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.

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.

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.

Tuesday, July 20, 2010

U.S. Justice Targeting Conrad Black

The following op-ed by Peter Worthington was published in the Toronto Sun on July 19, 2010.

That the U.S. Internal Revenue Service would bring suit against Conrad Black, claiming $71 million in unpaid taxes, reeks of malice more than justice.

It’s hard to escape the conclusion the tax charges emanate from the U.S. Supreme Court’s ruling on Black’s behalf, and sending back to the appeal court his conviction on three relatively minor fraud charges and obstruction.

The clear message is he was found guilty on “honest services” charges that don’t exist in his case.

The Supreme Court ruled “honest services” apply only to bribery and kickbacks, neither of which applies to Black.

Instead of rolling with the counter punch and admitting error, the U.S. justice system dredged up the tax issue, which Black’s lawyers say shouldn’t apply because he paid Canadian taxes between 1998 and 2003.

The charges seem designed to cost Black money he probably doesn’t have for lawyers’ fees — more Department of Justice vindictiveness.

One need look no further than Patrick Fitzgerald, U.S. Attorney for the district of Northern Illinois, to see the bitterness and lust for revenge against Black.

Prosecutors were embarrassed when the original trial found Black not guilty of nine of the most serious fraud charges, and they were mortified and embarrassed again when the Supreme Court lambasted them.

The moral of the IRS tax charges is don’t mess with American Justice, which has a record and reputation of malevolence and meanness, regardless of errors the system makes.

Take John Demjanjuk, an aging Ukrainian auto worker whom the Justice Department decided was Ivan the Terrible, a sadistic Nazi prison guard at Treblinka and extradited him to Israel where he was initially sentenced to death.

To its eternal credit, the Israeli Supreme Court ruled Demjanjuk was not Ivan the Terrible and his conviction was a grotesque error of mistaken identity, and freed him. Rather than acknowledge error, the U.S. Justice Department kept after Demjanjuk, dug up other charges from another Nazi camp, revoked his citizenship and deported him to stand trial in Germany.

No one was ever punished or called to account for falsely branding Demjanjuk as a war criminal. During the war, he was a Ukrainian conscripted into SS auxiliaries.

The U.S. justice system is equally vindictive towards Leonard Peltier, convicted of murder in the death of two FBI agents killed in a range war at the Lakota Sioux reserve at Pine Ridge in 1975. The trial was admittedly fraudulent, but the justice system refused to consider releasing Peltier 35 years after the incident.

Even the appeal judge in his case urged the president to show clemency. But the system is unmoving, refusing to admit error or forgiveness. Lost in the case is the fact an Indian youth was shot and killed when the agents were, but no investigation was ever carried out.

Some double-standard.

Laurie Bembenek was falsely convicted in 1981 of murdering her husband’s ex-wife in Milwaukee. She escaped 10 years later to Canada, where Toronto Lawyer, and now Superior Court Justice, Frank Marrocco took her case pro bono and got her freed.

The Wisconsin justice system never forgave her, and though she paid for various DNA tests that proved her innocence, the system remains adamant and won’t apologize.

So it’s no surprise the system is taking another run at Conrad Black, with arguably the most vindictive prosecutor in the U.S. determined to get him.

Nor is it surprising the U.S. has the world’s highest documented incarceration rate — a prison population of some 2.5 million.

Monday, July 19, 2010

Jersey Democrat, Justice Integrity Project on Kagan Nomination

Jersey Democrat, Justice Integrity Project
Urge ‘No’ On Kagan, Citing Rights Concerns

Washington, DC (July 19, 2010) – The Senate should reject Democrat Elena Kagan’s Supreme Court nomination based on her shabby civil rights record that’s apparent from her Department of Justice work, according to a Democratic former New Jersey legislator and Jersey City mayoral candidate.

Louis M. Manzo, drawing on his experience fighting one of the nation’s most explosive political prosecutions, said the Senate should reject Kagan because of “her indefensible support of restrictions on constitutional freedoms and her failures to defend due process.”

The bipartisan Justice Integrity Project (JIP) today released Manzo’s statement by video to illustrate the project’s objections to Kagan on similar executive power grounds. The civil rights project announced its objections on June 28, just before the Supreme Court thwarted Kagan’s effort to block a hearing for former Alabama Gov. Don Siegelman. Manzo’s statement and similar constitutional criticisms of Kagan are available before Senate voting at JIP’s unique website, which includes substantive criticism of her.

“While serving as Solicitor General arguing against certiorari in Siegelman v. United States, Kagan ignored constitutional protections provided by due process,” Manzo said. “Also troubling is the manner by which Kagan feigned ignorance to what is frightfully apparent in Siegelman’s case – prosecutorial misconduct. Instead of questioning the bizarre prosecution tactics employed against Siegelman, Kagan blindly supported positions taken by prosecutors with obvious personal and political agendas.”

“What all cases involving wrongful prosecutions share in common,” said Manzo, a target in the Bid Rig III case in New Jersey that helped propel Republican U.S. Attorney Chris Christie to New Jersey’s governorship last fall, “is the necessity of a fair judicial system.” In Bid Rig III, DOJ gave a felon large sums to donate to New Jersey campaigns such as Manzo’s, with Democrats overwhelmingly indicted. Manzo won a major victory this spring when his trial judge dismissed the most serious charges.

Expanding on Manzo’s themes, JIP Executive Director Andrew Kreig cited compelling evidence that Siegelman, 64, was framed by DOJ, which seeks to imprison him for 20 more years.

“The gist,” said Kreig, “is that Kagan acted selfishly to advance her technocrat career, combining bad legal judgment with a monstrous cover-up. This opens a window to her other failings, which don’t receive the attention they deserve. Senate confirmation these days is largely kabuki-style theater for the public, fostered by a bipartisan, back-scratching elite. Here, a president’s loyalists seek to install one of their cronies over timid, partisan objections about a few special-interest topics. But we are skipping big issues about due process and our other basic liberties, which would inflame the public if ever fully aired.”

About the Justice Integrity Project

The Justice Integrity Project examines potentially abusive prosecutorial and judicial decisions. Its research so far includes prosecutions against Democrats Siegelman and Manzo, Republicans Bernard Kerik and Ted Stevens, and targets in military and other national security work.

Louis M. Manzo Statement*

Opposing Confirmation of Elena Kagan to the U.S. Supreme Court

(Click for video)

As a case study of the Justice Integrity Project, I am speaking today to urge defeat of Elena Kagan’s nomination to the Supreme Court.

What all cases involving wrongful prosecutions share in common is the necessity of a fair judicial system where redress can be attained in the courts of our land.

While serving as Solicitor General, arguing against certiorari in Siegelman v. United States, Kagan ignored Constitutional protections provided by due process. She argued a position that supported the “standard-less sweep [of the law], which allows policemen, prosecutors and juries to pursue their personal predilections” – something previous courts had guarded against.

Her position was an assault on due process.

Despite concerns raised in the opposing argument – the danger posed by vague interpretations of criminal statutes, which infringe on the protections of free speech as provided by the First Amendment – Kagan ignored the sound opinion of the unprecedented position taken by 42 former United States State Attorneys General** and a United States Attorney General who filed an amicus brief in support of Siegelman’s argument.

Kagan defended a position that would restrict Constitutional freedoms.

Also troubling is the manner by which Kagan feigned ignorance to what is frightfully apparent in Siegelman’s case – prosecutorial misconduct. Instead of questioning the bizarre prosecution tactics employed against Siegelman, Kagan blindly supported positions taken by prosecutors with obvious personal and political agendas.

These are attributes which are ill-suited for members of the highest Court in our land. Due process is the examination of the means used to justify the end. Her nomination would pose a grave threat to victims of due process violations, whose only redress is the courts.

For her indefensible support of restrictions on Constitutional freedoms and her failures to defend due process, Elena Kagan should be denied confirmation as a Supreme Court nominee.


Sunday, July 11, 2010

The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill

The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill

by James Scanlan

In a June 23, 2010 editorial here on the nomination of Robert E. O’Neill for the position of US Attorney for the Middle District of Florida, among other things suggesting O’Neill’s unsuitability for the position, I pointed out that O’Neill made a false statement in an application for the position that he submitted to the Florida Federal Judicial Nominating Commission. In the application, O’Neill attributed the initiation of a District of Columbia Bar Counsel investigation of his conduct in United States v. Deborah Gore Dean to a complaint filed by the defendant. In fact, the investigation was not initiated by Dean or anyone associated with her. I also explained that if O’Neill made the same misrepresentation to a federal entity he likely violated 18 U.S.C. § 1001.

Concern about DC Bar confidentiality rules caused me not to reveal the initiator of the investigation in the earlier editorial. But those rules could not be intended to keep the public from knowing that a nominee for one of the most important law enforcement positions in the country made a false statement in the course of seeking the position, particularly when the nominee may have violated federal law. As reflected in a July 9 letter to Attorney General Eric Holder, the investigation was initiated by the Office of Bar Counsel itself as a result of reading a court of appeals opinion criticizing the conduct of O’Neill and his colleagues in the prosecution of the Dean case. The inference is inescapable that O’Neill misrepresented the origin of the investigation because he believed an investigation initiated by a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission or other readers of his application than an investigation initiated by Bar Counsel itself, especially one prompted by a court’s criticism of O’Neill’s conduct. One would think that such a misrepresentation would disqualify the maker from further consideration for any law enforcement position.

The July 9 letter encourages the Attorney General to advise the President to withdraw the O’Neill nomination. If that does not happen, and if the Judiciary Committee should confirm O’Neill, his tenure will be remarkable for nothing if not irony. For O’Neill has achieved some of his notable successes by provocatively asserting that other people lied. Materials on the Dean case made available under the ’Must’ Reading (and Viewing)” portion of this site give great attention to O’Neill’s 50 or so provocative assertions that Dean lied on the stand, often if not invariably in circumstances where he believed or knew for a fact that Dean had not lied. Section B.1 of the Prosecutorial Misconduct page of and Section B of the Robert E. O’ Neill Profile address the way O’Neill and a colleague apparently pressured a government agent into providing testimony that would seem to categorically contradict Dean’s testimony about an interaction with the agent in order that O’Neill could stridently assert that the agent’s testimony showed that Dean lied about the interaction (when O’Neill knew with absolute certainty that Dean had not lied about the interaction). See Section E.2 of the O’Neill profile for other examples of O’Neill’s tactics to facilitate his asserting the Dean lied.

In United States v. Spellissy – a case, like Dean, that O’Neill cites in his application as one of his most important – much of the government’s proof rested on O’Neill’s impeachment of his own witness in these provocative terms:

A liar is a liar. And whether someone is lying to save their soul or their hide, they are still lying. And once you are a liar, you can not trust that person. And for [the witness] to have said what he said in this courtroom, he must have lied repeatedly before the other judge. Or as I said before, he told lies here and told the truth before others.

Only O’Neill knows how often this tactic played a important role in cases that never attracted attention. But regardless of O’Neill’s own practice of calling people liars, in light of the false statement in his US Attorney application, an O’Neill confirmation will diminish the faith of the public in prosecutors generally and the faith of prosecutors in each other. But maybe that would be a good thing. As one observer recently noted:

There is a bond among prosecutors, as there is in most organizations. If a prosecutor makes a statement, there is a consensus among other prosecutors that the statement is correct. For many years, I shared that perspective. I no longer do. Now, I am more apt to question my colleagues when they embark on dubious courses of action. I do not take what a colleague says at face value simply because he or she is a federal prosecutor.

These seemingly philosophical remarks may be found at page 39 of O’Neill’s Florida Nominating Commission application, where he disparages allegations against him by a former subordinate four pages before falsely attributing the DC Bar Counsel investigation of his conduct in the Dean case to a complaint filed by the defendant.