The following editorial was published in the Fayette (NC) Observer on February 28, 2010.
When a three-judge panel in Raleigh reversed Greg Taylor's 1993 conviction for murdering a prostitute, it established two important conclusions:
The state's new Innocence Inquiry Commission, unique among the 50 states, is a success and an important new tool to ensure justice for all. It was Taylor's last chance, and his lawyers were able to prove to a panel of three Superior Court judges that he was innocent.
Perhaps more important than this one case is this:
The system of justice was more broken than we knew, and the commission may soon see a torrent of appeals from others in similar circumstances.
There's one particular circumstance that may be a big factor. Taylor's hearing revealed that in many cases, forensic evidence from the State Bureau of Investigation has been withheld from defense lawyers.
In Taylor's case, and apparently many others, lawyers never got the SBI's "bench notes." At Taylor's trial, those notes would have shown that initial lab reports, which showed blood inside his SUV following the slaying, were wrong. Follow-ups to the first test came up negative.
If that evidence had been presented in court, Taylor might never have had to waste more than 16 years of his life behind bars for a crime he didn't commit.
While SBI officials tried to defend the agency's former policies on evidence release, Director Robin Pendergraft said all evidence, including bench notes, is now provided to lawyers.
But what about cases investigated when the old policy was in effect? Are there other Greg Taylors unjustly serving time in our prison system? N.C. Center on Actual Innocence Executive Director Chris Mumma wants independent investigators to review every case that went through the SBI labs in that time period. If the SBI won't agree to that, we hope the center seeks a court order to make it happen.
We expect lawyers whose clients were convicted then also will be taking a second look at those cases. They should.
It is just as important that the cases of accused murderers who were convicted and executed during that time also be thoroughly probed. If innocent people were put to death, it would be the most tragic miscarriage of justice of all.
As Taylor said after his exoneration, "This is not about innocent people. This is about injustice."
It's clear from Taylor's case, and what was revealed during his hearing this month, that there has been injustice aplenty in North Carolina.
Sunday, February 28, 2010
Friday, February 26, 2010
This case was a crime
The following editorial was published in the New York Daily News on February 26, 2010.
Five years after crying rape and sending a man to prison for a crime that never happened, Biurney Peguero has been slapped with a one- to three-year sentence for committing perjury.
She deserves that much - and more. Peguero should have been required to spend at least as much time behind bars as did William McCaffrey, the innocent man she locked away.
That Peguero eventually admitted fabricating her account of a brutal assault by McCaffrey and two other men does not mitigate her offense. Nor was hers garden-variety perjury of the kind that witnesses perpetrate to, say, dodge an indictment.
Peguero's sworn words stole the freedom of a blameless individual as surely as if she had kidnapped and held him hostage for 50 months. Her eligibility to apply for parole in a year pales in comparison.
She also played the criminal justice system - the police, the Manhattan district attorney's office, a judge and two juries - for fools. They bought a story that in the clear light of hindsight had grounds for doubt.
And, so, the Peguero case must serve as an object lesson for law enforcement authorities and judges as to the makings of a wrongful conviction. It should also reinforce for them the need for speedy reconsideration when there is substantial evidence that an injustice has been done.
Peguero's tale was horrifying. She said she met McCaffrey after a long night of drinking in upper Manhattan and wound up with him and his friends in a van. In graphic detail, she described being raped at knifepoint by McCaffrey and two others. She offered as evidence a bite mark.
So convincing was Peguero that Supreme Court Justice Richard Carruthers slammed McCaffrey with a 20-year sentence - more than the recommended maximum - saying, "she gave up caring what you and your accomplices were doing in sexually assaulting her; hoping only that you would not take her life."
But a medical exam had turned up no evidence that Peguero had been raped at all, let alone by McCaffrey, let alone by three men.
But she had also told a friend there had been only one rapist.
But the men returned Peguero to her friends rather than dumping her on the street.
But police couldn't bring cases against the other two supposed attackers.
But a witness said Peguero had gotten into an unrelated fight with her friends, the melee in which she suffered the bite mark.
The DA's office says it investigated to the fullest extent possible. Still, this was that most dangerous of prosecutorial entities: the single-witness case. And it went horribly wrong.
Later, in 2007, after advances in DNA technology, McCaffrey's lawyers asked for access to DNA left with the bite mark. The material should have been provided forthwith, in keeping with then-DA Robert Morgenthau's stated policy. But a year passed before a DNA test proved that McCaffrey had not bitten Peguero, as had been presented at his trial.
Then, after Peguero recanted her story in March 2009, it took yet another nine months before he was freed. When that day finally came, Carruthers apologized profusely and called the conviction a catastrophe for both McCaffrey and the criminal justice system..
The judge was right on both counts. Now, the goal must be never to stumble into another such disaster. New DA Cy Vance made a campaign issue of preventing wrongful convictions. He is moving to create a special unit for that purpose.
The horrible saga of McCaffrey's imprisonment must be part of the curriculum.
Five years after crying rape and sending a man to prison for a crime that never happened, Biurney Peguero has been slapped with a one- to three-year sentence for committing perjury.
She deserves that much - and more. Peguero should have been required to spend at least as much time behind bars as did William McCaffrey, the innocent man she locked away.
That Peguero eventually admitted fabricating her account of a brutal assault by McCaffrey and two other men does not mitigate her offense. Nor was hers garden-variety perjury of the kind that witnesses perpetrate to, say, dodge an indictment.
Peguero's sworn words stole the freedom of a blameless individual as surely as if she had kidnapped and held him hostage for 50 months. Her eligibility to apply for parole in a year pales in comparison.
She also played the criminal justice system - the police, the Manhattan district attorney's office, a judge and two juries - for fools. They bought a story that in the clear light of hindsight had grounds for doubt.
And, so, the Peguero case must serve as an object lesson for law enforcement authorities and judges as to the makings of a wrongful conviction. It should also reinforce for them the need for speedy reconsideration when there is substantial evidence that an injustice has been done.
Peguero's tale was horrifying. She said she met McCaffrey after a long night of drinking in upper Manhattan and wound up with him and his friends in a van. In graphic detail, she described being raped at knifepoint by McCaffrey and two others. She offered as evidence a bite mark.
So convincing was Peguero that Supreme Court Justice Richard Carruthers slammed McCaffrey with a 20-year sentence - more than the recommended maximum - saying, "she gave up caring what you and your accomplices were doing in sexually assaulting her; hoping only that you would not take her life."
But a medical exam had turned up no evidence that Peguero had been raped at all, let alone by McCaffrey, let alone by three men.
But she had also told a friend there had been only one rapist.
But the men returned Peguero to her friends rather than dumping her on the street.
But police couldn't bring cases against the other two supposed attackers.
But a witness said Peguero had gotten into an unrelated fight with her friends, the melee in which she suffered the bite mark.
The DA's office says it investigated to the fullest extent possible. Still, this was that most dangerous of prosecutorial entities: the single-witness case. And it went horribly wrong.
Later, in 2007, after advances in DNA technology, McCaffrey's lawyers asked for access to DNA left with the bite mark. The material should have been provided forthwith, in keeping with then-DA Robert Morgenthau's stated policy. But a year passed before a DNA test proved that McCaffrey had not bitten Peguero, as had been presented at his trial.
Then, after Peguero recanted her story in March 2009, it took yet another nine months before he was freed. When that day finally came, Carruthers apologized profusely and called the conviction a catastrophe for both McCaffrey and the criminal justice system..
The judge was right on both counts. Now, the goal must be never to stumble into another such disaster. New DA Cy Vance made a campaign issue of preventing wrongful convictions. He is moving to create a special unit for that purpose.
The horrible saga of McCaffrey's imprisonment must be part of the curriculum.
Wednesday, February 24, 2010
The Herald-Sun, on the NC Innocence Commission
The following editorial was published in the Durham, NC Herald-Sun on February 18, 2010.
Feb. 18
The Herald-Sun, Durham, N.C., on the Innocence Inquiry Commission:
Greg Taylor wasn't an innocent lamb. He was a crack addict who stopped to get high in the wrong place, and he testified that he found Jacquetta Thomas's broken body in a Raleigh cul-de-sac and didn't report it to police.
But he didn't kill her and he didn't deserve to serve 16 years in jail, and it's a huge victory for North Carolina that the Innocence Inquiry Commission freed him.
It wasn't easy. It took years and several humiliating exonerations in capital cases before the General Assembly took the plunge and became the first state to establish, fund and empower an innocence commission. By the time the legislation passed in 2006, Taylor had already served 13 years in jail.
The odds that his case would be selected were also slim. The commission wasn't designed to replace the justice system; instead, it acts as a backstop, hearing only felony cases in which there is credible, verifiable evidence that the defendant is innocent. Then it's up to the defendant to prove his innocence, a perfect inversion of our "innocent until proven guilty" system.
Greg Taylor and the others like him are only half of the equation. The other half are the defendants like Henry Reeves, who was convicted of indecent liberties with a child in 2001. Reeves was the first person whose case made it all the way through the Innocence Commission's investigations, hearings and judicial review. In the end, three judges determined that there was not enough evidence to establish Reeves' innocence.
In establishing the Innocence Inquiry Commission, the North Carolina General Assembly did three very risky things.
First, legislators accepted the overwhelming evidence that the justice system is imperfect and puts an unknown number of innocent people behind bars.
Second, they agreed that the appeals system offers insufficient relief for the wrongfully imprisoned, and established a backstop that could -- and now does -- get some of those people out of jail.
Third, by adding that opportunity, it opened the state to a new class of lawsuits from former inmates whose innocence has been established and vetted by a state-funded panel of judges.
The things we have taken from Greg Taylor can't be restored, but it seems inevitable that some court will end up pondering the question of how much we owe in exchange for 6,149 days of a man's life.
Whatever it is, we ought to pay it, and with good will.
Not just because we owe it to him -- and we do -- but because Greg Taylor is the emblem of North Carolina's restless devotion to justice for all.
Feb. 18
The Herald-Sun, Durham, N.C., on the Innocence Inquiry Commission:
Greg Taylor wasn't an innocent lamb. He was a crack addict who stopped to get high in the wrong place, and he testified that he found Jacquetta Thomas's broken body in a Raleigh cul-de-sac and didn't report it to police.
But he didn't kill her and he didn't deserve to serve 16 years in jail, and it's a huge victory for North Carolina that the Innocence Inquiry Commission freed him.
It wasn't easy. It took years and several humiliating exonerations in capital cases before the General Assembly took the plunge and became the first state to establish, fund and empower an innocence commission. By the time the legislation passed in 2006, Taylor had already served 13 years in jail.
The odds that his case would be selected were also slim. The commission wasn't designed to replace the justice system; instead, it acts as a backstop, hearing only felony cases in which there is credible, verifiable evidence that the defendant is innocent. Then it's up to the defendant to prove his innocence, a perfect inversion of our "innocent until proven guilty" system.
Greg Taylor and the others like him are only half of the equation. The other half are the defendants like Henry Reeves, who was convicted of indecent liberties with a child in 2001. Reeves was the first person whose case made it all the way through the Innocence Commission's investigations, hearings and judicial review. In the end, three judges determined that there was not enough evidence to establish Reeves' innocence.
In establishing the Innocence Inquiry Commission, the North Carolina General Assembly did three very risky things.
First, legislators accepted the overwhelming evidence that the justice system is imperfect and puts an unknown number of innocent people behind bars.
Second, they agreed that the appeals system offers insufficient relief for the wrongfully imprisoned, and established a backstop that could -- and now does -- get some of those people out of jail.
Third, by adding that opportunity, it opened the state to a new class of lawsuits from former inmates whose innocence has been established and vetted by a state-funded panel of judges.
The things we have taken from Greg Taylor can't be restored, but it seems inevitable that some court will end up pondering the question of how much we owe in exchange for 6,149 days of a man's life.
Whatever it is, we ought to pay it, and with good will.
Not just because we owe it to him -- and we do -- but because Greg Taylor is the emblem of North Carolina's restless devotion to justice for all.
Tuesday, February 23, 2010
Is it time we do something about prosecutorial abuse?
The following editorial was published in the Beaufort Observer on February 22, 2010.
"It's better for ten guilty men to go free than for one innocent man to go to jail."
Greg Taylor went free last week, after 17 years in prison for a crime he did not commit. And most will recall Alan Gell who, like Greg Taylor was sent to prison for a crime for which he was not guilty. Both were victims of bad prosecutions. And of course there is always Mike Nifong, of Duke lacrosse infamy.
And now we have yet another local case in Pitt County.
All of these cases involved prosecutorial abuse. And taken together they leave a lingering question: What should be done when law enforcement and judicial officials perform badly?
Prosecutors have traditionally been afforded immunity from prosecution even for misconduct in office, except in very rare cases. Those "rare cases" are in fact so rare they almost never happen. But it seems that in recent years the rarity of instances of prosecutorial abuse are becoming not so rare.
We believe Nifong was treated appropriately by "the system." He was removed from office and will never be able to serve as a prosecutor again. But what about the prosecutors of Alan Gell? They were given a slap on the wrist by the bar association, probably to pacify more than anything else and we have heard nothing about what will happen to the SBI agents and their superiors who knew about the exclusion of information in their lab work. That many of them are long gone, after 17 years, is not sufficient to not address the problem.
We think the time has come for the legislature to address the issue. We're not sure exactly what the action should be but to be sure there are those much smarter than we are that can divine the proper line between abuse of prosecutorial power and honest mistakes made by well meaning solicitors.
We believe punishment for willful prosecutorial abuse should be the same as that which the prosecutor seeks to impose on the victim. It certainly should be serious enough to deter abuse. And we would reserve a lesser, but still very severe penalty for malfeasance by a prosecutor. Ban them from the practice of law, just as we feel doctors guilty of malpractice should be banned from the practice of medicine.
Again, we don't claim to have all the answer to the bramble of issues involved, but we do think that the current state of affairs, no pun intended, is unacceptable and it is time for the legislature to tackle the problem. Prosecutors are not above the law they seek to impose of the rest of us.
"It's better for ten guilty men to go free than for one innocent man to go to jail."
Greg Taylor went free last week, after 17 years in prison for a crime he did not commit. And most will recall Alan Gell who, like Greg Taylor was sent to prison for a crime for which he was not guilty. Both were victims of bad prosecutions. And of course there is always Mike Nifong, of Duke lacrosse infamy.
And now we have yet another local case in Pitt County.
All of these cases involved prosecutorial abuse. And taken together they leave a lingering question: What should be done when law enforcement and judicial officials perform badly?
Prosecutors have traditionally been afforded immunity from prosecution even for misconduct in office, except in very rare cases. Those "rare cases" are in fact so rare they almost never happen. But it seems that in recent years the rarity of instances of prosecutorial abuse are becoming not so rare.
We believe Nifong was treated appropriately by "the system." He was removed from office and will never be able to serve as a prosecutor again. But what about the prosecutors of Alan Gell? They were given a slap on the wrist by the bar association, probably to pacify more than anything else and we have heard nothing about what will happen to the SBI agents and their superiors who knew about the exclusion of information in their lab work. That many of them are long gone, after 17 years, is not sufficient to not address the problem.
We think the time has come for the legislature to address the issue. We're not sure exactly what the action should be but to be sure there are those much smarter than we are that can divine the proper line between abuse of prosecutorial power and honest mistakes made by well meaning solicitors.
We believe punishment for willful prosecutorial abuse should be the same as that which the prosecutor seeks to impose on the victim. It certainly should be serious enough to deter abuse. And we would reserve a lesser, but still very severe penalty for malfeasance by a prosecutor. Ban them from the practice of law, just as we feel doctors guilty of malpractice should be banned from the practice of medicine.
Again, we don't claim to have all the answer to the bramble of issues involved, but we do think that the current state of affairs, no pun intended, is unacceptable and it is time for the legislature to tackle the problem. Prosecutors are not above the law they seek to impose of the rest of us.
Saturday, February 06, 2010
DNA and justice
The following editorial was originally published in the Los Angeles Times on February 6, 2010.
Expanding DNA testing and preserving DNA evidence can help ensure that the guilty, and only the guilty, are punished.
February 6, 2010
Thirty-three years after he was convicted of raping a neighbor in Rochester, N.Y., Frederick Peacock became the 250th American to be exonerated by DNA evidence. Peacock, now 60, was paroled from prison decades ago, but he continued to insist that he had been wrongly convicted, and in 2002 the New York-based Innocence Project took up his case. This week, DNA testing that wasn't available either at the time of his conviction in 1976 or his parole in 1982 confirmed that he was not guilty of the rape for which he had served six years in prison.
But Peacock's case is more than just another example of a life damaged by wrongful conviction. The sheer length of time it took for him to clear his name highlights not only the need for broad access to DNA testing, but the importance of preserving evidence, even long after a case appears to be over.
"CSI" and other TV shows would have us believe that DNA is tested as a matter of course. The truth is that ahodgepodge of inadequate laws, varying by state, guarantee no such thing. One problem is access: Although 47 states permit convicted criminals to seek DNA testing in order to reopen their cases, the requirements vary widely. Alabama and Kentucky, for example, allow it only for convicts on death row. Other states bar it for convicts who have confessed. (That would have disqualified Peacock, who is severely mentally ill and confessed after a lengthy interrogation.) Other states set deadlines by which it must be requested, or bar testing for those convicted after testing became widespread in the 1990s. But in fact, certain types of testing became widely available only in the early 2000s and are still not routinely performed everywhere.
Thirty-two states and the District of Columbia have statutes requiring the preservation of evidence, but the details are often left to the discretion of law enforcement or individual judges. California requires that evidence be preserved for the duration of incarceration, and that should be the minimum standard for all states. The Peacock case also should inspire states to repeal the confession-linked ban. It underscores what numerous studies have shown: that confessions can be unreliable.
Preservation is desired not just by convicts and their defense attorneys. Some prosecutors advocate evidence preservation because the same DNA that exonerates one person can help convict the perpetrator as well, helping to solve cold cases.
Saving DNA evidence is not simply a matter of compassion for the wrongfully incarcerated. It should also be a top priority for those who want to see wrongdoers punished. Because for every Frederick Peacock who went to jail for a crime he did not commit, a perpetrator went free.
Expanding DNA testing and preserving DNA evidence can help ensure that the guilty, and only the guilty, are punished.
February 6, 2010
Thirty-three years after he was convicted of raping a neighbor in Rochester, N.Y., Frederick Peacock became the 250th American to be exonerated by DNA evidence. Peacock, now 60, was paroled from prison decades ago, but he continued to insist that he had been wrongly convicted, and in 2002 the New York-based Innocence Project took up his case. This week, DNA testing that wasn't available either at the time of his conviction in 1976 or his parole in 1982 confirmed that he was not guilty of the rape for which he had served six years in prison.
But Peacock's case is more than just another example of a life damaged by wrongful conviction. The sheer length of time it took for him to clear his name highlights not only the need for broad access to DNA testing, but the importance of preserving evidence, even long after a case appears to be over.
"CSI" and other TV shows would have us believe that DNA is tested as a matter of course. The truth is that ahodgepodge of inadequate laws, varying by state, guarantee no such thing. One problem is access: Although 47 states permit convicted criminals to seek DNA testing in order to reopen their cases, the requirements vary widely. Alabama and Kentucky, for example, allow it only for convicts on death row. Other states bar it for convicts who have confessed. (That would have disqualified Peacock, who is severely mentally ill and confessed after a lengthy interrogation.) Other states set deadlines by which it must be requested, or bar testing for those convicted after testing became widespread in the 1990s. But in fact, certain types of testing became widely available only in the early 2000s and are still not routinely performed everywhere.
Thirty-two states and the District of Columbia have statutes requiring the preservation of evidence, but the details are often left to the discretion of law enforcement or individual judges. California requires that evidence be preserved for the duration of incarceration, and that should be the minimum standard for all states. The Peacock case also should inspire states to repeal the confession-linked ban. It underscores what numerous studies have shown: that confessions can be unreliable.
Preservation is desired not just by convicts and their defense attorneys. Some prosecutors advocate evidence preservation because the same DNA that exonerates one person can help convict the perpetrator as well, helping to solve cold cases.
Saving DNA evidence is not simply a matter of compassion for the wrongfully incarcerated. It should also be a top priority for those who want to see wrongdoers punished. Because for every Frederick Peacock who went to jail for a crime he did not commit, a perpetrator went free.
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