Sunday, May 22, 2011

Clarify, improve fire investigations

The following editorial was published by the Wisconsin State Journal on May 20, 2011.

It was for good reason that a State Journal special report published over four days this week was called "Burning Questions: Arson or Accident?"

The series — the result of a months-long investigation by reporter Dee J. Hall — triggered plenty of questions as it explored in detail the case of Joseph "Joey" Awe, convicted of arson in 2007 after his bar, J.J.'s Pub in Harrisville, about 65 miles north of Madison, was destroyed by fire in September 2006.

Beyond that case in Marquette County, the series examined the process of arson investigation in Wisconsin and the nation. The stories by Hall exposed the difficulty of determining the truth in fire investigations.

Among the most significant questions raised: Why do insurance companies — which can avoid thousands or even millions of dollars in losses if a policy holder is convicted of arson — often play a lead role in investigating fires?

Certainly, expertise is needed in fire investigations. And insurance companies are happy to hire such experts to work on their behalf, often supplementing or even supplanting other third-party investigators. Such a system seems fraught with peril, and easily invokes questions about vested interest on the part of the insurers.

Awe, who is appealing his conviction in U.S. District Court in Madison, is now serving a 12-year sentence, including three years in prison. His attorney argued at trial that the fire started due to electrical problems in the 130-year-old building. Prosecutors said they found evidence the fire was intentionally set. Part of the prosecution's case relied on methods that have been discredited by other fire investigators.

Another key to the prosecution's case invoked a form of logic known as "negative corpus," meaning, essentially, that once an investigator rules out all accidental causes, the only choice left is to rule the case arson. That logic should never be used for determining the cause of a fire, according to the National Fire Protection Association.

Other parts of the Awe investigation also qualify as "burning questions," including the certainty about where the fire started.

The Awe case has brought needed scrutiny to the often misunderstood practice of arson investigation.

Attorney General J.B. Van Hollen should follow the lead of other states — Texas, for example, recently adopted new recommendations on arson investigations — to clarify and improve accepted practices in fire investigations in Wisconsin.

Friday, May 20, 2011

DAs' push to curb appeals to innocence inquiry commission is wrong

The following editorial was published by the Winston-Salem (NC) Journal on May 19, 2011.

North Carolina district attorneys are pressing a wrong idea, that of not allowing inmates who have pleaded guilty to take their cases to the North Carolina Innocence Inquiry Commission. The state legislature should not vote this measure into law.

Prosecutors, just like the rest of us, would like to think that those who plead guilty do so because they are in fact guilty. But the reality is that defendants sometimes plead guilty to crimes they didn't commit out of fear of losing at trial and getting a longer prison sentence than they'd get with a guilty plea offered by prosecutors. Defense attorneys sometimes advise their clients to do so. They may think that's the best they can do for their clients. And to put it bluntly, a relatively few defense attorneys, usually ones handling court-appointed cases, make such deals for their clients because they are incompetent or lazy.

Nationally, almost 25 percent of defendants later exonerated by DNA evidence initially pleaded guilty or offered police incriminating statements or a confession, according to the Innocence Project in New York, the Journal's Michael Hewlett reported recently. One of those defendants was Keith Brown, who pleaded guilty to second-degree rape and sex offense in Wilson and spent four years in prison before DNA tests freed him in 1997 and implicated a Florida inmate.

Those who plead guilty, of course, can always appeal their cases to our state's high courts, and they'll always have that right.* They should also retain the right to take their cases to the innocence inquiry commission, which was created a few years ago to address wrongful convictions. The commission chooses to hear only a few cases each year, ones in which defendants and their lawyers compile strong evidence of innocence. After a case, the commission decides whether a convict should be exonerated or the conviction should stand.

Many of us don't like to acknowledge that we might have made mistakes, and prosecutors are no different. But they, like everyone else, err. Most of the time, the mistakes are honest ones, and are often made by police detectives. In some chilling cases, police and prosecutors have knowingly withheld or skewed evidence.

Whatever the reason, such mistakes must be corrected. This is not just about innocent people going to prison. It's also about guilty ones remaining free, threatening us all.

In the interest of ensuring justice in that regard, those who plead guilty must retain their right to take their cases to the innocence inquiry commission.

*North Carolina is an exception in allowing people who plead guilty or no contest to file appeals. Most states BAR appeals by those who plead guilty or no contest.

Sunday, May 15, 2011

Making justice just

The following editorial was published by the Houston Chronicle on May 14, 2011.

In every wrongful conviction, something went wrong. We need to know what.

In airplane flights and in criminal convictions, close isn't good enough. At the end of a thousand-mile jet flight, hitting the ground only a mile from the runway counts as a disaster. And we treat it like one: The NTSB investigates to find the cause, and uses that information to prevent similar crashes in the future.

Unfortunately, we're not so vigilant about wrongful convictions — even though DNA evidence shows that too often, Texas has imprisoned men who only resembled the actual perpetrators, or who were unfortunately close to the wrong place at the wrong time. Texas, with more than 40 such exonerations, counts more of these overturned convictions than any other state. And as more evidence is tested, the number continues to rise.

Each of those wrongful convictions was a disaster. The wrongly convicted lost all semblance of freedom and normal life, while the real perpetrator remained at large, free to commit other rapes, robberies or murders. Taxpayers footed the bill for both the unfair prison sentence and any later restitution. And with each miscarriage of justice, our collective faith in the judicial system eroded.

Right now, though, Texas doesn't systematically investigate those disasters or make sure that the underlying mistakes never occur in the future. We don't systematically address systemic problems - for instance, with the procedures that police use to do lineups or test evidence.

A pair of similar bills in the Texas Legislature - SB 1835 by Rodney Ellis, D-Houston; and HB 115 by Ruth McClendon, D-San Antonio - would change that. Those bills would establish a state innocence commission to probe wrongful convictions the same way that the NTSB probes crashes.

The commission would be named after Timothy Cole, a Texas Tech student who, after being wrongly convicted of rape, died in prison. In Cole's case, the problem lay in faulty eyewitness testimony - once the gold standard of proof, but now understood to be far less reliable than once believed. Because victims have an uncanny ability to pick up on investigators' subtle, unspoken cues, it's important that such cues be minimized - no fair if one photo is color, but all the others black-and-white - and that lineups be double-blind, administered by officers who don't know which person investigators actually suspect.

Changes to lineup and questioning procedures, and similar troubleshooting improvements, are often simple and cheap - especially when compared to the cost of a single wrongful conviction. Yes, we believe that wrongful convictions are relatively rare in Texas - but so are airplane crashes. Our justice system deserves similar vigilance.

A single mistake is horrifying. But never uncovering the mistake, and continuing to repeat it, is far worse.

Justice demands revisiting any wrongful convictions

The following editorial was published by the Asheville (NC) Citizen-Times on May 13, 2011.

The case of Kenny Kagonyera and Robert Wilcoxson, sentenced in the September 2000 murder of Walter Rodney Bowman, is detailed in a story from Citizen-Times reporters Clarke Morrison and Jon Ostendorff in today's paper.

It's well worth reading.

And worth reacting to.

The two men are at the center of N.C. Innocence Inquiry Commission investigation. The commission ruled in April that there is enough evidence that they might have been wrongly convicted for the panel to grant a hearing before a three-judge panel in Buncombe County.

The commission was established in 2006 after exposes of a number of cases where evidence that potentially would have cleared suspects was apparently withheld.

To date, it has received requests for reviews of more than 800 cases. Only four have made it to the final review process. Only one person, Greg Taylor, who served 17 years for a murder he didn't commit, has been exonerated.

Under commission guidelines, those professing their innocence must bear the burden of proof.

In the case of Kagonyera and Wilcoxson, there are indications that proof might be abundant. A review of video depositions, interviews and documents indicates misstep after misstep and that DNA evidence that might have cleared the men never made it to defense attorneys.

And as recently reported, a critical segment of a security video that could have had the potential to clear the men was taped over with an episode of the soap opera “The Guiding Light.”

There's also the little matter of another man confessing to the crime.

In 2003, Robert Earle “Tricky” Rutherfordwas serving time in prison when he contacted Special Agent Barnabas Whiteis. During two days of telephone interviews, Rutherford told Whiteis he, Bradford F. Summey and Lacy “J.J.” Pickens were those involved in the murder. He said the trio wanted to rob Bowman's son of more than $100,000 in cash and marijuana. Summey is currently serving time in state prison. Pickens was killed by an Asheville police officer while trying to elude arrest in 2006.

Saturday, May 14, 2011

The gutting of habeas for state defendants

The following editorial by John Blume, Sheri Johnson and Keir Weyble was published in the May 16, 2011 edition of The National Law Journal.

Fifteen years ago last month, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which made substantial changes to federal habeas corpus law. Despite his assurance that "[f]ederal courts will interpret these provisions to preserve independent review of federal legal claims," we have witnessed the evisceration of habeas in the intervening years, making justice substantially more difficult to obtain for those wrongfully convicted in state courts. Unfortunately, we are now hearing calls for more radical restrictions of habeas in a wrong-headed bid to address budget concerns.

Habeas corpus, expressly guaranteed by our Constitution, serves the criminal justice system as a final check to ensure justice has truly been served. Literally translated as "that you have the body," a habeas corpus challenge enables an individual held in the government's custody to challenge the legality of the detention.

The AEDPA's provisions have stymied federal courts by placing overly restrictive limits on a person's ability to have the merits of his or her case heard. Petitioners are barred by time limits that run too quickly, are overly complex and can be difficult to calculate, even for seasoned attorneys. Even more damning, the law prohibits federal courts from remedying miscarriages of justice; they are powerless to correct many of the state courts' misinterpretations of U.S. constitutional or federal law.

The net result is that the AEDPA has effectively closed federal courtrooms to prisoners with legitimate claims. This closing is all the more troubling given the failure of states to provide adequate counsel and meaningful post-conviction review in their own systems. Many states do not appoint counsel for post-conviction review, no matter how serious the prisoner's allegations or how incapable he or she is of presenting these complex and technical claims. Other states provide wholly inadequate compensation to counsel, resulting in the appointment of lawyers with little experience or incentive to commit the time necessary to fully develop their client's case. These and other hurdles make clear that the wrongfully convicted can often only find justice through federal habeas.

Despite the wrongfully convicted who are languishing in prison because of the AEDPA's failures, there are those who would use the current budget debate to call for further restrictions on habeas petitions. Under these proposals, habeas would be available only in capital cases and those cases in which new evidence of innocence has been found. These are misguided and costly proposals. Habeas is absolutely essential to correcting wrongful convictions, and with no alternatives, habeas filers who today would make constitutional claims would instead have to make innocence claims, which could result in far more lengthy, fact-intensive litigation.

As we reflect on the anniversary of the AEDPA and consider the injustices it has wrought, there are reforms that state and federal lawmakers could adopt to effectively reduce the need for habeas review and increase the likelihood that meritorious habeas petitions receive a full and fair hearing. First and foremost, providing effective, adequately resourced counsel for indigent defendants in the trial and appellate phases is the best chance the criminal justice system has of getting it right the first time. Passionate attorneys with the resources to investigate their clients' cases will be able to address potential problems that arise during trial. Since many habeas claims are related to ineffective assistance of counsel, this is a critical reform. Prisoners should also be appointed competent counsel for post-conviction review. Evidence shows that when petitioners are given counsel to guide them through the labyrinth of post-conviction review — as they are in capital cases — win rates go up.

Although adequate counsel will significantly reduce the need for federal review, errors will still occur in state proceedings. Congress should allow federal courts to perform robust, substantive review of habeas petitions, with the authority to correct state court holdings that erroneously apply U.S. constitutional and federal law. Beyond these proposals, there are numerous other reforms Congress can adopt to improve habeas.

Post-conviction review in the federal courts may cost some money, but certainly for the wrongfully convicted — indeed for all Americans wary of an overreaching government — the constitutional right to challenge one's detention is priceless. Congress must reform the AEDPA to restore this right to the hallowed position our founding fathers intended.

John Blume, Sheri Johnson and Keir Weyble are professors at Cornell Law School.

Monday, May 02, 2011

At Least Investigate Other Suspect In Lapointe Case

The following editorial was published by the Hartford (Connecticut) Courant on April 19, 2011.

Lapointe Case With DNA findings, state should revisit an earlier suspect

If the term "reasonable doubt" means anything, Richard Lapointe should get a new trial. The meek, uncoordinated, mentally handicapped Manchester man was convicted of a violent crime he may not even have been able to commit, based on confessions of highly dubious merit.

But his efforts to have his case retried suffered another setback Friday when Superior Court Judge John J. Nazzaro rejected arguments that prosecutors had withheld important evidence, that Lapointe's trial and appellate lawyers were incompetent and that new evidence proved Mr. Lapointe was innocent.

It can't end here. The Lapointe case has seriously shaken confidence in the state's criminal justice system. Officials should take a step to restore that trust, and that is to run tests on the other major suspect in the case.

Coerced Confession?

Mr. Lapointe was convicted in 1992 of the brutal rape and murder of his wife's grandmother, 88-year-old Bernice Martin, in 1987. He wasn't arrested until 1989; police were first interested in another suspect, a grisly career criminal named Frederick Rodney Merrill. But Merrill was eventually dropped as a suspect, at least in part because his blood type didn't match a blood and a semen stain at the scene.

Mr. Lapointe, a dishwasher with no history of violent behavior, had been asking Manchester police officers about the case, and eventually drew their suspicion. On the Fourth of July in 1989, the police asked Mr. Lapointe to come down to headquarters and kept him there for more than nine hours. He didn't have a lawyer and the session was not electronically recorded. Over the course of the evening Mr. Lapointe gave three confessions that were either nonsensical or didn't jibe in major detail — how Mrs. Martin was dressed, how she was sexually assaulted, how she was strangled — with how experts later said the crime was actually committed.

Yet jury members said after the 1992 trial that it was the confessions that convinced them of Mr. Lapointe's guilt. Since 1992, much has been learned about false or induced confessions; they happen with alarming frequency. Mr. Lapointe, alone and tired, said he told police what they wanted to hear so he could go to the bathroom and go home.

Tantalizing Evidence

Whoever killed Mrs. Martin was physically strong. He violently assaulted, tied up, raped and stabbed a woman who was short and weighed at least 160 pounds. Mr. Lapointe can barely tie his shoes, and has trouble lifting heavy objects. He has to keep checking and adjusting a shunt tube that extends from his skull through his neck and into his stomach that drains fluid from his cranial cavity, a result of his mental condition, called Dandy-Walker syndrome. But if he didn't commit the crime, who did?

There is tantalizing evidence that Manchester police had the right man the first time.

A Manchester woman testified she saw a man much taller than Mr. Lapointe — about Mr. Merrill's size and build — running madly from the housing complex where Mr. Martin lived at about the time of the crime. Mr. Merrill was seen in the neighborhood that weekend, and three days later committed an eerily similar crime, a violent sexual assault on a woman in her home in South Windsor, just a few miles away.

In the most recent appeal, lawyers for Mr. Lapointe presented DNA evidence that a pubic hair found in Mrs. Martin's bedroom belonged neither to Mrs. Martin nor Mr. Lapointe, and that a pair of gloves found at the scene could not be tied by DNA to Mr. Lapointe. Although Judge Nazzaro didn't find this evidence strong enough to grant Mr. Lapointe a new trial, for a number of reasons, he did allow that the pubic hair "may have come from the perpetrator."

Well, let's at least find out if the hair and other items found in the apartment are a DNA match with Mr. Merrill. Such action would not be unprecedented. In recent years state's attorneys have voluntarily reanalyzed evidence in at least three cases in which convictions were reversed. The questions surrounding Mr. Lapointe's case argue for a similar review.

Sunday, May 01, 2011

Jeff Gerritt: Prosecutors must fess up

The following opinion by Jeff Gerritt was published by the Detroit Free Press on April 28, 2011.

The fate of Karl Vinson, wrongfully convicted of rape in 1986, now rests with the Michigan Court of Appeals, which needs to grant him a new trial. But it’s troubling that Vinson had to go there to get justice. Scientific evidence shows Vinson, 56, a former Detroiter who has spent 25 years in prison, is almost certainly innocent of the 1986 rape of which he was convicted. At least there's enough evidence to warrant a new trial. But Wayne County Circuit Judge Vera Massey Jones failed to grant him one last month and the prosecutor’s office also opposed it.

Vinson’s case shows the sometimes unreasoning resistance of law enforcement, and even judges, to acknowledge mistakes and right wrongs. When they don’t, an enormous injustice weighs on the wrongfully convicted. And something else happens, too: the person who did the crime remains free. "The reaction by authorities is to preserve a conviction at all costs,’’ David Moran, co-director of the Innocence Clinic at the University of Michigan, told me. “Besides the injustice to Vinson, there’s a rapist who might still be out there and no one seems to give a damn.”

Vinson was convicted of raping a 9-year-old Detroit girl, due largely to a blown forensic test; recent tests all but exonerate him. Still, in court documents opposing a new trial, an assistant Wayne County prosecutor said science does not trump the testimony of individuals. It’s a dangerously wack idea. If it were taken literally, none of the nearly 270 innocent people freed by DNA evidence would have been exonerated. Mistaken eyewitness testimony accounts for nearly 80% of those wrongful convictions. Witnesses make honest mistakes -- and occasionally lie.

In Vinson’s case, an intruder crawled though a bedroom window and raped the girl in her bed. Bed sheet tests then revealed semen and Type O blood antigens, but Vinson has AB blood. Because tests mistakenly indicated Vinson is a nonsecretor — one of a small group of people whose blood antigens don’t show up in saliva, semen and other bodily fluids — police said they couldn’t rule Vinson out as a suspect.

In 2009, Vinson got new tests showing he is a secretor: If he were guilty, his AB blood antigens would have showed up in the semen stain. Still, Jones refused last month to grant a new trial, proposing the ridiculous idea that the fresh semen stain on the girl’s sheets — probably only a few hours old — might have come from sex involving the girl’s parents, even though the prosecutor said at trial that it had come from the rapist. Does anyone believe that the mother called the police and then had sex on the same bed her daughter had just been raped on?

The Wayne County prosecutor’s office appears to almost reflexively oppose requests for new trials, even when scientific evidence shows it’s warranted. It's not tough on crime to keep innocent people locked up and enable the guilty to remain free. It just undermines the integrity of an already shaky justice system.