicion of murder by shaking. The diagnosis is so rooted in the public consciousness that, this year, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.”
Yet experts are questioning the scientific basis for shaken baby syndrome. Increasingly, it appears that a good number of the people charged with and convicted of homicide may be innocent.
For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain.
But closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.
What’s more, doctors have learned that in many cases in which infants have triad symptoms, there can be a lag of hours or even days between the time of the injury and the point when the baby loses consciousness. This contradicts the idea that it’s possible to identify the person responsible by looking to the baby’s most recent caregiver.
Last year, the American Academy of Pediatrics recommended that the diagnosis of shaken baby syndrome be discarded and replaced with “abusive head trauma,” which does not imply that only shaking could have caused the injury.
The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges.
Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science.
Despite the shift in scientific consensus, debate about the legitimacy of the shaken baby syndrome diagnosis continues. Some scientists point to studies using dummies modeled on the anatomy of infants as evidence that shaking cannot possibly generate sufficient force to cause the triad of symptoms — or that it could not do so without also causing injury to the infant’s neck or spinal cord. But others challenge the validity of these studies and maintain the belief that shaking alone can (though it need not) cause the triad.
What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.
In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States.
For decades, shaken baby syndrome has been, in essence, a medical diagnosis of murder. But going forward, prosecutors, judges and juries should exercise greater skepticism. The triad of symptoms alone cannot prove beyond a reasonable doubt that an infant has been fatally shaken.
Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan.
Anatomy of a Misdiagnosis
By DEBORAH TUERKHEIMER
A WOMAN calls 911 to report that a baby in her care has gone limp. Rescue workers respond immediately, but the infant dies that night. Though there are no external injuries or witnesses to any abuse, a jury convicts the woman of shaking the baby to death.
More than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome. And since the early 1990s, many hundreds of people — mothers, fathers and babysitters — have been imprisoned on suspicion of murder by shaking. The diagnosis is so rooted in the public consciousness that, this year, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.”
Yet experts are questioning the scientific basis for shaken baby syndrome. Increasingly, it appears that a good number of the people charged with and convicted of homicide may be innocent.
For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain.
But closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.
What’s more, doctors have learned that in many cases in which infants have triad symptoms, there can be a lag of hours or even days between the time of the injury and the point when the baby loses consciousness. This contradicts the idea that it’s possible to identify the person responsible by looking to the baby’s most recent caregiver.
Last year, the American Academy of Pediatrics recommended that the diagnosis of shaken baby syndrome be discarded and replaced with “abusive head trauma,” which does not imply that only shaking could have caused the injury.
The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges.
Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science.
Despite the shift in scientific consensus, debate about the legitimacy of the shaken baby syndrome diagnosis continues. Some scientists point to studies using dummies modeled on the anatomy of infants as evidence that shaking cannot possibly generate sufficient force to cause the triad of symptoms — or that it could not do so without also causing injury to the infant’s neck or spinal cord. But others challenge the validity of these studies and maintain the belief that shaking alone can (though it need not) cause the triad.
What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.
In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States.
For decades, shaken baby syndrome has been, in essence, a medical diagnosis of murder. But going forward, prosecutors, judges and juries should exercise greater skepticism. The triad of symptoms alone cannot prove beyond a reasonable doubt that an infant has been fatally shaken.
Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan.
Saturday, September 04, 2010
Doubtful Progress on Professional Responsibility at DOJ
by James Scanlan, J.D.
When the Department of Justice had to have the conviction of the late Senator Ted Stevens overturned, Attorney General Eric H. Holder, Jr. spoke as if he intended to make prosecutorial integrity a Department priority and immediately appointed new heads of the Office of Professional Responsibility (OPR) and the Public Integrity Section of the Criminal Division. But there yet is little evidence that the Department actually understands the basic obligations of a prosecutorial authority and some evidence that it does not.
My July 11, 2010 editorial here regarding US Attorney nominee Robert E. O’Neill touched upon a particularly egregious prosecutorial abuse in United States v. Dean. The matter is discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page and Section B of the Robert E. O’Neill profile and Sections A and E and Addendums 3 and 4 of a similar profile on Bruce C. Swartz . O’Neill and Swartz pressured a government agent into giving misleading testimony in order that O’Neill could lead the jury falsely to believe that the defendant lied about a conversation with the agent. The idea was that the agent’s testimony that seemed to directly contradict the defendant would be literally true because it technically applied to a different date from that given by the defendant. O’Neill’s repeated emphasis of the agent’s testimony in provocatively asserting that the defendant lied on the stand may have had a substantial impact on the outcome of the trial.
In a post-trial motion alleging pervasive prosecutorial abuse, the defendant maintained that the agent committed perjury and that prosecutors knew or should have known that he did. Swartz, who defended against the allegation, did not have the temerity to advance the literal truth rationale to the court, which almost overturned the verdict because of other identified prosecutor misconduct. Instead, Swartz sought to cover up his own and O’Neill’s actions by leading the court to believe that the testimonies were irreconcilable and that the agent told the truth while the defendant lied. As part of an aggressive strategy in this regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation. In seeking to prevent discovery into the matter, Swartz and those aiding him may have engaged in a conspiracy to obstruct of justice. In any case, several aspects of prosecutor conduct in the matter must be considered heinous.
Since at least 2001 Swartz has been a Deputy Assistant Attorney General in the Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. But when last year I brought to the Department’s attention that Swartz’s actions in the Dean case indicated that he was unfit to represent the United States, the Department refused even to consider whether my allegations were true, stating that is was OPR policy not to investigate matters that were or could have been raised in litigation.
More recently, Jay Macklin, General Counsel of the Executive Office for United States Attorneys, even relied on this policy as a basis for refusing to consider whether O’Neill’s June 2009 false statement on his US Attorney application (a subject of editorials here dated June 23, 2010, July 11, 2010, and August 17, 2010) should cause O’Neill to be removed from his current position as Chief of the Criminal Division of the US Attorney’s Office in the Middle District of Florida. Quite obviously, O’Neill’s false statement on his application is not a matter that was or could have been raised in litigation (save in a prosecution of O’Neill), as discussed in my August 18, 2010 letter to Macklin and Holder. So blatant a reliance on an inapplicable policy to ignore a false statement by a high-level prosecutor and US Attorney nominee may reveal much about the Department’s willingness to address disagreeable integrity issues arising within its ranks, as will a failure of the Department to advise the President to withdraw the O’Neill nomination.
My January 15, 2010 letter to OPR Deputy Counsel Judith B. Wish addresses reasons that the stated OPR policy is misguided even as to matters that in fact were or could have been raised in litigation. The policy treats prosecutorial abuses as matters solely to be revealed by defense counsel and courts and ignores the Department’s own obligation to advise courts of prosecutorial abuses regardless of whether a defendant was able to effectively expose them. And, as illustrated with regard to Swartz and O’Neill, it ignores Department obligations to ensure the trustworthiness of persons who represent it internationally or domestically. In any event, continuation of the policy is inconsistent with a commitment to ensuring the integrity of federal prosecutions or the essential honesty of Department attorneys.
But there is another, somewhat ironical, indication of the Department’s failure to grasp certain fundamentals. In October 2009, Holder announced the creation of professional responsibility award, which will first be presented in October 2010. According special recognition to government attorneys for demonstrating professional responsibility – as if there existed levels at which government attorneys fulfill their ethical obligations – hardly suggests a refined understanding of the standards of conduct citizens have a right to expect from all government attorneys. Yet presumably some number of high-level Department officials agreed that the award would at least enhance the Department’s image if not actually improve ethical standards. Given that countless Department attorneys will appreciate the incongruity of what in effect is an award for being honest, there is some prospect that even within the Department the award will eventually be a subject of derision.
In any case, more useful than a dubious decoration for professional responsibility would be firm requirements as to the manner in which prosecutors respond to allegations of misconduct, including that they must provide the unalloyed truth about what they did and why they did it, and that they must do so in affidavits. For purposes of illustrating the impermissible deceptions or evasions in prosecutor responses to misconduct allegations, the Department will find a useful case study in the actions of Bruce C. Swartz detailed in his profile page and the materials it references. The Department should also abrogate the OPR policy that causes conduct of O’Neill and Swartz in the Dean case still to go unexamined and otherwise make clear, not only that surviving court scrutiny of allegations of abuse will not end a matter, but that deceiving a court in responding to such allegations is itself a serious abuse if not also a crime.
See also discussion of Attorney General Janet Reno’s 1994 ethics initiative in Section B.8 of my Prosecutorial Misconduct page and the profile page on Jo Ann Harris, the person who first hired Bruce C. Swartz into the Criminal Division.
When the Department of Justice had to have the conviction of the late Senator Ted Stevens overturned, Attorney General Eric H. Holder, Jr. spoke as if he intended to make prosecutorial integrity a Department priority and immediately appointed new heads of the Office of Professional Responsibility (OPR) and the Public Integrity Section of the Criminal Division. But there yet is little evidence that the Department actually understands the basic obligations of a prosecutorial authority and some evidence that it does not.
My July 11, 2010 editorial here regarding US Attorney nominee Robert E. O’Neill touched upon a particularly egregious prosecutorial abuse in United States v. Dean. The matter is discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page and Section B of the Robert E. O’Neill profile and Sections A and E and Addendums 3 and 4 of a similar profile on Bruce C. Swartz . O’Neill and Swartz pressured a government agent into giving misleading testimony in order that O’Neill could lead the jury falsely to believe that the defendant lied about a conversation with the agent. The idea was that the agent’s testimony that seemed to directly contradict the defendant would be literally true because it technically applied to a different date from that given by the defendant. O’Neill’s repeated emphasis of the agent’s testimony in provocatively asserting that the defendant lied on the stand may have had a substantial impact on the outcome of the trial.
In a post-trial motion alleging pervasive prosecutorial abuse, the defendant maintained that the agent committed perjury and that prosecutors knew or should have known that he did. Swartz, who defended against the allegation, did not have the temerity to advance the literal truth rationale to the court, which almost overturned the verdict because of other identified prosecutor misconduct. Instead, Swartz sought to cover up his own and O’Neill’s actions by leading the court to believe that the testimonies were irreconcilable and that the agent told the truth while the defendant lied. As part of an aggressive strategy in this regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation. In seeking to prevent discovery into the matter, Swartz and those aiding him may have engaged in a conspiracy to obstruct of justice. In any case, several aspects of prosecutor conduct in the matter must be considered heinous.
Since at least 2001 Swartz has been a Deputy Assistant Attorney General in the Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. But when last year I brought to the Department’s attention that Swartz’s actions in the Dean case indicated that he was unfit to represent the United States, the Department refused even to consider whether my allegations were true, stating that is was OPR policy not to investigate matters that were or could have been raised in litigation.
More recently, Jay Macklin, General Counsel of the Executive Office for United States Attorneys, even relied on this policy as a basis for refusing to consider whether O’Neill’s June 2009 false statement on his US Attorney application (a subject of editorials here dated June 23, 2010, July 11, 2010, and August 17, 2010) should cause O’Neill to be removed from his current position as Chief of the Criminal Division of the US Attorney’s Office in the Middle District of Florida. Quite obviously, O’Neill’s false statement on his application is not a matter that was or could have been raised in litigation (save in a prosecution of O’Neill), as discussed in my August 18, 2010 letter to Macklin and Holder. So blatant a reliance on an inapplicable policy to ignore a false statement by a high-level prosecutor and US Attorney nominee may reveal much about the Department’s willingness to address disagreeable integrity issues arising within its ranks, as will a failure of the Department to advise the President to withdraw the O’Neill nomination.
My January 15, 2010 letter to OPR Deputy Counsel Judith B. Wish addresses reasons that the stated OPR policy is misguided even as to matters that in fact were or could have been raised in litigation. The policy treats prosecutorial abuses as matters solely to be revealed by defense counsel and courts and ignores the Department’s own obligation to advise courts of prosecutorial abuses regardless of whether a defendant was able to effectively expose them. And, as illustrated with regard to Swartz and O’Neill, it ignores Department obligations to ensure the trustworthiness of persons who represent it internationally or domestically. In any event, continuation of the policy is inconsistent with a commitment to ensuring the integrity of federal prosecutions or the essential honesty of Department attorneys.
But there is another, somewhat ironical, indication of the Department’s failure to grasp certain fundamentals. In October 2009, Holder announced the creation of professional responsibility award, which will first be presented in October 2010. According special recognition to government attorneys for demonstrating professional responsibility – as if there existed levels at which government attorneys fulfill their ethical obligations – hardly suggests a refined understanding of the standards of conduct citizens have a right to expect from all government attorneys. Yet presumably some number of high-level Department officials agreed that the award would at least enhance the Department’s image if not actually improve ethical standards. Given that countless Department attorneys will appreciate the incongruity of what in effect is an award for being honest, there is some prospect that even within the Department the award will eventually be a subject of derision.
In any case, more useful than a dubious decoration for professional responsibility would be firm requirements as to the manner in which prosecutors respond to allegations of misconduct, including that they must provide the unalloyed truth about what they did and why they did it, and that they must do so in affidavits. For purposes of illustrating the impermissible deceptions or evasions in prosecutor responses to misconduct allegations, the Department will find a useful case study in the actions of Bruce C. Swartz detailed in his profile page and the materials it references. The Department should also abrogate the OPR policy that causes conduct of O’Neill and Swartz in the Dean case still to go unexamined and otherwise make clear, not only that surviving court scrutiny of allegations of abuse will not end a matter, but that deceiving a court in responding to such allegations is itself a serious abuse if not also a crime.
See also discussion of Attorney General Janet Reno’s 1994 ethics initiative in Section B.8 of my Prosecutorial Misconduct page and the profile page on Jo Ann Harris, the person who first hired Bruce C. Swartz into the Criminal Division.
Friday, September 03, 2010
The low cost of injustice
The following opinion was originally published by NewsBuzz, by Milwaukee Magazine, on September 3, 2010.
By Matt Hrodey
The wrongful imprisonment of Green Bay’s Cody Vandenberg for 15 years on a recently overturned conviction of robbery and attempted homicide was one of the worst such cases in state history. Even if prosecutors decide against retrying or appealing the case, however, Vandenberg is unlikely to collect much in reparations, because Wisconsin’s compensation program for exonerated convicts is badly underfunded.
A shrinking minority of states, 23, offers no compensation program at all for people wrongfully imprisoned. In Wisconsin, after proving their innocence before the Wisconsin Claims Board, a panel of state officials representing the Governor, state Legislature, Department of Administration and Department of Justice, exonerated convicts can receive up to $5,000 a year. Total compensation is capped at $25,000.
“It’s miserable. It’s the lowest compensation amount of any state in the nation and the second-lowest cap in the country,” says Keith Findley, a UW-Madison law professor and co-founder of the Wisconsin Innocence Project, a program at the university providing legal aid to people who may have been wrongfully convicted.
Findley is part of Vandenberg’s defense team. Facing a total of 80 years in prison, the now 45-year-old man was released on Tuesday after a court of appeals decision reversed his conviction in Brown County Circuit Court and concluded “he is entitled to a new trial in the interest of justice.” Vandenberg had been convicted of the 1996 robbery and stabbing of a Bellevue man. But Vandenberg’s alleged getaway driver, Larry Pearson, has since confessed to the crime – most recently under oath in Brown County Circuit Court in a hearing for post-conviction relief requested by the defense.
Pearson and Vandenberg were coworkers at a local repair shop. During Vandenberg’s trial in 1996, Pearson testified as part of his own plea deal but didn’t implicate Vandenberg. Pearson instead claimed the stabbing wounds were inflicted by a third man, a stranger he had met at a bar.
At the trial, the prosecution argued Pearson was trying to cover for his friend Vandenberg by making up the story about “the stranger” and called to the stand a man who had spent time in jail with Pearson. The fellow inmate said Pearson told varying accounts of what happened on the night in question, including one version where Vandenberg was the stabber. But the key piece of evidence, according to the appeals court, was the stabbing victim’s identification of Vandenberg. He and Vandenberg looked similar – but Vandenberg had a beard at the time.
To the jury, it sounded like convincing evidence. But a series of wrongful convictions have led judges across the country to treat identifications of defendants with skepticism. “Eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and is responsible for more wrongful convictions than all other causes combined,” the Wisconsin Supreme Court noted in 2005.
The appeals court wrote that the victim’s identification of Vandenberg was the key to the prosecution’s case, a key that looked a little rusty in light of new evidence provided by the defense that the victim was intoxicated during the attack with a blood alcohol content of .22. Prosecutors lacked “any physical evidence tying Vandenberg to the scene,” the opinion says. Yet Pearson’s bloody shoe-print was found inside the trailer.
Pearson, it turns out, actually confessed to his defense attorney at the time he was guilty of the stabbing – but the lawyer, because of attorney-client privilege, was unable to reveal the confession.
Vandenberg’s first appeal failed. Filed after his trial, it was based not on Pearson’s confession, unknown to him at the time, but on his contention that his defense attorney didn’t present evidence establishing an alibi for him.
Released from custody on Tuesday, Vandenberg will remain under house arrest until he returns to court on Sept. 28 to learn if prosecutors will retry his case in light of Pearson’s confession or challenge the appeals court decision before the Supreme Court.
Making a claim of innocence
If they decide to do neither, Vandenberg can petition the Claims Board for compensation, but in doing so he faces a months-long process whereby he must prove his innocence with “clear and convincing” evidence. “For many truly innocent people, that’s a burden that’s difficult to meet. How do you prove a negative?” says Findley.
Wisconsin law also requires exonerated convicts to prove they didn’t contribute to their conviction in some way through a false confession or some other means. This violates the national Innocence Project’s guidelines for state compensation programs. “This denies justice to those who were coerced, explicitly or implicitly, into confessing or pleading guilty to crimes it was proven they did not commit,” the guidelines say.
Some states provide immediate assistance to exonerated prisoners for housing, psychological counseling, medical aid, job training or other needs, none of which are provided by Wisconsin. “They have nothing as they walk out of prison,” says Mary Delaney, a Madison attorney and member of the Wisconsin Exoneree Network.
Wrongful imprisonment, she says, “is extraordinarily traumatic. A lot of people become agoraphobic and don’t feel like they can rejoin the community.” Long gaps in their employment history are difficult to explain to prospective employers – who may have also seen the charges filed against them on the Wisconsin Circuit Court Access website.
Delaney says quite a few people are denied compensation because they can’t prove their innocence to the Claims Board. Findley says most of the Wisconsin Innocence Project’s clients have not received compensation, either because they were denied or never pursued benefits. The group has lobbied the state Legislature to expand the benefits and make them easier to obtain.
Still, some people wrongly incarcerated in Wisconsin prisons have received the full compensation allowed. One Oak Creek man, Chaunte Ott, released in 2009 after 12 years in prison when DNA evidence cleared him of a rape and murder conviction, received the full $25,000 in an April Claims Board meeting.
Robert Lee Stinson of Milwaukee, also released last year after DNA evidence cleared him of murder charges, spent 23 years in prison. He’s still in the process of seeking compensation.
Texas offers some of the most generous benefits, up to $80,000 a year for life, even though the state is known for its tough criminal justice system and use of the death penalty. People wrongfully imprisoned in the federal system can receive up to $50,000 a year for each year of incarceration or up to $100,000 a year if they spent time on death row.
States have created compensation programs because lawsuits against states for wrongful imprisonment are notoriously difficult. Federal civil rights lawsuits require the former convict to prove the state intentionally incarcerated him or her without due cause.
By Matt Hrodey
The wrongful imprisonment of Green Bay’s Cody Vandenberg for 15 years on a recently overturned conviction of robbery and attempted homicide was one of the worst such cases in state history. Even if prosecutors decide against retrying or appealing the case, however, Vandenberg is unlikely to collect much in reparations, because Wisconsin’s compensation program for exonerated convicts is badly underfunded.
A shrinking minority of states, 23, offers no compensation program at all for people wrongfully imprisoned. In Wisconsin, after proving their innocence before the Wisconsin Claims Board, a panel of state officials representing the Governor, state Legislature, Department of Administration and Department of Justice, exonerated convicts can receive up to $5,000 a year. Total compensation is capped at $25,000.
“It’s miserable. It’s the lowest compensation amount of any state in the nation and the second-lowest cap in the country,” says Keith Findley, a UW-Madison law professor and co-founder of the Wisconsin Innocence Project, a program at the university providing legal aid to people who may have been wrongfully convicted.
Findley is part of Vandenberg’s defense team. Facing a total of 80 years in prison, the now 45-year-old man was released on Tuesday after a court of appeals decision reversed his conviction in Brown County Circuit Court and concluded “he is entitled to a new trial in the interest of justice.” Vandenberg had been convicted of the 1996 robbery and stabbing of a Bellevue man. But Vandenberg’s alleged getaway driver, Larry Pearson, has since confessed to the crime – most recently under oath in Brown County Circuit Court in a hearing for post-conviction relief requested by the defense.
Pearson and Vandenberg were coworkers at a local repair shop. During Vandenberg’s trial in 1996, Pearson testified as part of his own plea deal but didn’t implicate Vandenberg. Pearson instead claimed the stabbing wounds were inflicted by a third man, a stranger he had met at a bar.
At the trial, the prosecution argued Pearson was trying to cover for his friend Vandenberg by making up the story about “the stranger” and called to the stand a man who had spent time in jail with Pearson. The fellow inmate said Pearson told varying accounts of what happened on the night in question, including one version where Vandenberg was the stabber. But the key piece of evidence, according to the appeals court, was the stabbing victim’s identification of Vandenberg. He and Vandenberg looked similar – but Vandenberg had a beard at the time.
To the jury, it sounded like convincing evidence. But a series of wrongful convictions have led judges across the country to treat identifications of defendants with skepticism. “Eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and is responsible for more wrongful convictions than all other causes combined,” the Wisconsin Supreme Court noted in 2005.
The appeals court wrote that the victim’s identification of Vandenberg was the key to the prosecution’s case, a key that looked a little rusty in light of new evidence provided by the defense that the victim was intoxicated during the attack with a blood alcohol content of .22. Prosecutors lacked “any physical evidence tying Vandenberg to the scene,” the opinion says. Yet Pearson’s bloody shoe-print was found inside the trailer.
Pearson, it turns out, actually confessed to his defense attorney at the time he was guilty of the stabbing – but the lawyer, because of attorney-client privilege, was unable to reveal the confession.
Vandenberg’s first appeal failed. Filed after his trial, it was based not on Pearson’s confession, unknown to him at the time, but on his contention that his defense attorney didn’t present evidence establishing an alibi for him.
Released from custody on Tuesday, Vandenberg will remain under house arrest until he returns to court on Sept. 28 to learn if prosecutors will retry his case in light of Pearson’s confession or challenge the appeals court decision before the Supreme Court.
Making a claim of innocence
If they decide to do neither, Vandenberg can petition the Claims Board for compensation, but in doing so he faces a months-long process whereby he must prove his innocence with “clear and convincing” evidence. “For many truly innocent people, that’s a burden that’s difficult to meet. How do you prove a negative?” says Findley.
Wisconsin law also requires exonerated convicts to prove they didn’t contribute to their conviction in some way through a false confession or some other means. This violates the national Innocence Project’s guidelines for state compensation programs. “This denies justice to those who were coerced, explicitly or implicitly, into confessing or pleading guilty to crimes it was proven they did not commit,” the guidelines say.
Some states provide immediate assistance to exonerated prisoners for housing, psychological counseling, medical aid, job training or other needs, none of which are provided by Wisconsin. “They have nothing as they walk out of prison,” says Mary Delaney, a Madison attorney and member of the Wisconsin Exoneree Network.
Wrongful imprisonment, she says, “is extraordinarily traumatic. A lot of people become agoraphobic and don’t feel like they can rejoin the community.” Long gaps in their employment history are difficult to explain to prospective employers – who may have also seen the charges filed against them on the Wisconsin Circuit Court Access website.
Delaney says quite a few people are denied compensation because they can’t prove their innocence to the Claims Board. Findley says most of the Wisconsin Innocence Project’s clients have not received compensation, either because they were denied or never pursued benefits. The group has lobbied the state Legislature to expand the benefits and make them easier to obtain.
Still, some people wrongly incarcerated in Wisconsin prisons have received the full compensation allowed. One Oak Creek man, Chaunte Ott, released in 2009 after 12 years in prison when DNA evidence cleared him of a rape and murder conviction, received the full $25,000 in an April Claims Board meeting.
Robert Lee Stinson of Milwaukee, also released last year after DNA evidence cleared him of murder charges, spent 23 years in prison. He’s still in the process of seeking compensation.
Texas offers some of the most generous benefits, up to $80,000 a year for life, even though the state is known for its tough criminal justice system and use of the death penalty. People wrongfully imprisoned in the federal system can receive up to $50,000 a year for each year of incarceration or up to $100,000 a year if they spent time on death row.
States have created compensation programs because lawsuits against states for wrongful imprisonment are notoriously difficult. Federal civil rights lawsuits require the former convict to prove the state intentionally incarcerated him or her without due cause.
Sunday, August 29, 2010
Close Enough Isn't Good Enough
The following opinion was published by the Huffington Post on August 27, 2010.
Close Enough Isn't Good Enough
by Andrea Lyon
Author, Attorney, Professor of Law: DePaul University
August 27, 2010
Yesterday Judge William T. Moore Jr. of the Federal District Court in Georgia denied Troy Davis relief from his death sentence. This is the case that gained international as well as national attention, as the execution of a man who may very well be innocent loomed. In fact, the United States Supreme Court gave him a rare chance to clear his name when a year ago, the Supreme Court directly granted Mr. Davis a federal hearing to put his claim to the test -- a chance afforded no other American in at least 50 years. Mr. Davis had tried for many years just to get a hearing to present new evidence would that he said would clear his name in the 1989 killing of Mark MacPhail, an off-duty Savannah police officer. The Judge concluded after a lengthy 112 page opinion that "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors."
What is interesting about the opinion is that the judge assumes that it would be unconstitutional to execute someone who is innocent, although the United States Supreme Court has not ever quite said so. There is then a long involved and technical discussion of which of three standards should apply in making such a determination, lengthy recitations of various witness's statements, recantations, and his conclusion that Mr. Davis has not met the standard to show his innocence. True, there are recantations from most of the witnesses against him, but the law "disfavors" consideration of recantations, he opines, and besides the pressures put on these witnesses either from internal bias or pressure from the police, don't matter. What is missing from the opinion is a discussion of the fact that nearly everyone recanted, that there is no physical evidence linking Mr. Davis to the crime, or any real consideration as to whether Mr. Davis, Mr. MacPhail's family or the jury were deprived of something important -- a fair trial where all the facts were before them, rather than hidden. In other words, the cumulative effects of all of this error are brushed aside, and the technical rules triumph.
The case against Mr. Davis rested on the testimony most likely to result in a wrongful conviction -- that of eyewitnesses. In fact eyewitness misidentification accounts for 75 percent of wrongful convictions in over 200 DNA exonerations.
I have written before about the triumph of technicalities which may very well imprison, or even execute the innocent or someone whose mail got lost. ("Justice Trapped in a Technical Web", and "A Technical Death"). I recognize that I was not in the courtroom and did not hear the testimony presented to the judge -- but others were, and their impressions are very different. Here is what we should all be worried about -- sure, there is a place for finality in our system. A convicted person should not get to go back to court an infinite number of times. But if technical rules prevent him from presenting relevant, reliable evidence when he discovers it -- for example if a witness gets an attack of conscience about a lie (in this case a deadly lie) as did Kevin McQueen, one of the seven witnesses who recanted his testimony, testifying that he implicated Mr., Davis originally at his trial because he was mad at him, shouldn't there be a way to present that and have it fairly considered in the context of the totality of the evidence before we execute a man? McQueen testified that his earlier testimony that Mr. Davis said he shot someone was a lie. "The man did not tell me he shot anyone. Period." When asked what he hoped to gain by his testimony, he said, "peace of mind."
None of us should feel that same peace of mind about an execution under these circumstances, whatever our feelings might be about the death penalty. An execution is irrevocable, and close enough isn't good enough.
Close Enough Isn't Good Enough
by Andrea Lyon
Author, Attorney, Professor of Law: DePaul University
August 27, 2010
Yesterday Judge William T. Moore Jr. of the Federal District Court in Georgia denied Troy Davis relief from his death sentence. This is the case that gained international as well as national attention, as the execution of a man who may very well be innocent loomed. In fact, the United States Supreme Court gave him a rare chance to clear his name when a year ago, the Supreme Court directly granted Mr. Davis a federal hearing to put his claim to the test -- a chance afforded no other American in at least 50 years. Mr. Davis had tried for many years just to get a hearing to present new evidence would that he said would clear his name in the 1989 killing of Mark MacPhail, an off-duty Savannah police officer. The Judge concluded after a lengthy 112 page opinion that "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors."
What is interesting about the opinion is that the judge assumes that it would be unconstitutional to execute someone who is innocent, although the United States Supreme Court has not ever quite said so. There is then a long involved and technical discussion of which of three standards should apply in making such a determination, lengthy recitations of various witness's statements, recantations, and his conclusion that Mr. Davis has not met the standard to show his innocence. True, there are recantations from most of the witnesses against him, but the law "disfavors" consideration of recantations, he opines, and besides the pressures put on these witnesses either from internal bias or pressure from the police, don't matter. What is missing from the opinion is a discussion of the fact that nearly everyone recanted, that there is no physical evidence linking Mr. Davis to the crime, or any real consideration as to whether Mr. Davis, Mr. MacPhail's family or the jury were deprived of something important -- a fair trial where all the facts were before them, rather than hidden. In other words, the cumulative effects of all of this error are brushed aside, and the technical rules triumph.
The case against Mr. Davis rested on the testimony most likely to result in a wrongful conviction -- that of eyewitnesses. In fact eyewitness misidentification accounts for 75 percent of wrongful convictions in over 200 DNA exonerations.
I have written before about the triumph of technicalities which may very well imprison, or even execute the innocent or someone whose mail got lost. ("Justice Trapped in a Technical Web", and "A Technical Death"). I recognize that I was not in the courtroom and did not hear the testimony presented to the judge -- but others were, and their impressions are very different. Here is what we should all be worried about -- sure, there is a place for finality in our system. A convicted person should not get to go back to court an infinite number of times. But if technical rules prevent him from presenting relevant, reliable evidence when he discovers it -- for example if a witness gets an attack of conscience about a lie (in this case a deadly lie) as did Kevin McQueen, one of the seven witnesses who recanted his testimony, testifying that he implicated Mr., Davis originally at his trial because he was mad at him, shouldn't there be a way to present that and have it fairly considered in the context of the totality of the evidence before we execute a man? McQueen testified that his earlier testimony that Mr. Davis said he shot someone was a lie. "The man did not tell me he shot anyone. Period." When asked what he hoped to gain by his testimony, he said, "peace of mind."
None of us should feel that same peace of mind about an execution under these circumstances, whatever our feelings might be about the death penalty. An execution is irrevocable, and close enough isn't good enough.
Tuesday, August 17, 2010
Additional Problems with Middle District of Florida U.S. Attorney Nomination
Additional Problems with Middle District of Florida U.S. Attorney Nomination
by James Scanlan
In Truth in Justice editorials of June 23, 2010, and July 11, 2010, I discussed the pending nomination of Robert E. O’Neill for U.S. Attorney for the Middle District of Florida. O’Neill is the prosecutor with the penchant for calling people liars who himself made a false statement in an application for the U.S. Attorney position submitted to the Florida Federal Judicial Nominating Commission. O’Neill stated that a District of Columbia Bar Counsel investigation of his conduct in United States v. Deborah Gore Dean had been initiated by a complaint filed by the defendant when in fact Bar Counsel itself initiated the investigation after reading a court of appeals opinion “deplor[ing]” the conduct of lead counsel O’Neill and his colleagues. I pointed out that if O’Neill made the same misrepresentation before a federal entity, he likely violated 18 U.S.C. § 1001. Irrespective of any violation of law, however, one would expect that making a false statement on an application for a high law enforcement position would disqualify a person from further consideration for the position. But, though for more than a month the Department of Justice and White House have been in possession of a document conclusively establishing that O’Neill’s statement was false, the nomination remains pending.
In the latter part of the July 11, 2010 editorial I discussed remarks O’Neill made in the Nominating Commission application criticizing a former subordinate. The subject of the remarks is former Assistant United States Attorney (AUSA) Jeffrey J. Del Fuoco, who has sued O’Neill on a number of matters, including defamation for statements O’Neill made about Del Fuoco in the Nominating Commission application. Del Fuoco has joined Attorney General Eric H. Holder, Jr. as a defendant as to certain issues. The suit is still in court, though a motion to dismiss is pending. I am not in a position to comment on the likely merits of any of the claims raised by Del Fuoco. But the complaint raises an additional issue concerning O’Neill’s credibility, and the government’s response to it raises an additional consideration regarding the likelihood that O’Neill violated 18 U.S.C. § 1001.
O’Neill’s Alleged Perjury in an Earlier Case. In addition to a claim regarding statements on the Nominating Commission application, Del Fuoco alleges that O’Neill defamed him in a 2005 deposition in an earlier case. In connection with that claim, at pages 6-9 of the complaint (¶¶ 20-22), Del Fuoco alleges that in the federal workplace O’Neill threatened bodily injury to Del Fuoco by means of statements made in the U.S. Attorney’s office to three AUSA’s (each of whom Del Fuoco identifies by name). The complaint also sets out deposition testimony from the earlier case where, while acknowledging that he may have made statements along the lines of those described by Del Fuoco, O’Neill denied that he made such statements in the workplace. Del Fuoco maintains that such denial constituted perjury by O’Neill.
I have no direct knowledge of the underlying facts. But Del Fuoco’s identifying of the three AUSAs would seem to suggest that O’Neill in fact made the statements in the workplace. And I am led to understand that, if asked, the AUSAs would so state. Department of Justice officials must know of the allegations since Department attorneys are representing O’Neill in the case. But neither in the vetting process for the U.S. Attorney nomination nor at any other time has a Department representative asked the AUSAs whether Del Fuoco’s allegations concerning O’Neill’s perjury in the earlier case are true. I am further led to understand that there is some concern within the Middle District U.S. Attorney’s office that the head of the office may soon be a person whom at least several people in the office know to have committed perjury and that, if Del Fuoco’s case goes forward, some of those people may be deposed on the matter. Having AUSAs in a position where their testimony could show the U.S. Attorney to have committed perjury will not be a comfortable situation for the AUSAs or the office, or, one would think, for the Department of Justice. As with varied matters I have raised with the Department about O’Neill’s conduct in the Dean case, if the Department had been willing to pose a few simple questions, it would not now be confronted with a problematic nomination or the prospect of a problematic tenure.
The Department of Justice’s Claims Regarding the Status of the Florida Federal Judicial Nominating Commission. In discussing the possibility that O’Neill violated 18 U.S.C. § 1001 by falsely stating that the defendant initiated the District of Columbia Bar Counsel investigation, I have mainly addressed the likelihood that O’Neill also made to a federal entity the statement that he made on the Florida Federal Judicial Nominating Commission application. But in some places I have suggested that O’Neill may have violated the statute even by making the false statement to the Nominating Commission because the statement could be regarded as involving a matter within the jurisdiction of the Department of Justice or the Office of Independent Counsel. When making such point regarding the statement to the Nominating Commission – which I have variously described as an “unofficial body,” “an arm of the Florida Bar,” or “a body created by Florida Senators” – I was uncertain as to the precise status of the body or the implications of that status, save that I did not regard the Nominating Commission to be federal entity.
I also did not know that in an April 26, 2010 Motion to Dismiss the Del Fuoco complaint (at 6), Department of Justice attorneys representing both O’Neill and the Department, in seeking to claim absolute privilege for O’Neill’s statements about Del Fuoco in the Nominating Commission application, have stated that the Nominating Commission is “a quasi-legislative body, established by members of the U.S. Senate.” Though the motion does not make the point because it is not germane to the argument, it is clear enough that the motion means “a quasi-federal legislative body.” Thus, there may exist another argument as why O’Neill violated 18 U.S.C. § 1001 by falsely describing the origin of the Bar Counsel investigation in his Nominating Commission application.
Additional developments regarding the O’Neill nomination/confirmation are addressed in Addendum 7 to a Robert E. O’ Neill profile on jpscanlan.com
by James Scanlan
In Truth in Justice editorials of June 23, 2010, and July 11, 2010, I discussed the pending nomination of Robert E. O’Neill for U.S. Attorney for the Middle District of Florida. O’Neill is the prosecutor with the penchant for calling people liars who himself made a false statement in an application for the U.S. Attorney position submitted to the Florida Federal Judicial Nominating Commission. O’Neill stated that a District of Columbia Bar Counsel investigation of his conduct in United States v. Deborah Gore Dean had been initiated by a complaint filed by the defendant when in fact Bar Counsel itself initiated the investigation after reading a court of appeals opinion “deplor[ing]” the conduct of lead counsel O’Neill and his colleagues. I pointed out that if O’Neill made the same misrepresentation before a federal entity, he likely violated 18 U.S.C. § 1001. Irrespective of any violation of law, however, one would expect that making a false statement on an application for a high law enforcement position would disqualify a person from further consideration for the position. But, though for more than a month the Department of Justice and White House have been in possession of a document conclusively establishing that O’Neill’s statement was false, the nomination remains pending.
In the latter part of the July 11, 2010 editorial I discussed remarks O’Neill made in the Nominating Commission application criticizing a former subordinate. The subject of the remarks is former Assistant United States Attorney (AUSA) Jeffrey J. Del Fuoco, who has sued O’Neill on a number of matters, including defamation for statements O’Neill made about Del Fuoco in the Nominating Commission application. Del Fuoco has joined Attorney General Eric H. Holder, Jr. as a defendant as to certain issues. The suit is still in court, though a motion to dismiss is pending. I am not in a position to comment on the likely merits of any of the claims raised by Del Fuoco. But the complaint raises an additional issue concerning O’Neill’s credibility, and the government’s response to it raises an additional consideration regarding the likelihood that O’Neill violated 18 U.S.C. § 1001.
O’Neill’s Alleged Perjury in an Earlier Case. In addition to a claim regarding statements on the Nominating Commission application, Del Fuoco alleges that O’Neill defamed him in a 2005 deposition in an earlier case. In connection with that claim, at pages 6-9 of the complaint (¶¶ 20-22), Del Fuoco alleges that in the federal workplace O’Neill threatened bodily injury to Del Fuoco by means of statements made in the U.S. Attorney’s office to three AUSA’s (each of whom Del Fuoco identifies by name). The complaint also sets out deposition testimony from the earlier case where, while acknowledging that he may have made statements along the lines of those described by Del Fuoco, O’Neill denied that he made such statements in the workplace. Del Fuoco maintains that such denial constituted perjury by O’Neill.
I have no direct knowledge of the underlying facts. But Del Fuoco’s identifying of the three AUSAs would seem to suggest that O’Neill in fact made the statements in the workplace. And I am led to understand that, if asked, the AUSAs would so state. Department of Justice officials must know of the allegations since Department attorneys are representing O’Neill in the case. But neither in the vetting process for the U.S. Attorney nomination nor at any other time has a Department representative asked the AUSAs whether Del Fuoco’s allegations concerning O’Neill’s perjury in the earlier case are true. I am further led to understand that there is some concern within the Middle District U.S. Attorney’s office that the head of the office may soon be a person whom at least several people in the office know to have committed perjury and that, if Del Fuoco’s case goes forward, some of those people may be deposed on the matter. Having AUSAs in a position where their testimony could show the U.S. Attorney to have committed perjury will not be a comfortable situation for the AUSAs or the office, or, one would think, for the Department of Justice. As with varied matters I have raised with the Department about O’Neill’s conduct in the Dean case, if the Department had been willing to pose a few simple questions, it would not now be confronted with a problematic nomination or the prospect of a problematic tenure.
The Department of Justice’s Claims Regarding the Status of the Florida Federal Judicial Nominating Commission. In discussing the possibility that O’Neill violated 18 U.S.C. § 1001 by falsely stating that the defendant initiated the District of Columbia Bar Counsel investigation, I have mainly addressed the likelihood that O’Neill also made to a federal entity the statement that he made on the Florida Federal Judicial Nominating Commission application. But in some places I have suggested that O’Neill may have violated the statute even by making the false statement to the Nominating Commission because the statement could be regarded as involving a matter within the jurisdiction of the Department of Justice or the Office of Independent Counsel. When making such point regarding the statement to the Nominating Commission – which I have variously described as an “unofficial body,” “an arm of the Florida Bar,” or “a body created by Florida Senators” – I was uncertain as to the precise status of the body or the implications of that status, save that I did not regard the Nominating Commission to be federal entity.
I also did not know that in an April 26, 2010 Motion to Dismiss the Del Fuoco complaint (at 6), Department of Justice attorneys representing both O’Neill and the Department, in seeking to claim absolute privilege for O’Neill’s statements about Del Fuoco in the Nominating Commission application, have stated that the Nominating Commission is “a quasi-legislative body, established by members of the U.S. Senate.” Though the motion does not make the point because it is not germane to the argument, it is clear enough that the motion means “a quasi-federal legislative body.” Thus, there may exist another argument as why O’Neill violated 18 U.S.C. § 1001 by falsely describing the origin of the Bar Counsel investigation in his Nominating Commission application.
Additional developments regarding the O’Neill nomination/confirmation are addressed in Addendum 7 to a Robert E. O’ Neill profile on jpscanlan.com
Friday, August 13, 2010
Bringing Down a Giant
The following opinion, by Father Raymond J. deSouza, was published in The National Post (Canada) on August 12, 2010.
The worst moment of the late Ted Stevens' long political career was the most important.
Senator Stevens died in a plane crash on Monday, having spent forty years in the United States Senate. He devoted himself to bringing home the bacon to Alaska, and by all accounts his pork-barrelling was prodigiously successful. Americans regarded the geriatric senator -- decades in office, gaming the system for ever more extravagant dollops of federal largesse, then proudly cutting the ribbons on projects named in his honour -- as something of a noble figure. They resolutely re-elect such men for tenures that make most crowned heads seem transient.
So entrenched was Stevens that when he was defeated in the 2008 election it was regarded as a career prematurely cut short. Those who marinated in the Senate even longer than he did -- Ted Kennedy and Robert Byrd -- were at least allowed the monarch's privilege of dying in office. But Stevens was defeated by the slimmest of margins in 2008, having been convicted in a criminal trial just days before the election.
Stevens was convicted of something relatively minor but still criminal: making false statements on his Senate financial disclosure forms in relation to renovations on his Alaska home. The federal prosecutors -- from the justice department's public integrity section--claimed that Stevens knowingly underpaid for the renovations, rendering them an illegal gift or perhaps a bribe. Stevens was convicted on all counts and lost the 2008 election a week later by a margin of less than 1.5%. A forty year career apparently had ended in disgrace.
Then in February 2009 an FBI whistle-blower revealed that prosecutors had conspired to withhold exculpatory evidence from the defence and had falsified records. In particular, the prosecutors withheld testimony that the cost of the renovations was actually less than Stevens had paid. They also knew that the star witness was likely lying at trial when he said that a friend of Stevens had told him to ignore the senator's request for an invoice.
It was a monstrous miscarriage of justice. Prosecutors at the highest levels of the justice department had deliberately conspired to convict a man who should never have been charged. It was a wrongful conviction, done with malice aforethought. Absent the whistle-blower, the prosecutors would have gotten away with it. Once it was revealed, the attorney general, Eric Holder, withdrew the charges, vacating the conviction. The presiding judge, Emmett Sullivan, called it the worst case of prosecutorial misconduct he had seen in 25 years on the bench and initiated a criminal contempt investigation of the responsible prosecutors.
Ted Stevens was one of most influential senators in Washington. He could not have been prosecuted without the approval of the most senior and experienced lawyers in the justice department. If America's prosecutorial state could grind him up, then no one before American courts is safe from wrongful and malicious prosecution. Throwing innocent people in jail is not an anomaly in the American criminal justice system, but routine practice. Thanks to the whistle-blower we know what was done to Stevens. Imagine what is done daily to the human debris swept off America's streets.
Prosecutors were no doubt eager to take down the giant of Alaska politics. Such a grand prize required more than the usual abuse of state power by the prosecutors, and Ted Stevens would have died this week a convicted felon, absent one FBI agent who was sufficiently disgusted to blow the whistle on his law enforcement colleagues. Stevens' greatest legacy ought not be his artful manipulation of the appropriations system, but rather how his case exposed the top-to-bottom corruption of American criminal justice -- a scandal that ought to shake the rotten system to its foundations.
When Stevens was convicted in 2008, both presidential candidates called for him to resign, as did many of his longtime Senate colleagues. To their shame, they believed the American criminal justice system to be credible. If it wasn't evident before, the Stevens case has made clear that no one should ever be considered guilty solely because of a verdict in an American court. The abuse of prosecutorial and police power is so rampant that a guilty verdict means nothing in itself. No doubt guilty people are indeed convicted, but a person should not be considered guilty solely by reason of his conviction.
In Canada, we should not be smug. We have our own parade of wrongful convictions. Just this week the Ontario government announced niggardly compensation for parents who were wrongfully convicted of molesting and killing their own children. Here the overzealous prosecutors employed the false testimony of an incompetent pathologist. America's shameful justice system should be a warning to us--it can happen here too.
The worst moment of the late Ted Stevens' long political career was the most important.
Senator Stevens died in a plane crash on Monday, having spent forty years in the United States Senate. He devoted himself to bringing home the bacon to Alaska, and by all accounts his pork-barrelling was prodigiously successful. Americans regarded the geriatric senator -- decades in office, gaming the system for ever more extravagant dollops of federal largesse, then proudly cutting the ribbons on projects named in his honour -- as something of a noble figure. They resolutely re-elect such men for tenures that make most crowned heads seem transient.
So entrenched was Stevens that when he was defeated in the 2008 election it was regarded as a career prematurely cut short. Those who marinated in the Senate even longer than he did -- Ted Kennedy and Robert Byrd -- were at least allowed the monarch's privilege of dying in office. But Stevens was defeated by the slimmest of margins in 2008, having been convicted in a criminal trial just days before the election.
Stevens was convicted of something relatively minor but still criminal: making false statements on his Senate financial disclosure forms in relation to renovations on his Alaska home. The federal prosecutors -- from the justice department's public integrity section--claimed that Stevens knowingly underpaid for the renovations, rendering them an illegal gift or perhaps a bribe. Stevens was convicted on all counts and lost the 2008 election a week later by a margin of less than 1.5%. A forty year career apparently had ended in disgrace.
Then in February 2009 an FBI whistle-blower revealed that prosecutors had conspired to withhold exculpatory evidence from the defence and had falsified records. In particular, the prosecutors withheld testimony that the cost of the renovations was actually less than Stevens had paid. They also knew that the star witness was likely lying at trial when he said that a friend of Stevens had told him to ignore the senator's request for an invoice.
It was a monstrous miscarriage of justice. Prosecutors at the highest levels of the justice department had deliberately conspired to convict a man who should never have been charged. It was a wrongful conviction, done with malice aforethought. Absent the whistle-blower, the prosecutors would have gotten away with it. Once it was revealed, the attorney general, Eric Holder, withdrew the charges, vacating the conviction. The presiding judge, Emmett Sullivan, called it the worst case of prosecutorial misconduct he had seen in 25 years on the bench and initiated a criminal contempt investigation of the responsible prosecutors.
Ted Stevens was one of most influential senators in Washington. He could not have been prosecuted without the approval of the most senior and experienced lawyers in the justice department. If America's prosecutorial state could grind him up, then no one before American courts is safe from wrongful and malicious prosecution. Throwing innocent people in jail is not an anomaly in the American criminal justice system, but routine practice. Thanks to the whistle-blower we know what was done to Stevens. Imagine what is done daily to the human debris swept off America's streets.
Prosecutors were no doubt eager to take down the giant of Alaska politics. Such a grand prize required more than the usual abuse of state power by the prosecutors, and Ted Stevens would have died this week a convicted felon, absent one FBI agent who was sufficiently disgusted to blow the whistle on his law enforcement colleagues. Stevens' greatest legacy ought not be his artful manipulation of the appropriations system, but rather how his case exposed the top-to-bottom corruption of American criminal justice -- a scandal that ought to shake the rotten system to its foundations.
When Stevens was convicted in 2008, both presidential candidates called for him to resign, as did many of his longtime Senate colleagues. To their shame, they believed the American criminal justice system to be credible. If it wasn't evident before, the Stevens case has made clear that no one should ever be considered guilty solely because of a verdict in an American court. The abuse of prosecutorial and police power is so rampant that a guilty verdict means nothing in itself. No doubt guilty people are indeed convicted, but a person should not be considered guilty solely by reason of his conviction.
In Canada, we should not be smug. We have our own parade of wrongful convictions. Just this week the Ontario government announced niggardly compensation for parents who were wrongfully convicted of molesting and killing their own children. Here the overzealous prosecutors employed the false testimony of an incompetent pathologist. America's shameful justice system should be a warning to us--it can happen here too.
Sunday, August 08, 2010
They didn't do the crime, but they did the time. How to better prevent wrongful convictions
The following op-ed article by Keith Findley was published in the Milwaukee Journal-Sentinel on August 7, 2010.
Robert Lee Stinson spent more than half his life in prison for another man's crime.
He was a young man, barely 20, in 1985 when he was sent to prison for life for a Milwaukee rape and murder. Twenty-three years later, when he was in mid-life at 44, he was exonerated and freed. New scientific evidence, including DNA, excluded him and identified another man as the perpetrator.
Stinson's wrongful conviction is not unique. Nationwide, at least 255 people have been exonerated by DNA in the past two decades, including at least a half-dozen in Wisconsin. In Milwaukee alone, three men have been exonerated by DNA in murder cases in the past 18 months, including Chaunte Ott and William Avery, as well as Stinson. In Ott's and Avery's cases, DNA testing not only established their innocence but also matched Milwaukee's infamous alleged serial killer, Walter Ellis.
Commendably, Milwaukee County District Attorney John Chisholm has responded by initiating a project to review all Milwaukee homicides since 1992 and obtain testing in those cases in which the DNA can demonstrate innocence or confirm guilt.
The DNA exonerations not only have corrected injustices on a scale previously unimagined, they also have provided an unprecedented opportunity to learn about the causes of and remedies for error in criminal cases. These cases reveal not isolated mistakes, but systemic flaws. They reveal that wrongful convictions have identifiable causes, causes that can be addressed. Because so much is at stake, they must be addressed.
The cases teach that the leading causes of wrongful convictions include eyewitness identification error, police interrogation tactics that produce false confessions, flawed forensic science evidence, false jailhouse snitch testimony, prosecutorial misconduct and inadequate defense counsel.
In response, Wisconsin has adopted significant reforms to minimize eyewitness error (by reforming the methods used by police to obtain identifications) and false confessions (by requiring electronic recording of custodial interrogations). Much more can still be done in these areas. At the same time, Wisconsin also must address other causes of wrongful convictions.
Stinson's case, for example, highlights one of the most significant of these causes: flawed forensic science. Stinson was put away based almost entirely on expert testimony purporting to match bite marks on the victim's body to Stinson's teeth. Subsequent scientific analysis proved that conclusion flat wrong. In fact, Stinson could not have been the source of the bite marks. DNA from saliva on the victim's shirt matched another man, who confessed when confronted with the evidence.
More fundamentally, Stinson's case illustrates an alarming point the DNA exonerations now have confirmed: Most of the forensic sciences we routinely rely on lack solid scientific foundations.
In 2009, the National Academy of Sciences - the nation's pre-eminent scientific authority - issued a congressionally mandated report. It concluded that, with the exception of DNA, no forensic science - including everything from bite marks to ballistics and even fingerprints - has a solid scientific foundation.
Moreover, with the exception of DNA analysis, no forensic method has been rigorously shown to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. These disciplines still have important roles to play, but all need substantial research to validate basic premises and techniques, assess limitations and discern the sources and magnitude of error.
The cornerstone of the NAS' recommendations call for Congress to create a national oversight body charged with improving and regulating forensic sciences. Congress should act promptly to enact that legislation.
Meanwhile, there is much that also can and should be done at the state level. A comprehensive program is needed to increase the incentives for research and training in forensic sciences; establish uniform protocols and standards for analyzing and reporting on scientific evidence; and make crime laboratory work more objective, transparent and accessible to both sides in criminal cases.
Reform is also needed to address other recurrent causes of wrongful convictions. Attention must be paid, for example, to the misuse of jailhouse informants - inmates or co-defendants who snitch on each other, often untruthfully, in hopes of obtaining leniency in their own cases.
Exoneree Chaunte Ott, for example, was convicted of murder based primarily on the testimony of two co-defendants, who received deals for their testimony (testimony they later recanted when DNA cleared Ott).
Serious attention also must be paid to inadequate funding for prosecutors and defense attorneys. Despite the established risks caused by stretching prosecutors and defense attorneys too thinly, the state repeatedly has failed to increase funding. The hourly rate for appointed defense attorneys is lower today than it was more than 30 years ago. Wisconsin's system is so severely under-resourced that it is close to a crisis point.
We must not squander the opportunity for learning and reform provided by the DNA exonerations. DNA evidence does not alone solve all problems, because DNA is available in only a small percentage of cases.
Wisconsin must urgently renew its commitment to best practices in the criminal justice system to ensure both that the innocent are protected and that the guilty are not left free to threaten public safety.
Keith Findley is a clinical professor at the University of Wisconsin Law School, co-director of the Wisconsin Innocence Project and president of the Innocence Network.
Robert Lee Stinson spent more than half his life in prison for another man's crime.
He was a young man, barely 20, in 1985 when he was sent to prison for life for a Milwaukee rape and murder. Twenty-three years later, when he was in mid-life at 44, he was exonerated and freed. New scientific evidence, including DNA, excluded him and identified another man as the perpetrator.
Stinson's wrongful conviction is not unique. Nationwide, at least 255 people have been exonerated by DNA in the past two decades, including at least a half-dozen in Wisconsin. In Milwaukee alone, three men have been exonerated by DNA in murder cases in the past 18 months, including Chaunte Ott and William Avery, as well as Stinson. In Ott's and Avery's cases, DNA testing not only established their innocence but also matched Milwaukee's infamous alleged serial killer, Walter Ellis.
Commendably, Milwaukee County District Attorney John Chisholm has responded by initiating a project to review all Milwaukee homicides since 1992 and obtain testing in those cases in which the DNA can demonstrate innocence or confirm guilt.
The DNA exonerations not only have corrected injustices on a scale previously unimagined, they also have provided an unprecedented opportunity to learn about the causes of and remedies for error in criminal cases. These cases reveal not isolated mistakes, but systemic flaws. They reveal that wrongful convictions have identifiable causes, causes that can be addressed. Because so much is at stake, they must be addressed.
The cases teach that the leading causes of wrongful convictions include eyewitness identification error, police interrogation tactics that produce false confessions, flawed forensic science evidence, false jailhouse snitch testimony, prosecutorial misconduct and inadequate defense counsel.
In response, Wisconsin has adopted significant reforms to minimize eyewitness error (by reforming the methods used by police to obtain identifications) and false confessions (by requiring electronic recording of custodial interrogations). Much more can still be done in these areas. At the same time, Wisconsin also must address other causes of wrongful convictions.
Stinson's case, for example, highlights one of the most significant of these causes: flawed forensic science. Stinson was put away based almost entirely on expert testimony purporting to match bite marks on the victim's body to Stinson's teeth. Subsequent scientific analysis proved that conclusion flat wrong. In fact, Stinson could not have been the source of the bite marks. DNA from saliva on the victim's shirt matched another man, who confessed when confronted with the evidence.
More fundamentally, Stinson's case illustrates an alarming point the DNA exonerations now have confirmed: Most of the forensic sciences we routinely rely on lack solid scientific foundations.
In 2009, the National Academy of Sciences - the nation's pre-eminent scientific authority - issued a congressionally mandated report. It concluded that, with the exception of DNA, no forensic science - including everything from bite marks to ballistics and even fingerprints - has a solid scientific foundation.
Moreover, with the exception of DNA analysis, no forensic method has been rigorously shown to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. These disciplines still have important roles to play, but all need substantial research to validate basic premises and techniques, assess limitations and discern the sources and magnitude of error.
The cornerstone of the NAS' recommendations call for Congress to create a national oversight body charged with improving and regulating forensic sciences. Congress should act promptly to enact that legislation.
Meanwhile, there is much that also can and should be done at the state level. A comprehensive program is needed to increase the incentives for research and training in forensic sciences; establish uniform protocols and standards for analyzing and reporting on scientific evidence; and make crime laboratory work more objective, transparent and accessible to both sides in criminal cases.
Reform is also needed to address other recurrent causes of wrongful convictions. Attention must be paid, for example, to the misuse of jailhouse informants - inmates or co-defendants who snitch on each other, often untruthfully, in hopes of obtaining leniency in their own cases.
Exoneree Chaunte Ott, for example, was convicted of murder based primarily on the testimony of two co-defendants, who received deals for their testimony (testimony they later recanted when DNA cleared Ott).
Serious attention also must be paid to inadequate funding for prosecutors and defense attorneys. Despite the established risks caused by stretching prosecutors and defense attorneys too thinly, the state repeatedly has failed to increase funding. The hourly rate for appointed defense attorneys is lower today than it was more than 30 years ago. Wisconsin's system is so severely under-resourced that it is close to a crisis point.
We must not squander the opportunity for learning and reform provided by the DNA exonerations. DNA evidence does not alone solve all problems, because DNA is available in only a small percentage of cases.
Wisconsin must urgently renew its commitment to best practices in the criminal justice system to ensure both that the innocent are protected and that the guilty are not left free to threaten public safety.
Keith Findley is a clinical professor at the University of Wisconsin Law School, co-director of the Wisconsin Innocence Project and president of the Innocence Network.
Wednesday, July 28, 2010
Questions of innocence
The following editorial was published in the Houston Chronicle on July 27, 2010.
Positive developments in two cases here equal a good week for Texas justice.
In two very different venues in Houston last week, progress was made in addressing an endemic stain on Texas justice: the wrongful conviction of innocent people.
In an emotional courtroom scene, a teary-eyed state District Judge Joan Campbell announced she would recommend the release of 39-year-old Allen Wayne Porter, who has served 19 years of a life sentence in state prison for participation in a 1990 robbery-rape in southwest Houston.
After years of pleading innocence and seeing his efforts at exoneration rebuffed, Porter wrote a detailed letter to Harris County District Attorney Pat Lykos. She forwarded it to attorneys in her office's post-conviction review section, who compiled testimony that convinced Judge Campbell that Porter had been wrongfully identified by a victim and did not participate in the crime. District Attorney Lykos deserves credit for giving Porter's case the thorough scrutiny that would likely not have occurred under her predecessor, Chuck Rosenthal.
"The integrity of the criminal justice system means everything," said Lykos. "Wrongful convictions are a triple tragedy — for the accused, the victim and society. The true criminal is free to continue to commit offenses."
Judge Campbell ordered Porter released on bond pending action by the Texas Court of Criminal Appeals on her recommendation.
Ironically, a day later another district attorney was in Houston leading an effort to undercut the Texas Forensic Science Commission's ability to determine the validity of arson evidence that led to the execution of a Corsicana man, Cameron Todd Willingham. A national arson expert who consulted with the commission, Craig Beyler, concluded that the evidence was flawed and investigators should have known that.
The Innocence Project estimates that more than 600 inmates in Texas prisons were convicted using the same kind of questionable evidence.
Williamson County District Attorney John Bradley was appointed chairman of the commission by Gov. Rick Perry, who had refused a last-minute stay of execution request by Willingham. Bradley was part of a shake-up of the commission membership by the governor shortly before a scheduled presentation by Beyler to the group. Bradley canceled the meeting. Critics charged that Perry used Bradley to ice the probe and prevent political embarrassment to the governor before the November election.
Before last week's meeting, Bradley had issued a memo that if adopted would have restricted the commission's jurisdiction to evidence processed in state-accredited crime labs. That would have effectively taken the Willingham matter out of consideration.
On Friday, the commission committee looking into the Willingham case issued tentative findings that the arson evidence was "flawed science," but that arson investigators did not commit misconduct or negligence.
The commission pledged to examine arson investigation techniques in Texas and indicated it will take up the Willingham case at a meeting later in the summer.
Most significantly, the commission voted 8-0 to reject Bradley's memo. Chronicle columnist Rick Casey called the vote a defining moment for the commission in asserting its independence and authority.
It was a good week in Houston for Texas justice. One DA did her job and helped free an innocent man, while another was prevented from sabotaging the commission created by the state Legislature to improve Lone Star forensic science.
Positive developments in two cases here equal a good week for Texas justice.
In two very different venues in Houston last week, progress was made in addressing an endemic stain on Texas justice: the wrongful conviction of innocent people.
In an emotional courtroom scene, a teary-eyed state District Judge Joan Campbell announced she would recommend the release of 39-year-old Allen Wayne Porter, who has served 19 years of a life sentence in state prison for participation in a 1990 robbery-rape in southwest Houston.
After years of pleading innocence and seeing his efforts at exoneration rebuffed, Porter wrote a detailed letter to Harris County District Attorney Pat Lykos. She forwarded it to attorneys in her office's post-conviction review section, who compiled testimony that convinced Judge Campbell that Porter had been wrongfully identified by a victim and did not participate in the crime. District Attorney Lykos deserves credit for giving Porter's case the thorough scrutiny that would likely not have occurred under her predecessor, Chuck Rosenthal.
"The integrity of the criminal justice system means everything," said Lykos. "Wrongful convictions are a triple tragedy — for the accused, the victim and society. The true criminal is free to continue to commit offenses."
Judge Campbell ordered Porter released on bond pending action by the Texas Court of Criminal Appeals on her recommendation.
Ironically, a day later another district attorney was in Houston leading an effort to undercut the Texas Forensic Science Commission's ability to determine the validity of arson evidence that led to the execution of a Corsicana man, Cameron Todd Willingham. A national arson expert who consulted with the commission, Craig Beyler, concluded that the evidence was flawed and investigators should have known that.
The Innocence Project estimates that more than 600 inmates in Texas prisons were convicted using the same kind of questionable evidence.
Williamson County District Attorney John Bradley was appointed chairman of the commission by Gov. Rick Perry, who had refused a last-minute stay of execution request by Willingham. Bradley was part of a shake-up of the commission membership by the governor shortly before a scheduled presentation by Beyler to the group. Bradley canceled the meeting. Critics charged that Perry used Bradley to ice the probe and prevent political embarrassment to the governor before the November election.
Before last week's meeting, Bradley had issued a memo that if adopted would have restricted the commission's jurisdiction to evidence processed in state-accredited crime labs. That would have effectively taken the Willingham matter out of consideration.
On Friday, the commission committee looking into the Willingham case issued tentative findings that the arson evidence was "flawed science," but that arson investigators did not commit misconduct or negligence.
The commission pledged to examine arson investigation techniques in Texas and indicated it will take up the Willingham case at a meeting later in the summer.
Most significantly, the commission voted 8-0 to reject Bradley's memo. Chronicle columnist Rick Casey called the vote a defining moment for the commission in asserting its independence and authority.
It was a good week in Houston for Texas justice. One DA did her job and helped free an innocent man, while another was prevented from sabotaging the commission created by the state Legislature to improve Lone Star forensic science.
Saturday, July 24, 2010
Texas haunted by innocent man's execution and cover-up
The following opinion by Michael Stone was published in the Portland Progressive Examiner on July 23, 2010.
While Texas Governor Rick Perry continues to deny the fact that Texas executed an innocent man, Texas Forensic Science Commission Chairman John Bradley is trying to end an investigation into the testimony of arson investigators that helped lead to Cameron Todd Willingham's execution.
The capital punishment evidence used against Willingham was proven to be "junk science," yet Perry ignored the truth and permitted the execution of an innocent man. Willingham, wrongly convicted of arson, was put to death in 2004 for killing his three children.
After the conviction, but before the execution, new and compelling forensic evidence had been made available to Perry that proved the fire was not arson. Perry ignored that evidence, and then went on to try to cover-up and bury evidence proving an innocent man was to be executed.
Indeed, in the past five years, at least six arson experts have examined evidence in the Willingham case and found that there were no credible indications that the fire was intentionally set. The Texas Forensic Science Commission was about to report those facts before Perry replaced numerous commission members, and squashing any possibility of a public accounting before an upcoming election.
Last fall Perry abruptly replaced Samuel Bassett, the head of the Texas Forensic Science Commission and the commission's founding chairman, with political ally and capital punishment proponent John Bradley. Perry made the move in order to avoid public testimony by science experts prepared to demonstrate at once both Willingham's innocence and Perry's callous and willful disregard of an innocent man's life. It was a blatant attempt at cover-up.
Perry's mistake in allowing the execution of an innocent man is only compounded by his attempt at cover-up. Perry's strategy of cover-up rests on a conspiracy theory claim that the preponderance of the evidence showing Perry knowingly allowed the execution of an innocent man is nothing but the fabrication of forces opposed to capital punishment.
Governor Perry knew there was no arson, yet allowed Willingham to be executed. Perry's behavior in the matter is despicable. He brings shame to the state of Texas, and himself. He should be held accountable. The cover-up must not be allowed to stand. Cameron Todd Willingham deserves justice.
While Texas Governor Rick Perry continues to deny the fact that Texas executed an innocent man, Texas Forensic Science Commission Chairman John Bradley is trying to end an investigation into the testimony of arson investigators that helped lead to Cameron Todd Willingham's execution.
The capital punishment evidence used against Willingham was proven to be "junk science," yet Perry ignored the truth and permitted the execution of an innocent man. Willingham, wrongly convicted of arson, was put to death in 2004 for killing his three children.
After the conviction, but before the execution, new and compelling forensic evidence had been made available to Perry that proved the fire was not arson. Perry ignored that evidence, and then went on to try to cover-up and bury evidence proving an innocent man was to be executed.
Indeed, in the past five years, at least six arson experts have examined evidence in the Willingham case and found that there were no credible indications that the fire was intentionally set. The Texas Forensic Science Commission was about to report those facts before Perry replaced numerous commission members, and squashing any possibility of a public accounting before an upcoming election.
Last fall Perry abruptly replaced Samuel Bassett, the head of the Texas Forensic Science Commission and the commission's founding chairman, with political ally and capital punishment proponent John Bradley. Perry made the move in order to avoid public testimony by science experts prepared to demonstrate at once both Willingham's innocence and Perry's callous and willful disregard of an innocent man's life. It was a blatant attempt at cover-up.
Perry's mistake in allowing the execution of an innocent man is only compounded by his attempt at cover-up. Perry's strategy of cover-up rests on a conspiracy theory claim that the preponderance of the evidence showing Perry knowingly allowed the execution of an innocent man is nothing but the fabrication of forces opposed to capital punishment.
Governor Perry knew there was no arson, yet allowed Willingham to be executed. Perry's behavior in the matter is despicable. He brings shame to the state of Texas, and himself. He should be held accountable. The cover-up must not be allowed to stand. Cameron Todd Willingham deserves justice.
Wednesday, July 21, 2010
Forensic panel must resist chair's efforts at sabotage
The following opinion by Barry Scheck and Patricia Willingham Cox was published in the Houston Chronicle on July 20, 2010.
This Friday, the Texas Forensic Science Commission (TFSC) is meeting in Houston to discuss, among other things, the status of its inquiry into whether arson investigations across the state have been based for many years on outdated and discredited scientific analysis and that the Texas criminal justice system has failed to recognize this fact. The inquiry arose from two cases — those of Cameron Todd Willingham and Ernest Willis — in which arson had been found and both men were sentenced to death.
In Willis’ case, the system identified its error when Ori White, the prosecutor responsible for retrial after appeal, relying on the expertise of Dr. Gerald Hurst, realized how wrong the original arson analysis was. He promptly moved to dismiss the case, and Willis was ultimately pardoned on the grounds of actual innocence.
Cameron Todd Willingham was not so lucky. Despite asserting his innocence, he was executed in 2004 based on the same arson evidence that prosecutor White — and the arson community nationwide — had realized was scientifically baseless. Before Willingham was executed, Gov. Rick Perry ignored a plea from Hurst, the expert Ori White relied upon, that arson analysis in Willingham’s case was plainly unreliable.
Our interest in these issues is not abstract. One of us, Patricia Cox, is a cousin of Cameron Todd Willingham. The other, Barry Scheck, is co-founder of the Innocence Project, which exonerates the wrongfully convicted through DNA evidence.
In May 2006, we asked the TFSC to undertake this inquiry about arson evidence. We submitted a 48-page report from an independent panel of the nation’s leading arson investigators, which concluded that the scientific analysis used to convict Willingham was not valid. The commissioners then engaged their own national expert to review the matter, who agreed that the forensic analysis used to convict Willingham was wrong — and further, that experts who testified at Willingham’s trial should have known it was wrong at the time. Days before that expert was to present his findings, Perry removed three commissioners, including the chair, Sam Bassett, and appointed Williamson County District Attorney John Bradley as the new chair. Bradley immediately shut down the Willingham hearing.
In an op-ed on these pages last November, Bradley denied charges that his actions were politically motivated and decried those “[who] have made exaggerated claims and drawn premature conclusions about the case.” He then assured Texans that the commission’s investigation “will be completed” using a “disciplined, scientific approach.” Instead, what we have seen so far is not a review of scientific issues but a bureaucratic effort to undermine, if not end, the Willingham inquiry by rewriting the commission’s rules and its jurisdiction.
Last week, after closed meetings that may violate the Texas Open Meetings Act, Bradley sent out an unsigned legal memo instructing commissioners that they have a “relatively narrow investigative jurisdiction.”
Employing “Catch-22” logic, he claimed that commissioners lack the “discretion or power” to investigate evidence that was not from a laboratory accredited by the Department of Public Safety (DPS) — which, as it happens, did not accredit labs before 2003, years after the Willingham fire. By this reasoning, the TFSC cannot review any pre-2003 matter, such as the Houston Police Department crime lab evidence, the scandal that gave rise to its formation.
In 2008, the TFSC carefully considered the jurisdiction question, and, with assent from the Attorney General’s office, determined that the Willingham and other old cases like it are well within its authority.
And rightly so: The Willingham inquiry into the use of unreliable arson analysis is an urgent matter for more than 600 people incarcerated in Texas whose arson convictions may have been based on invalid science. If its investigation is derailed, the commissioners would be turning their backs on these potentially innocent Texans.
Rather than becoming mired in bureaucratic shell games, the commissioners should take their cue from the FBI, which, after learning that a scientific test it used for three decades to do composite bullet lead analysis was unreliable, not only stopped using this flawed science but systematically reviewed its old cases and notified prosecutors across the country when it could no longer stand behind the testimony of its own agent examiners. The same should be done in this instance.
The people of Texas deserve a justice system they can believe in. But if commissioners keep allowing Bradley to rewrite the rules and sabotage the commission’s mission, their ability to redress the forensic problems that have plagued the criminal justice system in Texas will never materialize.
Scheck is co-founder of the Innocence Project; Cox is a cousin of Cameron Todd Willingham.
This Friday, the Texas Forensic Science Commission (TFSC) is meeting in Houston to discuss, among other things, the status of its inquiry into whether arson investigations across the state have been based for many years on outdated and discredited scientific analysis and that the Texas criminal justice system has failed to recognize this fact. The inquiry arose from two cases — those of Cameron Todd Willingham and Ernest Willis — in which arson had been found and both men were sentenced to death.
In Willis’ case, the system identified its error when Ori White, the prosecutor responsible for retrial after appeal, relying on the expertise of Dr. Gerald Hurst, realized how wrong the original arson analysis was. He promptly moved to dismiss the case, and Willis was ultimately pardoned on the grounds of actual innocence.
Cameron Todd Willingham was not so lucky. Despite asserting his innocence, he was executed in 2004 based on the same arson evidence that prosecutor White — and the arson community nationwide — had realized was scientifically baseless. Before Willingham was executed, Gov. Rick Perry ignored a plea from Hurst, the expert Ori White relied upon, that arson analysis in Willingham’s case was plainly unreliable.
Our interest in these issues is not abstract. One of us, Patricia Cox, is a cousin of Cameron Todd Willingham. The other, Barry Scheck, is co-founder of the Innocence Project, which exonerates the wrongfully convicted through DNA evidence.
In May 2006, we asked the TFSC to undertake this inquiry about arson evidence. We submitted a 48-page report from an independent panel of the nation’s leading arson investigators, which concluded that the scientific analysis used to convict Willingham was not valid. The commissioners then engaged their own national expert to review the matter, who agreed that the forensic analysis used to convict Willingham was wrong — and further, that experts who testified at Willingham’s trial should have known it was wrong at the time. Days before that expert was to present his findings, Perry removed three commissioners, including the chair, Sam Bassett, and appointed Williamson County District Attorney John Bradley as the new chair. Bradley immediately shut down the Willingham hearing.
In an op-ed on these pages last November, Bradley denied charges that his actions were politically motivated and decried those “[who] have made exaggerated claims and drawn premature conclusions about the case.” He then assured Texans that the commission’s investigation “will be completed” using a “disciplined, scientific approach.” Instead, what we have seen so far is not a review of scientific issues but a bureaucratic effort to undermine, if not end, the Willingham inquiry by rewriting the commission’s rules and its jurisdiction.
Last week, after closed meetings that may violate the Texas Open Meetings Act, Bradley sent out an unsigned legal memo instructing commissioners that they have a “relatively narrow investigative jurisdiction.”
Employing “Catch-22” logic, he claimed that commissioners lack the “discretion or power” to investigate evidence that was not from a laboratory accredited by the Department of Public Safety (DPS) — which, as it happens, did not accredit labs before 2003, years after the Willingham fire. By this reasoning, the TFSC cannot review any pre-2003 matter, such as the Houston Police Department crime lab evidence, the scandal that gave rise to its formation.
In 2008, the TFSC carefully considered the jurisdiction question, and, with assent from the Attorney General’s office, determined that the Willingham and other old cases like it are well within its authority.
And rightly so: The Willingham inquiry into the use of unreliable arson analysis is an urgent matter for more than 600 people incarcerated in Texas whose arson convictions may have been based on invalid science. If its investigation is derailed, the commissioners would be turning their backs on these potentially innocent Texans.
Rather than becoming mired in bureaucratic shell games, the commissioners should take their cue from the FBI, which, after learning that a scientific test it used for three decades to do composite bullet lead analysis was unreliable, not only stopped using this flawed science but systematically reviewed its old cases and notified prosecutors across the country when it could no longer stand behind the testimony of its own agent examiners. The same should be done in this instance.
The people of Texas deserve a justice system they can believe in. But if commissioners keep allowing Bradley to rewrite the rules and sabotage the commission’s mission, their ability to redress the forensic problems that have plagued the criminal justice system in Texas will never materialize.
Scheck is co-founder of the Innocence Project; Cox is a cousin of Cameron Todd Willingham.
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