The following editorial was published by the Dallas Morning News on April 26, 2011.
Texas House members took a bold stand last week with preliminary passage of a bill to dissect and improve the justice system.
Then they changed their minds.
The end result was rejection of a new Timothy Cole Innocence Commission to analyze wrongful convictions and identify ways that Texas could avoid repeating shameful outcomes in the court system.
With more than 40 DNA-proven exonerations of convicted men — more than any other state — Texas should be looking for ways to guard against more hideous miscarriages of justice. Defeat of HB 115 sends the offensive message that the status quo is somehow good enough. Well, it isn’t.
The bill called for a nine-person commission that would review every case of a convicted person who was exonerated in the courts. The panel would pinpoint the causes of wrongful conviction, then “consider and develop solutions and methods” to reduce the chance for error through new laws, procedures, programs and training.
On the initial vote Thursday, the House gave the bill decisive preliminary passage, 82-54. But legislative whiplash came the next day, and the bill went down just as decisively on the final vote, 51-91.
Rep. Tryon Lewis, R-Odessa, made a final plea to keep review of criminal cases “within the judiciary.” Outside review, he warned, would invite “all of these politics” that have swirled around the Texas Forensic Science Commission’s examination of the Cameron Todd Willingham arson-murder case.
We can’t imagine a more distorted and myopic view. If it hadn’t been for the forensics panel, it might not be clear to the justice community that arson investigators had a crude understanding of fire science when Willingham was convicted in 1992.
Has the forensic panel’s work been without controversy? No. Has it been free of politics? No, not since the governor’s meddling in the process. But the most important question: Has the forensic inquiry been valuable? Without question. The panel recently issued 17 recommendations for how arson professionals and the courts can be more alert to the standards in that discipline.
Don’t expect the courts to get into that territory. They have not and will not do thoughtful post-mortems in any number of wrongful convictions, including the notorious case of Anthony Graves, who was railroaded and sent to death row. Texas courts utterly failed to read the warning signs of a prosecution that would be laughable if it weren’t so corrupt and cruel.
Outside watchdogs are exactly what Texas courts need.
Ask the family of Timothy Cole, whose name would have been on the new commission. He was wrongly convicted of rape in 1985 and then exonerated by DNA testing in 2008, nine years after he died in prison.
We hope lawmakers have a chance to get this right if proponents of the Cole legislation manage to graft it onto another bill as an amendment. Texas lawmakers must take off the blinders.
Thursday, April 28, 2011
Sunday, April 24, 2011
Celebrating the life of Marie Deans
The following commentary by Todd C. Peppers was published in the Richmond Times-Dispatch on April 24, 2011.
On Friday, April 15, one of the nation's leading advocates for the abolition of the death penalty passed away quietly in a Charlottesville hospice. Her name was Marie McFadden Deans, and for decades she fought to bring fairness, justice and decency to what Supreme Court Justice Harry Blackmun once decried as "the machinery of death," namely, our country's bewildering and stubborn commitment to the barbaric practice of killing its citizens to show that killing is wrong. Marie was a tireless worker who never sought the limelight, but in her death we should pause and consider her contributions to fight against the death penalty regime.
Marie's devotion to abolishing the death penalty was sparked by the brutal murder of her beloved mother-in-law by an escaped convict. In the face of such a horrific loss, Marie responded by founding Murder Victims' Families for Reconciliation, an organization that sought to give a voice to families who believed that the death penalty was not the answer to the terrible loss of their loved ones. At the same time, Marie threw herself into work with Amnesty International and toured prisons across the country — documenting abuses and providing needed data to litigate the cruel and unusual conditions imposed on the forgotten inhabitants of death row.
In 1983, Marie founded the Virginia Coalition on Jails and Prisons — an organization dedicated to fighting for basic legal rights for the men on death row. At the time of its founding, Virginia's death row was — in Marie's words — a "horrific" place filled with drugs, sexual and physical violence, and despair. Marie became an advocate and friend to the men on the row, always motivated by the belief that there was a spark of the divine in even the most hardened inmate. Marie also became a thorn in the side of the Virginia Department of Corrections, which remained unyielding to the basic reforms that Marie demanded until she successfully obtained the legal backing from then-federal district court Judge Robert R. Merhige Jr.
The friendship and support that Marie unselfishly extended to the men extended to the death house, and Marie was present at the execution of 34 men in Virginia and South Carolina — an experience that left her emotionally scarred for the rest of her life. The death row inmates themselves were very protective of their champion, and tried, in their limited circumstances, to express their gratitude to the woman who fought to save them. They painted pictures for Marie (until the Department of Corrections took away their painting supplies), carved statues out of soap, and fashioned jewelry boxes out of match sticks. And when death row inmate Willie Leroy Jones sat down to his final meal, he demanded that Marie, exhausted and surviving on a diet of caffeine and cigarettes, eat part of his potato so that she would keep up her strength. Marie later described the sharing of the food as "taking communion" in the death house.
Marie's efforts not only focused on the men already on death row, but those men on trial for capital murder. Marie was incensed by a legal system which shackled indigent defendants with poorly trained defense attorneys and inadequate resources to hire expert witnesses. Marie became a mitigation expert, collecting relevant information on the backgrounds of capital defendants and weaving that information into a compelling narrative that would be presented to a jury weighing whether to sentence the defendants to life or death. Marie quickly established herself as a leading mitigation expert, and, largely due to her efforts, only two of the 200 men that Marie helped defend were ultimately sentenced to death.
Marie also became involved in the appellate process, as she spent countless hours finding inmates attorneys, filing mitigation evidence in support of habeas petitions, and petitioning governors for clemency for her clients. Marie's greatest triumph was the exoneration of Earl Washington Jr., a mentally retarded man whose false confession was the product of police coercion and manipulation and who came within days of being executed before a fellow death-row inmate, Joe Giarratano, brought Washington's story to her attention. Ironically, it would be the same Joe Giarratano that Marie would spend the rest of her life unsuccessfully fighting to free. Convinced of his factual innocence, Marie's campaign for clemency convinced one Virginia governor —L. Douglas Wilder — to grant Giarratano a conditional pardon and a new trial — a trial that the Virginia attorney general's office refused to hold. As her health steadily declined Marie continued to fight for Giarratano's release, and she was bitterly disappointed when outgoing Virginia Gov. Tim Kaine declined to consider Giarratano's clemency appeal.
Marie resisted efforts by others to publicly celebrate her work, and she despised the label that some bestowed upon her as "the angel of death row." When asked how she wanted to be remembered, Marie settled upon "a courageous fool" — a woman who overcame her anxiety and fears to walk daily amongst the damned and fought battles that many deemed unwinnable. Her courage, her convictions, and her voice will be desperately missed as our society continues to reconsider its embrace of state-sanctioned death.
Todd C. Peppers is the Henry H. and Trudye H. Fowler Professor of Public Affairs at Roanoke College and a lecturer at Washington and Lee University School of Law. He is the co-author of "Anatomy of an Execution: The Life and Death of Douglas Christopher Thomas" (Northeastern University Press, 2009). Contact him at peppers@roanoke.edu.
On Friday, April 15, one of the nation's leading advocates for the abolition of the death penalty passed away quietly in a Charlottesville hospice. Her name was Marie McFadden Deans, and for decades she fought to bring fairness, justice and decency to what Supreme Court Justice Harry Blackmun once decried as "the machinery of death," namely, our country's bewildering and stubborn commitment to the barbaric practice of killing its citizens to show that killing is wrong. Marie was a tireless worker who never sought the limelight, but in her death we should pause and consider her contributions to fight against the death penalty regime.
Marie's devotion to abolishing the death penalty was sparked by the brutal murder of her beloved mother-in-law by an escaped convict. In the face of such a horrific loss, Marie responded by founding Murder Victims' Families for Reconciliation, an organization that sought to give a voice to families who believed that the death penalty was not the answer to the terrible loss of their loved ones. At the same time, Marie threw herself into work with Amnesty International and toured prisons across the country — documenting abuses and providing needed data to litigate the cruel and unusual conditions imposed on the forgotten inhabitants of death row.
In 1983, Marie founded the Virginia Coalition on Jails and Prisons — an organization dedicated to fighting for basic legal rights for the men on death row. At the time of its founding, Virginia's death row was — in Marie's words — a "horrific" place filled with drugs, sexual and physical violence, and despair. Marie became an advocate and friend to the men on the row, always motivated by the belief that there was a spark of the divine in even the most hardened inmate. Marie also became a thorn in the side of the Virginia Department of Corrections, which remained unyielding to the basic reforms that Marie demanded until she successfully obtained the legal backing from then-federal district court Judge Robert R. Merhige Jr.
The friendship and support that Marie unselfishly extended to the men extended to the death house, and Marie was present at the execution of 34 men in Virginia and South Carolina — an experience that left her emotionally scarred for the rest of her life. The death row inmates themselves were very protective of their champion, and tried, in their limited circumstances, to express their gratitude to the woman who fought to save them. They painted pictures for Marie (until the Department of Corrections took away their painting supplies), carved statues out of soap, and fashioned jewelry boxes out of match sticks. And when death row inmate Willie Leroy Jones sat down to his final meal, he demanded that Marie, exhausted and surviving on a diet of caffeine and cigarettes, eat part of his potato so that she would keep up her strength. Marie later described the sharing of the food as "taking communion" in the death house.
Marie's efforts not only focused on the men already on death row, but those men on trial for capital murder. Marie was incensed by a legal system which shackled indigent defendants with poorly trained defense attorneys and inadequate resources to hire expert witnesses. Marie became a mitigation expert, collecting relevant information on the backgrounds of capital defendants and weaving that information into a compelling narrative that would be presented to a jury weighing whether to sentence the defendants to life or death. Marie quickly established herself as a leading mitigation expert, and, largely due to her efforts, only two of the 200 men that Marie helped defend were ultimately sentenced to death.
Marie also became involved in the appellate process, as she spent countless hours finding inmates attorneys, filing mitigation evidence in support of habeas petitions, and petitioning governors for clemency for her clients. Marie's greatest triumph was the exoneration of Earl Washington Jr., a mentally retarded man whose false confession was the product of police coercion and manipulation and who came within days of being executed before a fellow death-row inmate, Joe Giarratano, brought Washington's story to her attention. Ironically, it would be the same Joe Giarratano that Marie would spend the rest of her life unsuccessfully fighting to free. Convinced of his factual innocence, Marie's campaign for clemency convinced one Virginia governor —L. Douglas Wilder — to grant Giarratano a conditional pardon and a new trial — a trial that the Virginia attorney general's office refused to hold. As her health steadily declined Marie continued to fight for Giarratano's release, and she was bitterly disappointed when outgoing Virginia Gov. Tim Kaine declined to consider Giarratano's clemency appeal.
Marie resisted efforts by others to publicly celebrate her work, and she despised the label that some bestowed upon her as "the angel of death row." When asked how she wanted to be remembered, Marie settled upon "a courageous fool" — a woman who overcame her anxiety and fears to walk daily amongst the damned and fought battles that many deemed unwinnable. Her courage, her convictions, and her voice will be desperately missed as our society continues to reconsider its embrace of state-sanctioned death.
Todd C. Peppers is the Henry H. and Trudye H. Fowler Professor of Public Affairs at Roanoke College and a lecturer at Washington and Lee University School of Law. He is the co-author of "Anatomy of an Execution: The Life and Death of Douglas Christopher Thomas" (Northeastern University Press, 2009). Contact him at peppers@roanoke.edu.
A System for Courts to Redress Wrongs
The following letters to the editor were published on April 23, 2011 by the New York Times. They are in response to a proposal by Joseph L. Hoffmann and Nancy J. King to limit state prisoners' access to habeas corpus relief to death penalty cases or those in which a prisoner can prove innocence.
To the Editor:
Eliminating habeas corpus for most state prisoners, as Joseph L. Hoffmann and Nancy J. King urge in “Justice, Too Much and Too Expensive”, will destroy thousands of lives. Do the math of mass incarceration: If “only” .4 percent of habeas petitions are granted, with 1.4 million prisoners in state custody, that would yield a wrongful conviction number of 5,600 persons. The low success rate for habeas petitioners is due to legislative changes made in 1996 in a misguided effort to restrict habeas corpus. For a state prisoner to prevail in federal court now, the claimant must show that the state court reviewing the claim was not only wrong, but also violated “clearly established” federal law as determined by the Supreme Court. This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.
Condemning so many to unconstitutional imprisonment is an incalculable human loss. Those who argue that this price must be paid are not the ones who pay it.
RONALD L. KUBY
New York, April 17, 2011
The writer is a criminal defense lawyer.
To the Editor:
Joseph L. Hoffmann and Nancy J. King want to reform habeas corpus, and they do well explaining how that writ has been abused. But they propose allowing habeas corpus only for capital cases and when a prisoner can produce persuasive new evidence of innocence, an idea antithetical to our system of criminal jurisprudence.
To get habeas relief, it should be sufficient to show a denial of constitutional rights (like the right to competent counsel), or that the government abused the right to a fair trial (such as by withholding evidence).
The state systems of appeal are riddled with inconsistencies and injustice. Habeas corpus is often the only way to secure a remedy. Otherwise, constitutionally abused and innocent people languish in prisons for decades. Reform of habeas may be needed, but that reform should be more judicious than the professors suggest.
LAMAR W. HANKINS
San Marcos, Tex., April 17, 2011
The writer is a lawyer.
To the Editor:
Profs. Joseph L. Hoffmann and Nancy J. King may be premature in their call for a formal limitation on the scope of federal habeas corpus review of state convictions. My recent experience in North Carolina suggests that what appears on paper to have been an extensive review by state judges may not always withstand closer scrutiny.
In a noncapital case in which we believe the defendant is innocent, a state judge held a four-day evidentiary hearing, heard the brief oral argument of the parties and immediately ruled that the defendant had failed to prevail on any issue. He did not explain in any way why he reached that conclusion.
Instead, he asked the state to draft a “proposed” opinion, which he then issued nearly verbatim, including typos. There was no right to review of his decision, so the defendant filed a nearly 100-page petition for review, with more than 400 pages of exhibits. The state filed an opposition that was more than 100 pages.
The court of appeal denied the petition after five business days. Most lawyers would find that incredible. How likely is it that judges actually read the parties’ briefs and the underlying exhibits?
I doubt that most people would think the product of such a process should be insulated from federal habeas review.
JAMES E. COLEMAN Jr.
Durham, N.C., April 17, 2011
The writer is a professor of law at Duke University School of Law and co-director of the Duke Wrongful Convictions Clinic.
To the Editor:
The supposition of Profs. Joseph L. Hoffmann and Nancy J. King is that the criminal justice system is generally efficient and fair. My 13 years as a trial judge convince me it is neither.
Your newspaper has repeatedly reported the release of an innocent person from prison after serving years, often on death row, because of a wrongful conviction. These cases almost always involve capital crimes because the intrepid and overburdened lawyers working on these appeals concentrate their resources on behalf of those most imperiled.
This does not mean, however, that convictions for lesser offenses are free from error. And it is not just the actually innocent who need review of their convictions.
Slovenly and unconstitutional practices can convict the “right” person, but this should give no comfort to the rest of us. A system of unfair trials and scant review will necessarily assure that more of the guilty are convicted, but at the same time more of the actually innocent will be joining them behind bars.
STEPHEN J. FORTUNATO Jr.
Warren, R.I., April 18, 2011
The writer is a retired associate justice of the Rhode Island Superior Court.
To the Editor:
Profs. Joseph L. Hoffmann and Nancy J. King have more faith in state court judges than I have, especially in states in which judges are elected.
As Justice Sandra Day O’Connor said in her concurring opinion in Republican Party of Minnesota v. White (2002): “But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects.”
Further limiting the possibility of meaningful habeas review in federal court will only worsen the effect of judicial elections, because judges often feel they must appear to be tough on crime to be re-elected.
BOB DAVIDOW
Ann Arbor, Mich., April 17, 2011
The writer is a retired professor of law at George Mason University.
To the Editor:
Eliminating habeas corpus for most state prisoners, as Joseph L. Hoffmann and Nancy J. King urge in “Justice, Too Much and Too Expensive”, will destroy thousands of lives. Do the math of mass incarceration: If “only” .4 percent of habeas petitions are granted, with 1.4 million prisoners in state custody, that would yield a wrongful conviction number of 5,600 persons. The low success rate for habeas petitioners is due to legislative changes made in 1996 in a misguided effort to restrict habeas corpus. For a state prisoner to prevail in federal court now, the claimant must show that the state court reviewing the claim was not only wrong, but also violated “clearly established” federal law as determined by the Supreme Court. This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.
Condemning so many to unconstitutional imprisonment is an incalculable human loss. Those who argue that this price must be paid are not the ones who pay it.
RONALD L. KUBY
New York, April 17, 2011
The writer is a criminal defense lawyer.
To the Editor:
Joseph L. Hoffmann and Nancy J. King want to reform habeas corpus, and they do well explaining how that writ has been abused. But they propose allowing habeas corpus only for capital cases and when a prisoner can produce persuasive new evidence of innocence, an idea antithetical to our system of criminal jurisprudence.
To get habeas relief, it should be sufficient to show a denial of constitutional rights (like the right to competent counsel), or that the government abused the right to a fair trial (such as by withholding evidence).
The state systems of appeal are riddled with inconsistencies and injustice. Habeas corpus is often the only way to secure a remedy. Otherwise, constitutionally abused and innocent people languish in prisons for decades. Reform of habeas may be needed, but that reform should be more judicious than the professors suggest.
LAMAR W. HANKINS
San Marcos, Tex., April 17, 2011
The writer is a lawyer.
To the Editor:
Profs. Joseph L. Hoffmann and Nancy J. King may be premature in their call for a formal limitation on the scope of federal habeas corpus review of state convictions. My recent experience in North Carolina suggests that what appears on paper to have been an extensive review by state judges may not always withstand closer scrutiny.
In a noncapital case in which we believe the defendant is innocent, a state judge held a four-day evidentiary hearing, heard the brief oral argument of the parties and immediately ruled that the defendant had failed to prevail on any issue. He did not explain in any way why he reached that conclusion.
Instead, he asked the state to draft a “proposed” opinion, which he then issued nearly verbatim, including typos. There was no right to review of his decision, so the defendant filed a nearly 100-page petition for review, with more than 400 pages of exhibits. The state filed an opposition that was more than 100 pages.
The court of appeal denied the petition after five business days. Most lawyers would find that incredible. How likely is it that judges actually read the parties’ briefs and the underlying exhibits?
I doubt that most people would think the product of such a process should be insulated from federal habeas review.
JAMES E. COLEMAN Jr.
Durham, N.C., April 17, 2011
The writer is a professor of law at Duke University School of Law and co-director of the Duke Wrongful Convictions Clinic.
To the Editor:
The supposition of Profs. Joseph L. Hoffmann and Nancy J. King is that the criminal justice system is generally efficient and fair. My 13 years as a trial judge convince me it is neither.
Your newspaper has repeatedly reported the release of an innocent person from prison after serving years, often on death row, because of a wrongful conviction. These cases almost always involve capital crimes because the intrepid and overburdened lawyers working on these appeals concentrate their resources on behalf of those most imperiled.
This does not mean, however, that convictions for lesser offenses are free from error. And it is not just the actually innocent who need review of their convictions.
Slovenly and unconstitutional practices can convict the “right” person, but this should give no comfort to the rest of us. A system of unfair trials and scant review will necessarily assure that more of the guilty are convicted, but at the same time more of the actually innocent will be joining them behind bars.
STEPHEN J. FORTUNATO Jr.
Warren, R.I., April 18, 2011
The writer is a retired associate justice of the Rhode Island Superior Court.
To the Editor:
Profs. Joseph L. Hoffmann and Nancy J. King have more faith in state court judges than I have, especially in states in which judges are elected.
As Justice Sandra Day O’Connor said in her concurring opinion in Republican Party of Minnesota v. White (2002): “But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects.”
Further limiting the possibility of meaningful habeas review in federal court will only worsen the effect of judicial elections, because judges often feel they must appear to be tough on crime to be re-elected.
BOB DAVIDOW
Ann Arbor, Mich., April 17, 2011
The writer is a retired professor of law at George Mason University.
Saturday, April 23, 2011
The Arts Factory presents… "The Row" By Clifford Holt
Please Note: The playwright was a former death row inmate whose case was overturned and he wrote it while in prison. It is an outstanding script.
"Let's get this straight, you're not dying...you are being killed."
Dates: May 14th (7:30), 15th (4:00), 20th (7:30) and 21st (7:30); 2011.
Price: $12.00 (Reservation Only)
Post show Panel Discussion on Sunday May 15th.
Location: Shaffer United Methodist Church-12002 Miles Avenue, Cleveland, Ohio
(216) 641-7629 *Please leave message regarding any questions and reservations*
MATURE AUDIENCES ONLY
Brief Synopsis
This stage production "The Row" written by playwright Clifford Holt opens up the closed world of women on death row. This production deals with the reality of women's rights and religious understanding. The play looks at how the eight women relate to their circumstances and each other. Red is scheduled to be put to death in 24 hours. The women spend their last time with her discussing everything from men, to religion, as well as entertaining each other with stories and jokes.
"Let's get this straight, you're not dying...you are being killed."
Dates: May 14th (7:30), 15th (4:00), 20th (7:30) and 21st (7:30); 2011.
Price: $12.00 (Reservation Only)
Post show Panel Discussion on Sunday May 15th.
Location: Shaffer United Methodist Church-12002 Miles Avenue, Cleveland, Ohio
(216) 641-7629 *Please leave message regarding any questions and reservations*
MATURE AUDIENCES ONLY
Brief Synopsis
This stage production "The Row" written by playwright Clifford Holt opens up the closed world of women on death row. This production deals with the reality of women's rights and religious understanding. The play looks at how the eight women relate to their circumstances and each other. Red is scheduled to be put to death in 24 hours. The women spend their last time with her discussing everything from men, to religion, as well as entertaining each other with stories and jokes.
Tuesday, April 12, 2011
The Prosecution Rests, but I Can’t
The following opinion by John Thompson was published by the New York Times on April 10, 2011.
I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.
Because of that, prosecutors are free to do the same thing to someone else today.
I was arrested in January 1985 in New Orleans. I remember the police coming to my grandmother’s house — we all knew it was the cops because of how hard they banged on the door before kicking it in. My grandmother and my mom were there, along with my little brother and sister, my two sons — John Jr., 4, and Dedric, 6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess they thought they were coming for a murderer. All the children were scared and crying. I was 22.
They took me to the homicide division, and played a cassette tape on which a man I knew named Kevin Freeman accused me of shooting a man. He had also been arrested as a suspect in the murder. A few weeks earlier he had sold me a ring and a gun; it turned out that the ring belonged to the victim and the gun was the murder weapon.
My picture was on the news, and a man called in to report that I looked like someone who had recently tried to rob his children. Suddenly I was accused of that crime, too. I was tried for the robbery first. My lawyers never knew there was blood evidence at the scene, and I was convicted based on the victims’ identification.
After that, my lawyers thought it was best if I didn’t testify at the murder trial. So I never defended myself, or got to explain that I got the ring and the gun from Kevin Freeman. And now that I officially had a history of violent crime because of the robbery conviction, the prosecutors used it to get the death penalty.
I remember the judge telling the courtroom the number of volts of electricity they would put into my body. If the first attempt didn’t kill me, he said, they’d put more volts in.
On Sept. 1, 1987, I arrived on death row in the Louisiana State Penitentiary — the infamous Angola prison. I was put in a dead man’s cell. His things were still there; he had been executed only a few days before. That past summer they had executed eight men at Angola. I received my first execution date right before I arrived. I would end up knowing 12 men who were executed there.
Over the years, I was given six execution dates, but all of them were delayed until finally my appeals were exhausted. The seventh — and last — date was set for May 20, 1999. My lawyers had been with me for 11 years by then; they flew in from Philadelphia to give me the news. They didn’t want me to hear it from the prison officials. They said it would take a miracle to avoid this execution. I told them it was fine — I was innocent, but it was time to give up.
But then I remembered something about May 20. I had just finished reading a letter from my younger son about how he wanted to go on his senior class trip. I’d been thinking about how I could find a way to pay for it by selling my typewriter and radio. “Oh, no, hold on,” I said, “that’s the day before John Jr. is graduating from high school.” I begged them to get it delayed; I knew it would hurt him.
To make things worse, the next day, when John Jr. was at school, his teacher read the whole class an article from the newspaper about my execution. She didn’t know I was John Jr.’s dad; she was just trying to teach them a lesson about making bad choices. So he learned that his father was going to be killed from his teacher, reading the newspaper aloud. I panicked. I needed to talk to him, reassure him.
Amazingly, I got a miracle. The same day that my lawyers visited, an investigator they had hired to look through the evidence one last time found, on some forgotten microfiche, a report sent to the prosecutors on the blood type of the perpetrator of the armed robbery. It didn’t match mine; the report, hidden for 15 years, had never been turned over to my lawyers. The investigator later found the names of witnesses and police reports from the murder case that hadn’t been turned over either.
As a result, the armed robbery conviction was thrown out in 1999, and I was taken off death row. Then, in 2002, my murder conviction was thrown out. At a retrial the following year, the jury took only 35 minutes to acquit me.
The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.
Why weren’t they punished for what they did? When the hidden evidence first surfaced, Mr. Connick announced that his office would hold a grand jury investigation. But once it became clear how many people had been involved, he called it off.
In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.
I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.
Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.
If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.
A crime was definitely committed in this case, but not by me.
John Thompson is the director of Resurrection After Exoneration, a support group for exonerated inmates.
I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.
Because of that, prosecutors are free to do the same thing to someone else today.
I was arrested in January 1985 in New Orleans. I remember the police coming to my grandmother’s house — we all knew it was the cops because of how hard they banged on the door before kicking it in. My grandmother and my mom were there, along with my little brother and sister, my two sons — John Jr., 4, and Dedric, 6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess they thought they were coming for a murderer. All the children were scared and crying. I was 22.
They took me to the homicide division, and played a cassette tape on which a man I knew named Kevin Freeman accused me of shooting a man. He had also been arrested as a suspect in the murder. A few weeks earlier he had sold me a ring and a gun; it turned out that the ring belonged to the victim and the gun was the murder weapon.
My picture was on the news, and a man called in to report that I looked like someone who had recently tried to rob his children. Suddenly I was accused of that crime, too. I was tried for the robbery first. My lawyers never knew there was blood evidence at the scene, and I was convicted based on the victims’ identification.
After that, my lawyers thought it was best if I didn’t testify at the murder trial. So I never defended myself, or got to explain that I got the ring and the gun from Kevin Freeman. And now that I officially had a history of violent crime because of the robbery conviction, the prosecutors used it to get the death penalty.
I remember the judge telling the courtroom the number of volts of electricity they would put into my body. If the first attempt didn’t kill me, he said, they’d put more volts in.
On Sept. 1, 1987, I arrived on death row in the Louisiana State Penitentiary — the infamous Angola prison. I was put in a dead man’s cell. His things were still there; he had been executed only a few days before. That past summer they had executed eight men at Angola. I received my first execution date right before I arrived. I would end up knowing 12 men who were executed there.
Over the years, I was given six execution dates, but all of them were delayed until finally my appeals were exhausted. The seventh — and last — date was set for May 20, 1999. My lawyers had been with me for 11 years by then; they flew in from Philadelphia to give me the news. They didn’t want me to hear it from the prison officials. They said it would take a miracle to avoid this execution. I told them it was fine — I was innocent, but it was time to give up.
But then I remembered something about May 20. I had just finished reading a letter from my younger son about how he wanted to go on his senior class trip. I’d been thinking about how I could find a way to pay for it by selling my typewriter and radio. “Oh, no, hold on,” I said, “that’s the day before John Jr. is graduating from high school.” I begged them to get it delayed; I knew it would hurt him.
To make things worse, the next day, when John Jr. was at school, his teacher read the whole class an article from the newspaper about my execution. She didn’t know I was John Jr.’s dad; she was just trying to teach them a lesson about making bad choices. So he learned that his father was going to be killed from his teacher, reading the newspaper aloud. I panicked. I needed to talk to him, reassure him.
Amazingly, I got a miracle. The same day that my lawyers visited, an investigator they had hired to look through the evidence one last time found, on some forgotten microfiche, a report sent to the prosecutors on the blood type of the perpetrator of the armed robbery. It didn’t match mine; the report, hidden for 15 years, had never been turned over to my lawyers. The investigator later found the names of witnesses and police reports from the murder case that hadn’t been turned over either.
As a result, the armed robbery conviction was thrown out in 1999, and I was taken off death row. Then, in 2002, my murder conviction was thrown out. At a retrial the following year, the jury took only 35 minutes to acquit me.
The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.
Why weren’t they punished for what they did? When the hidden evidence first surfaced, Mr. Connick announced that his office would hold a grand jury investigation. But once it became clear how many people had been involved, he called it off.
In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.
I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.
Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.
If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.
A crime was definitely committed in this case, but not by me.
John Thompson is the director of Resurrection After Exoneration, a support group for exonerated inmates.
Wednesday, April 06, 2011
Prosecutors belong on side of justice
The following opinion by Tom Lyons was published in the Sarasota (Florida) Herald-Tribune on April 4, 2011.
Prosecutors can be way too much like other trial lawyers in one way that they are not supposed to be.
It's one thing for defense lawyers to argue adamantly that a client is innocent, despite much evidence of guilt. That's their job.
But prosecutors? They are supposed to be on the side of justice. To insist that a defendant is guilty even after new and strong evidence suggests otherwise, is flat out wrong.
Their job, in such an instance, is to drop the charges. Or, if things are past that point, to help reverse a wrongful conviction. It is absolutely not our State Attorney's job to try to keep an apparently innocent person locked up just because that person had once appeared to be guilty.
But prosecutors can become way too focused on winning, it seems.
Defense attorney Derek Byrd called me last week to express outrage about a decision by State Attorney Earl Moreland's office to appeal a judge's ruling that overturned the rape conviction of Derrick Williams based on new DNA evidence.
"I've never been as disappointed" in the State Attorney's Office, said Byrd, a respected defense attorney known for a good working relationship with that office. "There's no basis for an appeal."
He's right. It was not an iffy ruling based on a debatable technicality. Strong evidence, revealed through efforts of lawyers with Florida's Innocence Project, proved that DNA on a shirt worn by the man who raped a Palmetto woman absolutely did not come from Williams, who has spent 18 years in prison on that charge.
A DNA expert testified just days ago that it was highly unlikely that Williams could have worn that shirt and not left his DNA on it. The rapist, it now seems, probably was another black man who looked enough like Williams that the white victim picked Williams' photo out of a book and said she thought he was the man. Even though Williams lacked the scar she said she saw on the rapist's belly, she stood by her identification and a jury convicted Williams.
Research shows that inter-racial misidentification by victims or witnesses is amazingly frequent, even more so than when both are the same race, which is also common. And there was never much else to go on in this case.
Last week a judge overturned Williams' conviction after ruling the DNA evidence would likely have made for a different verdict had the jury had it. And rightly so, given that the DNA facts make his guilt seem not just doubtful, but quite unlikely.
But Moreland and his team failed to admit that. Instead, they prepared to compound what looks like an 18-year injustice with an appeal that, no matter how baseless, would likely have kept the man in prison for months longer.
Moreland, according to Innocence Project director Seth Miller, was set to become the first prosecutor to appeal such a clear-cut, DNA based ruling.
Byrd, who had donated his time to help the Innocence Project present the DNA evidence, and dozens of other defense lawyers who were not involved in the case at all, planned to show up in court today to protest that appeal. But I'm happy to report it was not necessary because whatever made prosecutors lose their good sense — and all sense of fairness — the embarrassing publicity seems to have led them to rethink it.
On Friday afternoon, Moreland returned my call and told me the appeal decision had been too hastily made.
"We were premature," he admitted, and he added that he was reconsidering because he could see no basis for filing it.
Sanity prevailed Monday when Moreland announced that not only would no appeal be filed, but that he also would drop all charges.
The decision shouldn't have been so hard.
Tom Lyons can be contacted at tom.lyons@heraldtribune.com or (941) 361-49
Prosecutors can be way too much like other trial lawyers in one way that they are not supposed to be.
It's one thing for defense lawyers to argue adamantly that a client is innocent, despite much evidence of guilt. That's their job.
But prosecutors? They are supposed to be on the side of justice. To insist that a defendant is guilty even after new and strong evidence suggests otherwise, is flat out wrong.
Their job, in such an instance, is to drop the charges. Or, if things are past that point, to help reverse a wrongful conviction. It is absolutely not our State Attorney's job to try to keep an apparently innocent person locked up just because that person had once appeared to be guilty.
But prosecutors can become way too focused on winning, it seems.
Defense attorney Derek Byrd called me last week to express outrage about a decision by State Attorney Earl Moreland's office to appeal a judge's ruling that overturned the rape conviction of Derrick Williams based on new DNA evidence.
"I've never been as disappointed" in the State Attorney's Office, said Byrd, a respected defense attorney known for a good working relationship with that office. "There's no basis for an appeal."
He's right. It was not an iffy ruling based on a debatable technicality. Strong evidence, revealed through efforts of lawyers with Florida's Innocence Project, proved that DNA on a shirt worn by the man who raped a Palmetto woman absolutely did not come from Williams, who has spent 18 years in prison on that charge.
A DNA expert testified just days ago that it was highly unlikely that Williams could have worn that shirt and not left his DNA on it. The rapist, it now seems, probably was another black man who looked enough like Williams that the white victim picked Williams' photo out of a book and said she thought he was the man. Even though Williams lacked the scar she said she saw on the rapist's belly, she stood by her identification and a jury convicted Williams.
Research shows that inter-racial misidentification by victims or witnesses is amazingly frequent, even more so than when both are the same race, which is also common. And there was never much else to go on in this case.
Last week a judge overturned Williams' conviction after ruling the DNA evidence would likely have made for a different verdict had the jury had it. And rightly so, given that the DNA facts make his guilt seem not just doubtful, but quite unlikely.
But Moreland and his team failed to admit that. Instead, they prepared to compound what looks like an 18-year injustice with an appeal that, no matter how baseless, would likely have kept the man in prison for months longer.
Moreland, according to Innocence Project director Seth Miller, was set to become the first prosecutor to appeal such a clear-cut, DNA based ruling.
Byrd, who had donated his time to help the Innocence Project present the DNA evidence, and dozens of other defense lawyers who were not involved in the case at all, planned to show up in court today to protest that appeal. But I'm happy to report it was not necessary because whatever made prosecutors lose their good sense — and all sense of fairness — the embarrassing publicity seems to have led them to rethink it.
On Friday afternoon, Moreland returned my call and told me the appeal decision had been too hastily made.
"We were premature," he admitted, and he added that he was reconsidering because he could see no basis for filing it.
Sanity prevailed Monday when Moreland announced that not only would no appeal be filed, but that he also would drop all charges.
The decision shouldn't have been so hard.
Tom Lyons can be contacted at tom.lyons@heraldtribune.com or (941) 361-49
Saturday, April 02, 2011
A Victim of Injustice: The Story of Leslie Vass and His Wrongful Conviction
The UDC-David A. Clarke School of Law, Innocence Project Student Association (IPSA) Hosts a Reception to Honor a Maryland Exoneree, Leslie Vass
When: Monday, April 18, 2011
Where: UDC-David A. Clarke, School of Law, Windows Lounge, Bldg 38, 2nd Floor
4200 Connecticut Ave., N.W., Washington, DC 20008
Time: 6PM - 9PM
Cost: Free Admission, Donations Appreciated
Wine & Hors d’oeuvres will be served
A Compelling story of how eyewitness misidentification led to Leslie Vass’ Wrongful Conviction
Keynote Speaker, Leslie Vass, Maryland Exoneree
Special Guests: D.C. Councilmember At-Large, Phil Mendelson, Judiciary Committee Chairman Dean Shelley Broderick, UDC-DCSL, Professor Andrew Ferguson, UDC-DCSL, IPSA Faculty Advisor
Please rsvp by Thursday, April 14, 2011, at: preventing.injustice@gmail.com
Limited Seating!!
When: Monday, April 18, 2011
Where: UDC-David A. Clarke, School of Law, Windows Lounge, Bldg 38, 2nd Floor
4200 Connecticut Ave., N.W., Washington, DC 20008
Time: 6PM - 9PM
Cost: Free Admission, Donations Appreciated
Wine & Hors d’oeuvres will be served
A Compelling story of how eyewitness misidentification led to Leslie Vass’ Wrongful Conviction
Keynote Speaker, Leslie Vass, Maryland Exoneree
Special Guests: D.C. Councilmember At-Large, Phil Mendelson, Judiciary Committee Chairman Dean Shelley Broderick, UDC-DCSL, Professor Andrew Ferguson, UDC-DCSL, IPSA Faculty Advisor
Please rsvp by Thursday, April 14, 2011, at: preventing.injustice@gmail.com
Limited Seating!!
Friday, April 01, 2011
Georgia and the U.S. Supreme Court: Tinkering With the Machinery of Death
The following opinion was distributed by King Features.
Mar 29, 2011
By Amy Goodman
On March 28, the Supreme Court refused to hear the death penalty case of Troy Anthony Davis. It was his last appeal. Davis has been on Georgia’s death row for close to 20 years after being convicted of shooting to death off-duty police officer Mark MacPhail in Savannah. Since his conviction, seven of the nine non-police witnesses have recanted their testimony, alleging police coercion and intimidation in obtaining the testimony. Despite the doubt surrounding his case, Troy Anthony Davis could be put to death within weeks.
Davis is now at the mercy of the Georgia State Board of Pardons and Parole, which could commute his sentence to life without parole. It will be a tough fight, despite widespread national and international support for clemency from figures such as Pope Benedict XVI, Archbishop Desmond Tutu and former President Jimmy Carter.
Davis’ sister, Martina Correia, has tirelessly campaigned for justice for her brother. In response to the Supreme Court decision, she told me: “We were really shocked and appalled yesterday when we received the news ... no one wants to look at the actual innocence, and no one wants to look at the witness recantation as a real strong and viable part of this case, even though new witnesses have come forward. There needs to be a global mobilization about Troy’s case, and the fact that in the United States it’s not unconstitutional to execute an innocent person needs to be addressed once and for all by the U.S. Supreme Court.”
Correia brings up a significant but little-known fact about death penalty law in the U.S., namely, that current court precedent allows the execution of innocent people. Remarkably, the Supreme Court, in a 1993 opinion, suggested that “actual innocence” is not a sufficient cause to be let free. The court only cares if the legal rules are followed, while acknowledging that innocent people could still be convicted and put to death. In such cases, a prisoner could appeal for executive clemency. It seems the court has not yet learned what many states have, that the death penalty system is broken beyond repair.
Illinois recently became the 16th state in the U.S. to outlaw the death penalty. Gov. Pat Quinn, after signing the bill into law, said, “I have concluded that our system of imposing the death penalty is inherently flawed ... it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.” He follows an earlier Illinois governor, Republican George Ryan, who commuted the death sentences of 120 death row prisoners in that state.
Both Illinois governors bring to mind former Supreme Court Justice Harry A. Blackmun, who wrote, in a dissenting opinion in 1994 after the court denied yet another death row inmate’s last appeal, “From this day forward, I no longer shall tinker with the machinery of death.”
Tinkering with the machinery of death is just what some states seem to be doing. Thiopental is one of the three drugs used in the lethal “cocktail” administered in most executions in this country. Hospira, the last U.S.-based company to make sodium thiopental, quit making the controlled drug, creating a national shortage. States began scrambling to keep their death chambers well-stocked. When California borrowed a similar drug from Arizona, California Undersecretary of Corrections and Rehabilitation Scott Kernan wrote in an email, “You guys in AZ are life savers ...”
Georgia, it turns out, seems to have illegally imported its supply from a dubious, London-based company called Dream Pharma Ltd., run by a husband and wife out of a rented space in the back of a driving school. Georgia is not currently licensed by the Drug Enforcement Administration to import controlled substances, so the DEA recently confiscated the state’s thiopental supply. Pending an investigation, Georgia will not have this key ingredient and will not be able to execute Davis or any other death row inmate.
On the same day that the Supreme Court denied Davis’ appeal, Amnesty International issued its annual report on the death penalty. The United States remains among the world’s leading executioners, along with China, Iran, Saudi Arabia, Yemen and North Korea.
In addition to leading the fight for her brother, Martina Correia has been fighting for her own life. The day of the court decision was the 10th anniversary of her ongoing battle against breast cancer. Her face adorns the mobile mammography van that helps save the lives of poor women in Savannah. The National Breast Cancer Coalition named her and former House Speaker Nancy Pelosi “Women Who Get It Right.” Correia, with customary humility, feels she won’t have earned the title until her brother’s life is saved as well.
Denis Moynihan contributed research to this column.
Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 900 stations in North America. She is the author of “Breaking the Sound Barrier,” recently released in paperback and now a New York Times best-seller.
Mar 29, 2011
By Amy Goodman
On March 28, the Supreme Court refused to hear the death penalty case of Troy Anthony Davis. It was his last appeal. Davis has been on Georgia’s death row for close to 20 years after being convicted of shooting to death off-duty police officer Mark MacPhail in Savannah. Since his conviction, seven of the nine non-police witnesses have recanted their testimony, alleging police coercion and intimidation in obtaining the testimony. Despite the doubt surrounding his case, Troy Anthony Davis could be put to death within weeks.
Davis is now at the mercy of the Georgia State Board of Pardons and Parole, which could commute his sentence to life without parole. It will be a tough fight, despite widespread national and international support for clemency from figures such as Pope Benedict XVI, Archbishop Desmond Tutu and former President Jimmy Carter.
Davis’ sister, Martina Correia, has tirelessly campaigned for justice for her brother. In response to the Supreme Court decision, she told me: “We were really shocked and appalled yesterday when we received the news ... no one wants to look at the actual innocence, and no one wants to look at the witness recantation as a real strong and viable part of this case, even though new witnesses have come forward. There needs to be a global mobilization about Troy’s case, and the fact that in the United States it’s not unconstitutional to execute an innocent person needs to be addressed once and for all by the U.S. Supreme Court.”
Correia brings up a significant but little-known fact about death penalty law in the U.S., namely, that current court precedent allows the execution of innocent people. Remarkably, the Supreme Court, in a 1993 opinion, suggested that “actual innocence” is not a sufficient cause to be let free. The court only cares if the legal rules are followed, while acknowledging that innocent people could still be convicted and put to death. In such cases, a prisoner could appeal for executive clemency. It seems the court has not yet learned what many states have, that the death penalty system is broken beyond repair.
Illinois recently became the 16th state in the U.S. to outlaw the death penalty. Gov. Pat Quinn, after signing the bill into law, said, “I have concluded that our system of imposing the death penalty is inherently flawed ... it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.” He follows an earlier Illinois governor, Republican George Ryan, who commuted the death sentences of 120 death row prisoners in that state.
Both Illinois governors bring to mind former Supreme Court Justice Harry A. Blackmun, who wrote, in a dissenting opinion in 1994 after the court denied yet another death row inmate’s last appeal, “From this day forward, I no longer shall tinker with the machinery of death.”
Tinkering with the machinery of death is just what some states seem to be doing. Thiopental is one of the three drugs used in the lethal “cocktail” administered in most executions in this country. Hospira, the last U.S.-based company to make sodium thiopental, quit making the controlled drug, creating a national shortage. States began scrambling to keep their death chambers well-stocked. When California borrowed a similar drug from Arizona, California Undersecretary of Corrections and Rehabilitation Scott Kernan wrote in an email, “You guys in AZ are life savers ...”
Georgia, it turns out, seems to have illegally imported its supply from a dubious, London-based company called Dream Pharma Ltd., run by a husband and wife out of a rented space in the back of a driving school. Georgia is not currently licensed by the Drug Enforcement Administration to import controlled substances, so the DEA recently confiscated the state’s thiopental supply. Pending an investigation, Georgia will not have this key ingredient and will not be able to execute Davis or any other death row inmate.
On the same day that the Supreme Court denied Davis’ appeal, Amnesty International issued its annual report on the death penalty. The United States remains among the world’s leading executioners, along with China, Iran, Saudi Arabia, Yemen and North Korea.
In addition to leading the fight for her brother, Martina Correia has been fighting for her own life. The day of the court decision was the 10th anniversary of her ongoing battle against breast cancer. Her face adorns the mobile mammography van that helps save the lives of poor women in Savannah. The National Breast Cancer Coalition named her and former House Speaker Nancy Pelosi “Women Who Get It Right.” Correia, with customary humility, feels she won’t have earned the title until her brother’s life is saved as well.
Denis Moynihan contributed research to this column.
Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 900 stations in North America. She is the author of “Breaking the Sound Barrier,” recently released in paperback and now a New York Times best-seller.
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