Wednesday, September 28, 2011

Wisconsin AG Van Hollen’s dereliction of his duty

The following editorial was published by the Madison Capital Times on September 28, 2011.

It is no secret that Wisconsin Attorney General J.B. Van Hollen regularly chooses to serve his political masters rather than the public interest.

In 2008, after attending a Republican National Convention session with White House political czar Karl Rove, Van Hollen returned with a grand plan to erect barriers to voting in Wisconsin. The courts rejected this last-ditch effort to avert defeat for the GOP that year.

But Van Hollen was back the next year, refusing for political reasons to defend the state’s domestic partnership registry.

Then he steered state resources into a fight against health care reform that was ginned up by the American Legislative Exchange Council and other right-wing groups.

This spring Van Hollen decided not to prosecute former Calumet County District Attorney Ken Kratz, a fellow Republican, on criminal charges of sexual assault and abuse of the public trust after Kratz reportedly sent 30 text messages trying to strike up an affair with a domestic abuse victim while he prosecuted her ex-boyfriend on a strangulation charge. Kratz was forced to resign, but he was not held to account by Van Hollen, whose campaign Kratz backed in 2006.

Around the same time, Van Hollen decided — despite the opinion of the legal counsel for the Legislative Reference Bureau, the advice of county and city prosecutors from around the state, and the assessments of leading law professors — that the state constitution and statutes did not need to be respected in the debate over whether Gov. Scott Walker’s anti-union power grab (Act 10) could be unilaterally declared to be in force. The Legislative Reference Bureau made moves to prepare for publication of the legislation, but Secretary of State Doug La Follette used his authority to put the law’s publication on hold after a judge issued a temporary restraining order barring publication until questions could be reviewed about whether the legislation had been legally enacted. Van Hollen ignored the constitution, the statutes and the judge’s order and simply issued a press release declaring: “Act 10 is now law.”

Try as Wisconsinites might, they will have a hard time finding examples of Van Hollen placing duty above party and ideology.

Even when issues of corruption arise.

That has become clear with the revelation that the attorney general refused to assist the burgeoning investigation into wrongdoing by Walker aides. According to a Milwaukee Journal Sentinel report published last week, Van Hollen “was asked months ago to assist in a growing secret investigation of former and current aides to Gov. Scott Walker, but Van Hollen’s office declined, sources familiar with the request said Tuesday.”

Why are taxpayers paying Van Hollen if he will not support law enforcement in Wisconsin?

That’s the question Scot Ross, director of One Wisconsin Now, is asking. And it’s a good one.

“J.B. Van Hollen owes the people of Wisconsin answers immediately as to why he would not investigate these potential crimes,” said Ross. “Van Hollen’s refusal to investigate Scott Walker’s ‘cronygate’ raises serious questions about his integrity and fitness to continue to serve as our state’s attorney general.”

Any serious lawman would recognize the significance of recent developments.

The official and personal computers of aides to Walker when he served as Milwaukee County executive (a position he held until this year) have been seized as part of a John Doe investigation, which reportedly is focusing on whether Walker aides ran his campaign out of a public office. It appears that the probe, which is being conducted by the Milwaukee County District Attorney’s Office, involves several aides who are now part of the governor’s administration.

Top officials in the Walker administration have abruptly stepped down or been moved out of key positions as the probe has expanded. The governor’s press secretary has been granted immunity.

This is a serious and expanding scandal.

So why has Van Hollen refused to help?

Not because he does not assist John Doe probes in Milwaukee County. He has done so in the past.

And not because the Department of Justice was unneeded. It now appears that the FBI was called in at least in part to provide the sort of technical assistance that Van Hollen refused to deliver.

“It’s now clear Van Hollen only investigates cases that further his partisan agenda,” said Ross. “But when his political allies like Walker are in trouble, he sits on his hands.”

That’s a harsh assessment.

We once held out hope that Van Hollen would maintain Wisconsin’s tradition of independent and ethical law enforcement by attorneys general who place principle above party. But his record of extreme partisanship suggests that the criticisms are credible.

They also raise a core question: If it is not politics, then what is the explanation for why Wisconsin’s top law enforcement officer is refusing to help prosecutors enforce the law?

Monday, September 26, 2011

How we can save the next Troy Davis: Claims of innocence must be heard in death row cases

The following opinion by Katie Chamblee and Katie Mesner-Hage was published by the New York Daily News on September 24, 2011.

On Wednesday night, Georgia executed Troy Davis, despite much doubt about his guilt. Though many find it difficult to understand how our legal system could have failed to vindicate his claims of innocence, Davis did not simply slip through the cracks. Instead, his case is symptomatic of a profound flaw in our system: Our laws intentionally foreclose nearly all means of reversing a death sentence on claims of innocence, even when the testimony that led to the original conviction is recanted.

That's largely because our laws value finality over accuracy, even when a life is at stake. Retrying cases is hard, the Supreme Court has said, and overturning convictions is disruptive. The court has made the threshold for demonstrating actual innocence, in its own words, "extraordinarily high."

In fact, the court is not even in agreement that claims of innocence should be heard at all, so long as the trial that produced the wrongful conviction was technically fair. As Justice Antonin Scalia wrote in his 2009 dissent when the Supreme Court held that a federal court should hear Davis' claims of innocence, the high court "has never held that the Constitution forbids the execution of a convicted defendant" who is later able to convince a court that he is actually innocent.

Even if a defendant succeeds in getting into court, proving innocence requires far more than what is required for a "not guilty" verdict at trial. The Savannah judge who eventually heard the new evidence in Davis' case said that Davis would have to show "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." So while a prosecutor must prove the defendant's guilt beyond a reasonable doubt to all 12 jurors to get a conviction at trial, to overturn his death sentence, Davis would have to show that no juror would have convicted him. In other words, evidence insufficient for a conviction can uphold a death sentence.

Davis' case has received an incredible amount of national attention, and the growing recognition that innocent people are often convicted in the first place is encouraging. Texas, for one, has recently implemented legislation that provides greater access to post-conviction DNA testing.

This is a step in the right direction, but it does nothing for defendants convicted on the basis of coerced confessions or mistaken (if not outright false) testimony. There must be a way for defendants such as these with legitimate claims of innocence to have their claims heard.

But even if a better vehicle for hearing innocence claims can be devised, the death penalty would remain a deeply flawed punishment. In a landmark 1983 study, legal scholar David Baldus found that the best predictor of whether a defendant will receive the death penalty is not the severity of the crime, but the victim's race. Baldus discovered that defendants accused of killing white victims, as Davis was, were about four times more likely to get the death penalty than defendants accused of killing black victims.

The Supreme Court has long tried in vain to correct the arbitrariness and racism of capital punishment by, as Justice Harry Blackmun put it, "tinker[ing] with the machinery of death." But the only way to put an end to the death penalty's brutal flaws is to end the death penalty itself.

Ending the death penalty for good will go far to restore the integrity of our justice system and to ensure that it serves to protect, and not victimize, the most vulnerable among us.

Chamblee and Mesner-Hage are students at Yale Law School and members of its Capital Assistance Project.

Sunday, September 18, 2011

Georgia has to get it right

The following is an editorial published by the Buffalo News on September 17, 2011.

Officials should reopen murder case or risk executing an innocent man

We don’t know if Troy Davis killed a police officer in Savannah, Ga. He was convicted of the crime, though, and has served two decades on Georgia’s death row. He is scheduled to be executed next week.

There’s just one problem, and it’s a huge one. Davis was convicted on the basis of eyewitness identification, which is notoriously unreliable. According to the Innocence Project, which challenges questionable convictions, seven of the nine eyewitnesses who testified at Davis’ trial have since recanted and new evidence points to another person as the real perpetrator. Yet Georgia is apparently ready to plunge ahead with the execution.

Western New Yorkers are familiar with wrongful conviction. Two defendants in high-profile cases were exonerated after having spent years in prison for crimes they did not commit. Anthony Capozzi served 21 years in prison for his wrongful conviction as the Delaware Park rapist, and Lynn DeJac spent nearly 14 years behind bars after being wrongfully convicted of murdering her daughter.

In fact, the Innocence Project counts 273 men and women it has helped to exonerate. These people have been cleared of responsibility not based on some legal technicality, but because they were actually innocent. Wrongful convictions occur for many reasons, but generally they can be traced to flawed investigative and courtroom procedures. Leading them are the problems associated with eyewitness identification.

The victims of the Delaware Park rapist identified Capozzi as their attacker. They didn’t do it on purpose; they thought he was the one. It was a mistake for which Capozzi paid dearly. So did the future victims of the real rapist, Altemio Sanchez, a sociopath who soon morphed into a serial killer.

But what if Capozzi had been executed?What if DeJac had been executed?How do you take that back? The state of Texas has already been shown to have put an innocent man to death. Texas doesn’t seem to care much one way or the other, and it’s not alone. Why would Georgia want to add to that list?

The Innocence Project has a reputation for thorough investigation, and it has raised significant questions about Davis’ conviction. It’s true that the case has dragged on for more than 20 years and that Davis has had previous opportunities to contest his conviction. But this is about life and death and a state’s reputation for its commitment to justice.

As we said, we don’t know if Davis killed police officer Mark MacPhail, who was only 27 when he was shot twice as he tried to help a homeless man under attack over some beer. This isn’t about protecting a cop killer, though we do oppose the death penalty. It’s about acknowledging the facts of wrongful conviction and ensuring that the right guy is being strapped to the gurney before taking steps that cannot be reversed. In this case, there appears to be enough doubt for the state of Georgia to step back.

Friday, September 16, 2011

Teaching Criminal Justice and Law in High Schools

by Marie Owens

A criminal justice and law curriculum for high school students may sound like an overly specialized course of study for young people who may not have had a chance to consider all of their career options before they even start college, but such a curriculum can actually introduce teenagers to a liberal arts education. The Urban Assembly School for Criminal Justice in Brooklyn, New York operates on this premise. The summary on the school's web site states that students learn that evidence-based thinking found from a criminal justice degree is necessary in all fields: whether writing a persuasive essay, proving a scientific hypothesis or understanding historical events.

Several school districts throughout the United States now have high schools in which the major focus of the curriculum is on criminal justice and law. There are also several such charter schools. These schools can be found in Texas, Florida, New York, New Jersey and Virginia. Students at these schools are introduced to many fields of study, including forensic science, statistics, psychology, sociology, public administration and law. Students at high schools devoted to criminal justice and law studies are also encouraged to develop critical thinking skills. These skills can help a young person in any career, even if he or she later decides not to pursue a career in law or criminal justice. Some of the schools also have a prominent character education component.

High schools that have a criminal justice and law curriculum often place an emphasis on exposing the students to hands-on or real world applications of the coursework. Field trips are organized so that the students can have conversations with medical examiners, judges and police officers. They also visit correctional institutions to help make some of the concepts they learn less abstract.

Some colleges and universities offer summer programs or seminars for high school students in criminal justice and law. They often focus on real world applications of the topics that they cover. The John Jay College of Criminal Justice provides a program in forensic science that demonstrates how biology and chemistry are used outside of academic settings. Seton Hall University offers a one-week summer program that introduces high school students to criminal justice. High schools are also affiliated with colleges through advanced placement courses in fields related to criminal justice and law.

Some of the schools that offer criminal justice programs are more vocational in nature than collegiate. They help students prepare for careers in such fields as security or the informational technology associated with crime and security. These programs may offer industry certification upon completion. Many programs are run in conjunction with nearby technical or vocational colleges.

Allowing students to study within a specific field of criminology while they are still in high school gives educational institutions an opportunity to provide a well-rounded education to students by allowing them to pursue their interests while they are still interested. Many charter schools and magnet schools across the country are founded on this principle. Programs are available for students to study the arts, media, technology and ecology.

If students who attend high schools devoted to the study of criminal justice and law do not go on to a career in these fields, society benefits because these students will be less likely to be criminal offenders. In their report to the United States Congress, prepared for the National Institute of Justice, Preventing Crime: What Works, What Doesn't, What's Promising, Lawrence W. Sherman and various other authors stated that law teachings in schools is one of the things that work, along with peer-group counseling, gang resistance education, and anti-bullying campaigns.

High school programs associated in the field of law equips young people with knowledge and skills that they can use in many fields. As The Urban Assembly School for Law and Justice in Brooklyn, New York, puts it, "law is a captivating lens for learning, and that the skills necessary for the legal profession are universal." Students who enroll in a high school devoted to criminal justice or law may think that they are embarking on a specialized field of study, but will most likely gain a holistic education along the way.

Saturday, September 03, 2011

Rick Perry set to carry out one or two more questionable executions as candidate

The following article was originally published at on 9/3/11.

By Alex Pareene

Rick Perry has executed 235 people so far as governor of Texas, so it's no surprise that he's set to kill at least one more person as a presidential candidate. Unlike the case of Cameron Todd Willingham, whose execution was carried out despite widespread doubts as to his guilt, Duane Edward Buck committed the murders he's been convicted of. But Mother Jones reports that Buck's sentence was obtained through questionable means.

Here's the problem:

Prosecutors firmly established Buck's guilt, but to secure a capital punishment conviction in Texas they needed to prove "future dangerousness"—that is, provide compelling evidence that Buck posed a serious threat to society if he were ever to walk free. They did so in part with the testimony of a psychologist, Dr. Walter Quijano, who testified that Buck's race (he's African-American) made him more likely to commit crimes in the future. (Quijano answered in the affirmative to the question of whether "the race factor, [being] black, increases the future dangerousness for various complicated reasons.")

So Buck is being executed because he's black. This is a bit problematic, constitutionally.

MoJo writes that this psychologist gave race-based testimony in six other death penalty cases, leading John Cornyn -- then the Texas attorney general -- to ask for each case to be retried. And all the cases were retried, with this one exception. And this exception is due to be executed in two weeks.

As we have seen, killing lots and lots of people is one of the things about Rick Perry that Republican voters love, so I can't imagine he'll grant clemency or even delay the sentence.

Oh there's also another probably innocent person that Texas is set to kill soon. Larry Swearingen was convicted of killing Melissa Trotter based solely on circumstantial evidence. He was jailed weeks before Trotter's body was found. According to multiple pathologists and doctors who've reexamined the evidence, Trotter was killed while Swearingen was in jail. (One court of appeals judge rejected the science-based testimony of medical examiners because it doesn't explain what the victim was doing for those weeks she was missing. That's not where I thought the burden of proof was supposed to lay, but what do I know.) This execution has been stayed, for now.

Alex Pareene writes about politics for Salon. Email him at