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

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.

Time to ban junk science from Texas courtrooms

The following op-ed was published by the Houston Chronicle on October 2, 2010.


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.