Sunday, January 30, 2011

Wrongly convicted Smith and Allen deserve to stay free

The following editorial was published by the (Loraine, Ohio) Morning Journal on January 30, 2011.

Some how, some way, justice needs to be done to keep Nancy Smith and Joseph Allen free from prison.

The 1994 jury trial that convicted them in the alleged molestation of several children from a Lorain Head Start program was a travesty of justice.

Those who have studied the case in the years since the conviction are convinced they are innocent. The jury in 1994 was not permitted to see certain information that could have prevented the convictions.

As Lorain County Common Pleas Judge James Burge put it in 2009, “The court has absolutely no confidence that these verdicts are correct.”

However, the Ohio Supreme Court was correct to rule last week that Burge overstepped his authority by acquitting Smith and Allen in 2009 after a paperwork error in their original sentencings sent the case to him to be corrected. The justices were not looking at the question of whether Smith and Allen were guilty, only whether Burge had the authority to change the verdict in their case.

The high court said Burge should only have corrected the minor sentencing error, not used it as an opening to overturn the 1994 convictions.

If the Supreme Court hadn’t ruled as it did, prosecutors and courts across the state could be overwhelmed by thousands of inmates seeking unwarranted resentencing hearings because of minor clerical errors. That’s why Lorain County Prosecutor Dennis Will, former Ohio Attorney General Richard Cordray and the Ohio Prosecuting Attorneys Association fought so hard to overturn Burge’s ruling.

That being said, it would be a grave miscarriage of justice to send Smith and Allen back to prison. The stain of their wrongful conviction in 1994 still tarnishes Lorain County.

Although Will wasn’t responsible for the original prosecution of the Head Start case, he and his office are stuck with the consequences now. Justice must be served today by undoing past injustices. Too many questions have been raised to go unaddressed.

Nancy Smith and Joseph Allen deserve to live their lives as free citizens in the company of their families and loved ones.

A pardon by the governor would fall short of declaring them innocent, but it would keep them free. That seems to be the best they can expect, given the failures of the legal system to provide the true justice they deserve. Gov. John Kasich should take a look.

Wednesday, January 26, 2011

Restoring Hop Sing's faith in forensic science

The following guest editorial was published by the Winston-Salem (NC) Journal on January 23, 2011.

Restoring Hop Sing's faith in forensic science


I first had faith in forensic science when I saw the episode of “Bonanza” in the 1960s in which the Asian servant Hop Sing proved Little Joe’s innocence of a murder charge through the ancient Chinese art of fingerprinting.

My faith in properly performed forensic science was reinvigorated in 2003 when DNA testing finally solved the 1984 Sykes murder by identifying Willard Brown as the rapist-murderer. Coupled with Brown’s confession that he acted alone, the court exonerated Darryl Hunt and the governor issued a pardon of innocence.

Most of us assume that if an innocent person is charged with a crime that he will be cleared by forensic science — as on “CSI.” This is what hundreds of innocent people who were wrongfully incarcerated thought, too. Crime victims and their families also believed in forensic science. What I have learned in my three decades of working in the criminal-justice system is that we can be blinded by the power of the words “forensic science” just as we can be fooled by faith in any human process.

DNA testing is now the gold standard of forensic science. In the last two decades, 265 innocent people have been freed by DNA, including 17 from death row. Seven of the 265 DNA exonerees are from our state. My faith in forensic science has been shaken, however, by the revelation that 50 percent of those exonerated by DNA were wrongfully put in prison by improper forensic-science methods or testimony.

In Raleigh last year, Greg Taylor was freed after 17 years by a three-judge court due partly to misrepresentations by the North Carolina SBI Laboratory. In line with the lab’s practices, SBI Agent Duane Deaver turned over only one test result that gave a “false positive” showing that there was blood on Taylor’s truck. That was the only physical evidence that connected Taylor to a murder. Deaver did not disclose subsequent, more reliable tests that showed there was no blood on Taylor’s truck.

In Durham, Derrick Allen was freed last year because the SBI laboratory failed to disclose serology tests that showed innocence. In 2009, George Goode’s death sentence was reduced to life because a federal judge found that Deaver gave “misleading” testimony. In the Goode case, the SBI repeatedly disparaged the defense attorney, who pointed out the false testimony for many years. Also in 2009, a Davie County jury found Dr. Kirk Turner not guilty of murder, in part because, as the jury foreman said, Deaver’s testimony was “fraud.”

I have also seen improper practices by the SBI laboratory in murder cases I have defended. In the Francisco Laboy case in Catawba County, the SBI lab violated several court orders by using all the alleged blood evidence during DNA testing and by continuing to conduct testing after the court ordered it to stop so that defense experts could have access to evidence.

In the Hunt case, the SBI lab expert testified in court in 1985 and 1990 that “masking” of the suspect’s bodily fluid by the victim’s fluid could have given a false impression of innocence. This enabled the prosecutors to argue that Hunt was still guilty even though his blood type was “B” and the suspect’s fluid sample from the rape kit was “O.” In 2004, I found out that the true rapist and killer’s blood type was “O,” and that the SBI had known since 1986 that Brown’s blood type was “O.” The point is, the laboratory analyst who testified against Hunt was an SBI agent — a sworn law-enforcement officer — and her badge gave her misleading testimony the ring of truth.

In reaction to Taylor’s exoneration, N.C. Attorney General Roy Cooper commissioned a study of the SBI lab by two retired FBI agents. They concluded that these questionable practices by the SBI lab’s serology section were used in 230 cases. Other sections of the lab are still being audited. More convictions could be called into question.

Shouldn’t forensic scientists speak the truth about their work? Shouldn’t their testing records be disclosed so that prosecutors, defense attorneys and jurors know what tests were performed? If mistakes like these are being made, citizens are not getting their money’s worth. Many guilty people may go free and many innocents may be wrongfully imprisoned or executed. The hard work of detectives and investigators will be flushed away because of bad scientific practices.

Scapegoating is not the answer. Earlier this month, the SBI fired Deaver — the agent who gave misleading testimony in the Taylor and Goode cases. This firing will not solve the underlying structural and cultural problems at the SBI laboratory. Creating an independent crime lab in this state would be a start. It would make Hop Sing proud.

Mark Rabil is the co-director of the Wake Forest Innocence & Justice Clinic.

Monday, January 24, 2011

Evidence, and justice, call for a new ruling

The following editorial was published by the Detroit Free Press on January 24, 2011.

In this state, the Michigan Supreme Court must ensure that judges are accountable to the law -- and to justice.

So far, however, the state's highest court has ignored the demands of justice -- and very probably the law -- in the case of Lorinda Swain. New evidence has convinced even the sentencing judge of her innocence, but last month, the Michigan Supreme Court, by a 4-3 vote, refused to hear the case.

The action came after the Michigan Court of Appeals reversed a decision last year by Calhoun County Circuit Judge Conrad Sindt to grant Swain, 50, of Burlington, a new trial because of ineffective counsel. Sindt released Swain on bond in August 2009.

She was convicted in 2002 and sentenced to 25 to 50 years for having oral sex with her 13-year-old adopted son, Ronald Swain, who later said he lied about the incidents.

Lawyers for the University of Michigan Innocence Clinic presented new evidence to Sindt, calling two witnesses to refute trial testimony: Union City school bus driver Tanya Winterburn and William Risk, a student who lived two houses away when the alleged sexual assaults occurred.

According to trial testimony, Swain sent Ronald's brother, Cody Swain, outside first and sexually assaulted Ronald in the house before the bus came. But Winterburn told Sindt she never saw Cody waiting for the bus alone.

William Risk said he always saw the boys waiting together. Neither Risk nor Winterburn, however, were called by Swain's defense attorney.

Even so, the Court of Appeals denied a new trial, arguing, in effect, that the evidence was not really new because Swain's trial attorney knew about it, even though he did not use it or even interview the witnesses -- exactly how you would expect an ineffective attorney to perform. Such a narrow view of the court rules regarding new evidence denies due process.

"Even when you have evidence that will convince the judge that sent the defendant away for decades of innocence, the Court of Appeals is saying, 'Too bad, go away,' " said David A. Moran, a law professor who heads the University of Michigan Innocence Clinic.

After seven years in prison, Swain has been free on bond and working since Sindt's ruling a year and a half ago. She likely will return to prison soon, unless the Supreme Court reconsiders its decision. Justice and the law demand that it does.

Monday, January 17, 2011

Getting It Right

The following editorial was published by the Columbus Dispatch on January 15, 2011.

Former prosecutor's book describes errors common in wrongful convictions

Convicting the wrong person of a terrible crime benefits no one, except the criminal who goes unpunished as a result.

For the innocent defendant, the damage is obvious. But it is just as real for everyone else: Justice has been short-circuited, and a criminal remains free to hurt others. Motivating good people in the criminal-justice system to act to prevent or reverse wrongful convictions should be easy.

Former prosecutor and former Ohio Attorney General Jim Petro knows firsthand, though, that it isn't. He and his wife, Nancy, seek to do something about that with False Justice, their just-published book that outlines common errors that lead to wrongful convictions, as well as widely held myths that allow the problem to continue.

From the beginning of his career as an assistant Franklin County prosecutor, and through his time as state attorney general, when he expanded the state's collection of DNA samples from felons to increase the chances of identifying the perpetrators of crimes, Petro focused on finding and convicting those guilty of crimes.

Only later, when he learned of cases that sent innocent men to jail while the real perpetrators committed more crimes, did he focus on the fact that a false conviction is no victory for law and order.

The book should have a powerful impact on the public's view of what can and does go wrong in the criminal-justice system. The Petros believe that public opinion could drive politicians to make changes necessary to prevent prosecutions of innocent defendants and remove some of the barriers to fixing mistakes already made.

Petro may be the best thing that's happened in recent years to the movement to challenge wrongful criminal convictions. As a former prosecutor, he understands and respects the drive by police and prosecutors to protect the public by putting bad guys in prison. Yet, having been awakened to the reality of wrongful conviction by the case of Clarence Elkins, a Summit County man who spent seven years in prison after being falsely convicted of raping and killing his mother-in-law, he felt obligated to work to change the system.

His status as the state's top law-enforcement officer probably helped gain attention for Elkins' case; when the Ohio Innocence Project persuaded him to intervene in 2005 on behalf of Elkins' request for further DNA testing to prove his innocence, he was the first state attorney general to advocate for a convicted man seeking exoneration.

In Elkins' case, Petro was convinced by DNA evidence that proved that another man had committed the crime, and Petro didn't understand why Elkins' backers had such difficulty persuading the judge and prosecutor in the case to allow new evidence to be examined, at Elkins' expense.

But research into the issue also showed him all the other factors that can skew justice, many involving common misunderstandings about psychology and how memory works - or doesn't. He describes them in the book: false confessions; unreliable informants or snitches; bad lawyering; bad science; government misconduct; and mistaken eyewitness testimony.

The last item probably is the most common factor in wrongful convictions; it definitely is the most prevalent in those who have been exonerated, having played a role in 75 percent of such cases. Although research demonstrates convincingly how easily someone's memory can be corrupted, intentionally or unintentionally, and especially in a time of great stress, eyewitness testimony still is considered extremely credible by juries. It often trumps concrete evidence to the contrary.

Readers might be surprised to learn how often people are driven to confess to crimes they didn't commit. The young and mentally limited can be pressured, confused and bullied; others, who become convinced they can't win their case, confess in hopes of lessening their sentence or receiving other favors. Petro explains that the law allows interrogators to lie to those they are questioning - for example, to say that an accomplice has confessed and fingered the suspect or to tell him that he has failed a polygraph test when he hasn't.

Drawing on the research of others, the Petros recommend several reforms, some of which were included in Senate Bill 77, a landmark criminal-justice bill passed by the Ohio General Assembly last year. The bill requires blind administration of suspect line-ups and photo arrays, meaning the person showing the pictures or conducting the line-up doesn't know who the suspect is, so he can't send clues, intentionally or otherwise, to those trying to pick out the perpetrator.

It also requires video or audio recording of interrogations, and that police departments save crime-scene DNA evidence for up to 30 years and makes it easier for convicted people to have new DNA evidence analyzed. The bill also helps convict the guilty, by adding any arrested felons to the pool of those who must submit DNA samples for a national database.

The Petros name eight myths about the justice system: everyone in prison claims to be innocent; innocent people almost never are convicted; only the guilty confess; wrongful convictions are caused only by innocent human error; an eyewitness is the best testimony; errors are corrected on appeal; questioning a conviction dishonors the victim of the crime; and if the justice system needs to be fixed, the professionals will do it.

No one knows how many people have been wrongly convicted, but if it's even a fraction of a percent, that could mean thousands of Americans languish in prison unjustly. Just as important, those who committed the crimes remain free to commit more.

The Petros have done a great public service by endeavoring to explain the causes of wrongful conviction and offering solutions.

Sunday, January 09, 2011

Every new DNA exoneration in Dallas County reveals how broken the justice system is

The following opinion was published in the Ft. Worth (TX) Star-Telegram on January 8, 2011.


The people of Dallas County should be adorned in sackcloth and ashes this day as a sign of deep mourning for the travesties they have allowed to happen in the name of justice.

All Texans, in fact, ought to grieve for those we have permitted to be convicted and imprisoned in a system that has proved to be hopelessly flawed and perhaps even criminal in its application of law enforcement, prosecution and punishment.

There are many whom we now know our system failed, and in failing them it has failed us all.

Some would say that the atrocious miscarriages of justice were mistakes, mere anomalies that are bound to happen in an over-taxed criminal justice structure.

It is clear, however, that the numbers are such that these wrongful convictions and false imprisonments are not aberrations, but the results of an ingrained systemic methodology designed with an emphasis on retribution rather than fairness.

Once again last week in a Dallas courtroom, another man stood before a judge to hear his name cleared of a crime he did not commit -- a crime for which he spent more than 30 years in the state penitentiary.

Cornelius Dupree Jr., who was only 21 when he was convicted in connection with a 1979 abduction, rape and robbery and given a 75-year sentence, was overwhelmed when he heard the judge say, "You're free to go."

He became the 25th man in Dallas County to be exonerated since 2001 -- the 21st cleared through DNA evidence. His ordeal showcases a pattern of "mistakes" that is unfathomable.

A co-defendant, Anthony Massingill, was also cleared through DNA testing in that case but remains in prison on a life sentence for another rape, although authorities at the time thought both crimes had been committed by the same people. Every day he remains behind bars is another slap in the face of Lady Justice.

There ought to be weeping and wailing in the streets of Dallas for such egregious acts.

It is amazing that DNA evidence dating back 30 years was still available.

Many in the Dallas County district attorney's office had assumed that no such evidence existed before 1981. Now it only makes one wonder, "How many more?"

Dallas County District Attorney Craig Watkins, appearing last week on PBS' NewsHour, said there were "several others in the pipeline" who may be innocent.

Because of his embracing and cooperating with the Innocence Project, and for creating a Convictions Integrity Unit to look at old cases to correct some of these horrific errors, Watkins is without a doubt the best district attorney Dallas has had in at least 40 years.

Based on the criticism he received during his first term in office, from media as well as other detractors, one might get the impression that he has been a dismal failure. It's almost as if they'd like to see a return to the good ol' boy system/dynasty that ruled the DA's office for so long and was responsible for most of these wrongful convictions.

Watkins is to be commended for his focus on this major issue and for his leadership in trying to get other district attorneys in the state and around the country to act similarly.

He points out the need to use technology and science to do a better job in putting the right people behind bars, and freeing those who are truly innocent. But the problem is not all about the science, he says.

In each of the cases in which DNA has proved a person innocent, there was "eyewitness" testimony from a victim or bystander. That means something has been terribly wrong with that process.

Watkins, who is beginning his second term as DA, has recommended changes. An independent panel, named for another wrongly convicted man from Fort Worth who died in prison, has suggested a series of safeguards against erroneous convictions, and the new state Legislature should consider those recommendations in the session that begins Tuesday.

I wish all district attorneys believed as Watkins does: "As DAs, we're not here to seek convictions. We're here to seek justice."


Wednesday, January 05, 2011

A serious offense

The following editorial was published in the Washington Post on January 5, 2011.

IT'S BEEN a little more than a year since Donald E. Gates was freed from prison after serving 28 years for a D.C. rape and murder in the District that he did not commit. So appalling were the circumstances of his case - prosecutors failed to disclose information discrediting the main piece of evidence against Mr. Gates - that questions arose about the validity of similar evidence in other cases. The U.S. Attorney's OfficeĆ¢ˆšinconsistent capitalization in twp seems to have taken those concerns to heart and has launched a rigorous investigation. Nonetheless, we continue to believe that a special commission is needed to bring together key stakeholders in areview of practices that can lead to miscarriages of justice like the one that befell Mr. Gates.

Mr. Gates was exonerated in December 2009 in the 1981 killing of Catherine Schilling after DNA tests revealed another man committed the crime. Since then, a furious behind-the-scenes battle has been waged between prosecutors and the D.C. Public Defender Service over what kind of investigation is needed into the faulty forensics that were central to the prosecution of Mr. Gates. An FBI special agent testified that two pubic hairs found on the victim's body were microscopically identical to a sample taken from Mr. Gates. The public defender's office uncovered information, long known to prosecutors, that undermined the credibility of the analyst and cited research that calls into question the use of hair and fiber analysis. Public defenders want the government to review any case in which the testimony of FBI hair examiners played a significant role in obtaining a conviction for a serious offense.

The government has taken a more limited view, focusing on the work of examiners who - like the one who testified in Mr. Gates's case - were implicated in a report by the Justice Department's Office of the Inspector General. Even that's a massive undertaking going back three decades. Some 130 cases have been reviewed, and the U.S. Attorney's Office, to its credit, invited the Mid-Atlantic Innocence Project to independently review 24 cases. U.S. Attorney Ronald C. Machen Jr. also created a position to assist prosecutors with all facets of forensics litigation.

That's a good start, but the concerns of the public defender should not be overlooked. After all, it was the U.S. Attorney's Office - albeit under different leadership - that failed to alert Mr. Gates's defense to doubts about the material used to convict him, an omission for which there has yet to be any public explanation. Chief Judge Lee F. Satterfield of the D.C. Superior Court has wisely decided to appoint a judge to review the forthcoming report of the Mid-Atlantic Innocence Project. More important, he has decided to undertake a study, with the participation of police, prosecutors and defense attorneys, of whether the District should create a commission to bolster protections against practices that lead to wrongful convictions.