My Turn: Why I’m rethinking support for the death penalty

The following opinion by Tony Soltani was published in the Concord (NH) Monitor on November 17, 2013.

New Hampshire has a limited death penalty law – a strict one, with many safeguards. It applies to first-degree premeditated murders with aggravating circumstances. As a former state representative, I voted for that law more than once, although never enthusiastically.

Now I’m rethinking those votes.

We have relatively few such first-degree murders in the state. We have not used the death penalty since 1939 and have used it sparingly since the 18th century. A jury must convict and then find sufficient aggravating circumstances to justify an execution. A judge must confirm the sentence, and a mandatory appeal will follow, with several discretionary and collateral challenges. Unlike in states such as Texas, the governor has authority to commute to life imprisonment or stay an execution. The many safeguards, the narrow scope of the law and the low frequency of crimes sanctionable by death gave me some assurance. I wanted the best of both worlds: the established deterrent value of the law on the books (which applies not to crimes of passion but to those with premeditation) along with the hopes of never applying it.

I am dedicated to the cause of life. Seldom would a crime fit the law, hardly ever would a prosecutor seek it, even more seldom would a jury administer it and no governor would ever allow an execution. After all, no governor with political ambitions from either political party would want to be the first to sign a death warrant since 1939.

That was my thought process. My good friends, Democratic Rep. Jack Pratt of Walpole to my left and Republican Rep. Loren Jean of Litchfield to my right insisted that I was wrong. Years later, a few things have changed which have me questioning my votes.

First, we now have a man on death row in New Hampshire. His actions hardly evoke sympathy; nevertheless, he is human, and taking a human life in a sterile, clinical and controlled setting degrades the human family. For those of us with religious beliefs, it has the undertone of challenging our creator’s supremacy, taking what is only God’s to give and take.

Second, Project Innocence happened. Hundreds of innocent persons, some men, some women, have been proven not guilty after having been condemned to death.

Finally, the National Academy of Sciences issued a report on forensic sciences in 2009, commissioned by Congress. The findings were disturbing, to say the least.

The great reliance on “forensic sciences” has been misplaced all along. Hair and fiber, ballistics, fingerprints, bite mark analysis, blood splatter, even radar use, are troublingly closer to arts than sciences.

All that I spent days and hours learning is nothing more than junk science. I have no artistic aptitude. The only shining light in forensics is the fairly new technology of DNA, with the proviso that samples are collected properly, stored and transported properly, analyzed properly, and the statistical component is calculated properly. That composite science of biology, physics, chemistry and mathematics has set nearly every innocent free on the initiative of the Innocence Project.

I know I could never serve as executioner. My conscience is deeply troubled for allowing anyone to serve in that capacity in this sacred land in my name. The foreboding words of Pratt and Jean haunt me.

(Tony Soltani is a former Republican state representative from Epsom, NH.)

Is 'shaken baby syndrome' shaky science?

The following editorial was published by the Chicago Tribune on October 21, 2013.

Pamela Jacobazzi of suburban Bartlett has spent the last 14 years in prison for violently shaking 10-month-old Matthew Czapski to death. The 58-year-old former home day care operator is among hundreds of people nationwide convicted in recent decades on the basis of what doctors call "shaken baby syndrome." That diagnosis gained prominence in the 1980s and '90s, as publicity campaigns warned of the dangers of shaking infants.

Lawyers for Jacobazzi argued that her conviction should be set aside because jurors didn't hear evidence of other medical theories on what killed Matthew.

In September, though, DuPage County Judge Robert Kleeman rejected her bid for a new trial. He didn't rule on the validity of shaken baby syndrome. Instead, he said her trial attorneys had possessed all available medical evidence and had presented a reasonable defense.

But a question lingers here and in similar cases across the U.S.: Is shaken baby syndrome based on shaky science?

You may be surprised to hear it after so many years of warnings on this, but there's a fierce medical and legal debate over shaken baby syndrome, known as SBS. Critics argue that research doesn't show that the symptoms commonly associated with the diagnosis — bleeding and swelling in the brain and behind the eyes — can be caused by shaking alone.

"Virtually all the hallowed tenets of shaken baby syndrome have been challenged on the basis of scientific principles and have been found wanting or wrong," Dr. Jan Leestma, a former Lurie Children's Hospital of Chicago neuropathologist, wrote in his 2009 textbook, "Forensic Neuropathology."

Leestma tells us that a raft of biomechanical studies cast doubt on the idea that shaking a baby will generate enough force to seriously injure his or her brain or cause other symptoms of the diagnosis. But SBS proponents tell us that those studies are incomplete; they don't, for instance, adequately account for multiple or repeated shakings over time.

Let's stop right here to make one thing clear: Violently shaking a baby can lead to serious injuries, particularly if there is neck whiplash or the baby's head strikes a wall or floor. No one, including those skeptical of the science underlying this diagnosis, suggests that such conduct is anything but dangerous and wrong.

That said, it's also clear that SBS is among the trickiest diagnoses for doctors to reach. Babies can't tell doctors what happened. Some illnesses and simple accidents can mimic the symptoms. In some cases, there are no outward signs of abuse. Often there are no witnesses to suspected abuse. What's more, injured infants may be lucid after whatever incident caused the injury. On occasion, infants may even be lucid for hours before they collapse and die. That expands the pool of potential causes and, if authorities suspect abuse, of potential perpetrators.

Jacobazzi is due to be paroled in 2015. But many other people are in jail across the country, convicted of shaking infants. Are some of them innocent? This complex but out-of-the-limelight debate will be hashed out in courtrooms and research labs. That's healthy for medical science, and for our justice system.

Decades ago, many doctors believed that if a child suffered from three symptoms — subdural (brain) and retinal bleeding and brain swelling absent a fracture or bruise to indicate an accident or fall — then the injuries likely happened through vigorous shaking.

In 2009, though, the American Academy of Pediatrics expanded its definition of shaken baby syndrome to stress that while shaking can cause injuries, other factors can be just as important, including the blunt impact of a head against a solid surface like a floor or wall. Researchers also stress that accidents, a child's pre-existing medical condition, medical history and genetic disorders can cause injuries that mimic the effects of abuse. The academy, based in suburban Elk Grove Village, suggested a broader term, "abusive head trauma," to describe the array of injuries abuse can cause.

Dr. Cindy Christian of the academy's committee on child abuse and neglect tells us the medical consensus remains strong around the science of SBS. "Some babies are injured by shaking," says Christian, who co-wrote the 2009 report. "Some by blunt impact. Some by a combination of factors." That report "doesn't say shaking is benign. It doesn't say shaking doesn't harm children. And it doesn't say there is no such thing as SBS.'

Expect to hear more about this. Last year the Innocence Network, a group of organizations that provide pro bono legal help for people who claim to be wrongly convicted, brought on a lawyer to pursue claims of innocence in shaken baby cases nationwide. Doctors will continue to refine the SBS diagnosis, evaluating new research and clinical experience.

The stakes here are high: A mistake in judgment can leave an abusive person in charge of a baby. Or it can land an innocent person behind bars.

That should leave us all shaken.

The hard road to innocence for Elizabeth, NJ man

The following opinion by Julie O'Connor was published by the Star Ledger on October 13, 2013.

Gerard Richardson has spent nearly two decades telling everyone that he is innocent. Almost nobody believed him.

But that changed in July, when a DNA test found the Elizabeth man could not have left a vicious bite mark on the lower back of a 19-year-old woman who was murdered and dumped in a ditch in 1994.

Now the Innocence Project wants him freed. But the trial prosecutor still insists the bite mark is Richardson’s, he is the killer and his conviction is “good and valid.” Timothy Van Hise, a 31-year veteran with the Somerset County Prosecutor’s Office, has agreed to file his response by Oct. 23.

Which leaves the state of New Jersey with two problems. First, an innocent man may be stuck behind bars, thanks to an overzealous prosecutor clinging to faulty forensic science. And second, if Richardson is innocent, someone else is guilty.

Yet believe it or not, the strict rules for private laboratories prevent authorities from running this new bite mark profile through their DNA database to name the real culprit. A man who left his “calling card” in a dead woman’s back 19 years ago may still be roaming free.

THE BITE MARK

Richardson looked like he was playing it cool last month when he showed up to court in dark sunglasses. But those are prescription — fill-ins as he waits for his replacement glasses, because his eyesight has deteriorated over his many years in prison.

It was tough to gauge his reaction when he learned that the prosecutor had no intention of halting his 30-year sentence, despite the new DNA evidence. But his brother said the entire family felt “blindsided.” Van Hise didn’t dispute the science of the DNA test. He simply said, “The bite mark is Richardson’s, so determined the jury.”

“How ridiculous does that sound?” Kevin Richardson said last week. “This is just another example of abuse of his discretion at the expense of my brother’s liberty.”

After the hearing, Van Hise suggested an entirely new scenario: that the victim’s bite mark could have been made by Richardson, and the DNA left by a second assailant. This requires some mental gymnastics.

“So there’s a second phantom perpetrator who drooled on her in the exact same place where Gerard Richardson bit her, without leaving any of his saliva?” said his Innocence Project attorney, Vanessa Potkin. “It doesn’t hold water.”

Van Hise has said this case is more complicated than it appears, but he won’t elaborate. What’s obvious is the conflict of interest here. It’s rare for the same prosecutor who won a conviction to be handling a request to overturn it, if only because that person has usually moved on. Yet Van Hise’s boss, Somerset Prosecutor Geoffrey Soriano — a 2010 appointee — has not taken over the case and refuses to comment on it.

So Richardson remains in prison, even though a DNA test says the bite mark that was the crux of his conviction wasn’t actually his.

There was no DNA testing involved in his trial, which came down to a battle of forensic dentists. The state’s expert testified that no one but Richardson could have bitten the victim. And the expert for the defense said that Richardson was excluded as a match. They couldn’t even settle on which side of the bite mark was up or down.

But both sides did agree on one thing only: that whoever left this bite mark killed Monica Reyes.

DUBIOUS SCIENCE

The victim was 5 feet tall, a skeletal 83 pounds, and hooked on heroin. She sometimes posed as a prostitute to help her brother and boyfriend, also addicts, rob other men for drug money. There were plenty of men with reason to kill her.

The night she vanished, Reyes told her boyfriend she was going to meet a man with money. Five days later, on Feb. 25, 1994, her body was found in Bernards Township. She’d been beaten, stabbed, strangled and possibly sexually assaulted. She was left with a 100-pound rock on her head and a fresh bite mark on her back.

The only teeth submitted for a potential match were Richardson’s. Reyes had owed him $90 for drugs, and Van Hise argued he had killed her to send a warning to the neighborhood. If so, it was never clear why he’d chosen to dump her body more than 30 miles away.

Forensic odontology is well-established for the identification of human remains, when an actual jaw is compared with dental X-rays, said Robert Shaler, who supervised the DNA testing to identify the victims of 9/11. “It’s when it’s transferred to human skin that the problems occur,” he said.

When the skin is bitten, it contracts and then expands, according to Shaler. Matching those stretched tooth marks to a particular set of human jaws is prone to error, and is no longer considered a science. In 2009, the National Academy of Sciences found that bite-mark evidence has never been scientifically validated or demonstrated to be reliable.

Experts routinely come to opposite conclusions, as happened in Richardson’s case. Since 2000, at least 24 people have been found innocent who were wrongly matched to bite marks, including a Massachusetts man implicated by the same forensic dentist who testified against Richardson, his lawyer said.

That man was exonerated after DNA testing found he couldn’t have made the bite mark in question. Yet in Richardson’s case, the prosecutor called the idea that bite-mark evidence is unreliable “nonsense.”

BURIED IN BUREAUCRACY

All that’s left of the bite mark now is the DNA profile of a mystery assailant — whom authorities couldn’t identify if they wanted to. Even though it might take little more than a 10-minute computer search.

This is because the FBI has enacted burdensome rules that make it hard for even reliable test results from private labs to be run through its DNA databank. And New Jersey still hasn’t developed a good workaround.

Richardson’s lawyer chose a private lab in California with a strong record of getting results from old, degraded evidence. To get the best profile, its experts used up what was left of the bite mark swab, so it can’t be retested.

That shouldn’t matter, because New Jersey’s forensic experts have verified the testing as accurate. Yet they still can’t search this genetic footprint through the FBI’s vast DNA clearinghouse, which contains more than 10 million profiles, because of state and federal bureaucracy.

FBI rules require state experts to preapprove any private lab used by a defense attorney, which often means flying across the country to inspect it. As a matter of policy, New Jersey’s forensics lab, run by State Police, won’t do that — not even if a defendant foots the bill. If the lab agreed to do it for one person, it might have to do it for everybody. “We don’t have the personnel to commit to that,” said Joseph Petersack, its chief forensic scientist.

New Jersey can sometimes rely on another state’s data about a private lab without doing its own site visit. But in Richardson’s case, his evidence arrived at the California lab right after its latest site visit had expired. So New Jersey’s lab couldn’t adopt the data from someone else’s site visit, and won’t send an employee.

The end result is that we now have the profile of a violent murderer who, given high recidivism rates in the United States, has a good chance of being in this DNA bank. But authorities can’t legally search it — even though the whole purpose of the database, which cost taxpayers hundreds of millions of dollars, is for moments exactly like this.

OBSTRUCTION OF JUSTICE

Will the FBI make an exception in Richardson’s case, in the interest of finding the true killer? Don’t count on it.

When DNA testing exonerated a man convicted in the 1992 murder and rape of an 11-year-old girl, the FBI went to court to defend its refusal to run the new profile through its forensic library, even though it did not dispute the scientific findings. A federal judge eventually ordered the agency to search the DNA databank.

Such lawsuits are rare. The bureaucratic rules generally allow prosecutors to drag their feet on exonerations, and force some inmates to undergo costly retrials.

The FBI argues its regulations are designed to assure the highest quality standards. But forensic experts such as Edward Blake, whose private lab did the DNA testing in that 1992 case and in Richardson’s, say those regulations are irrational and amount to an obstruction of justice.

You don’t have to look at a lab to evaluate its science, he points out. A peer reviewer just examines the underlying data used to prepare the report. And the quality of his work isn’t in question.

New Jersey’s Legislature has proposed a sensible law to circumvent this problem, though it comes too late for Richardson. The statute would empower judges to order state forensic experts to go through the preapproval process for a private lab, if a defendant requests it and a judge finds it appropriate. The court could compel either the defendant or the state to incur the expenses.

After all, the public’s safety is at stake here. And while Richardson’s lawyer says she has no doubt he’ll be exonerated, even without identifying the true perpetrator, it would save them legal hurdles.

“We would have much less of a fight from the Prosecutor’s Office if we could identify who that person is,” Potkin said, “and bring justice for a victim who was brutally murdered.”

Julie O’Connor is a member of The Star-Ledger editorial board: (973) 392-5839 or joconnor@starledger.com.

King: Watchdog system can target misconduct

The following opinion by Joyce King was published in the Houston Chronicle on October 12, 2013.

I've never met Michael Morton, but my heart is overjoyed for him. Morton had a lot in common with my fiancé.

Like James Woodard, Morton spent more than two decades in a Texas prison for a murder he did not commit. The prosecutor in Morton's 1987 trial relentlessly pursued justice and won the wrongful conviction. But how he did it may finally send jurists a stern warning and result in even more vindication for Morton and his supporters.

Last month, when former Williamson County District Attorney Ken Anderson stepped down from his position as a state district judge, I felt a lump in my throat. Anderson, who has remained adamant that there was no wrongdoing in the conviction that shattered Morton's life as a free man, issued a one-sentence resignation notice to Gov. Rick Perry. But an independent inquiry has determined that Anderson may have broken the law by withholding crucial evidence in Morton's case.

While it is rare that prosecutors are punished harshly, there is no shortage of prosecutorial misconduct examples that we can learn from.

According to a 2003 study by the Center for Public Integrity, in more than 2,000 cases over a four-decade period, prosecutorial misconduct resulted in dismissals, sentence reductions and reversals. Yet prosecutors only faced a range of disciplinary action in 44 of those cases.

In a more recent study by the Northern California Innocence Project, researchers concluded that while state courts found "explicit" evidence of prosecutorial misconduct in more than 700 cases between 1997 and 2009, only 159 were deemed "harmful." Even fewer were punished for misconduct.

Depending on the varying definitions of "harmful," people's lives are permanently altered because of careless mistakes and blatant cover-ups.

One solution that could make a dramatic difference would be a watchdog or whistle-blower system. Those in the best position to report prosecutorial misconduct are judges, defense attorneys and other working prosecutors whose voices and reputations carry weight as "officers of the court." This would also help prevent wrongful convictions.

In James' case, only days before his May 1981 trial started, prosecutors did not divulge pertinent information they had been given by Dallas investigators. The woman that James loved last had been seen at a convenience store getting into a car with three men. James Woodard was not one of them.

Morton spent 25 years proclaiming his innocence after being sentenced for the murder of his wife. My darling James refused parole 12 times because he wanted his good name more than he craved a guilty freedom. But James and Morton also have something else in common.

Both Texas exonerees were featured on the CBS-TV news show "60 Minutes." During an interview with Scott Pelley, James inspired ordinary people around the world when he said, "A man has to stand for something."

I wish James were standing here with me now to see what is happening with Anderson as a result of the Morton case. This bittersweet moment gives me pause during a time that has proven quite challenging. October is James' birth month. But it will also mean marking the one-year anniversary of his death.

James Woodard died of a seizure last year in Dallas County Jail after being arrested at the scene of a traffic accident.

The Anderson inquiry and subsequent resignation is a wake-up call for rogue prosecutors and jurists who believe they can cut corners and play with a person's life. Texas, the law-and-order execution capital of the world, not only leads the nation in DNA exonerations, Dallas has had more than any single jurisdiction in the nation: 24 men and counting since 2001.

Thanks to the Michael Morton Act, signed into law earlier this year in Texas, it may be a little easier to penalize prosecutorial misconduct.

Testifying at the court of inquiry in Austin, Anderson blamed the "screwed-up" system of justice for Morton's wrongful conviction. Morton was in the courtroom. He is among a contingent of 49 innocent men exonerated in Texas by DNA evidence. They fully understand how rare it is that a district attorney - in any state and in modern legal times - is punished for wrongdoing.

Anderson faces 10 years and he could lose his law license. As the truth slowly but surely comes out, I reflect on the one thing that James will never have in common with Michael Morton: He did not live to marry his fiancée.

I am very happy for Morton and his new wife.

 Joyce King is the author of "Hate Crime: The Story of a Dragging in Jasper, Texas." She was the first non-lawyer to serve on the board of directors for the Innocence Project of Texas.

Torture on Death Row

The following report by Vincent Warren, Executive Director, Center for Constitutional Rights, was published on October 9, 2013 by the Huffington Post.

It is inhumane, fallible, expensive, and an ineffective crime deterrent. It is also no secret that the death penalty in the United States is carried out in a racially discriminatory manner. African Americans and Latinos make up over half the people on death row while comprising about a quarter of the U.S. population. Looking at the race of the victim, in the last 30 years, only 20 white on black murders have resulted in execution, compared with 261 black on white. You probably can't recall the last time the State of Louisiana executed a white person for a crime against an African American. That's because it last happened in 1752.

What remains largely unseen is how, beneath a misleading veneer of due process and legal protocol, thousands of death row inmates are often subject to conditions that constitute torture, sometimes for decades on end, while waiting to be executed or exonerated. These conditions, as much as the death penalty itself, constitute violations of established international human rights law as well as the constitutional right against cruel and unusual punishment.

In 1972, the Supreme Court struck down the death penalty, declaring that its application was so arbitrary as to be unconstitutional. Although many believed that this marked the end of capital punishment in the U.S., state legislatures responded by rewriting their death penalty laws in order to convince the Court that the death penalty could be made impartial and compatible with a basic concept of human dignity. In 1976, the Supreme Court ended the de facto moratorium on U.S. executions and, since then, has tried to delineate a "modern" death penalty by calling for a better appellate process and outlawing the penalty for certain offenses and categories of people, including juveniles and people with mental disabilities. Given that the standard for mental disability is non-existent, that line has been crossed many times.

But no constitutional window dressing can legitimize state-sponsored murder or humanize the system that administers it. More than three decades after the Supreme Court reversed its stance on capital punishment, conditions on death rows across the country remain nothing short of barbaric. The Court's demand for a better appellate process has mostly extended the time death row prisoners spend in these conditions -- thereby paradoxically deepening the human rights violations -- and research continues to show that race is the dominant factor in explaining who is sentenced to death in this country.

In May of this year, I traveled to Louisiana and California to document conditions of confinement on death row together with colleagues at the Center for Constitutional Rights, and Florence Bellivier, president of the World Coalition Against the Death Penalty, there representing the International Federation for Human Rights (FIDH) on the mission. California has the largest number of people on death row in the country and Louisiana is infamous for the harsh conditions prisoners suffer. Our findings are published here.

In Louisiana's notorious Angola prison, home to all men on death row in the state, those sentenced to death spend their final years locked in their cells alone for 23 hours each day. During summer, death row inmates are kept in their cells even though the heat index regularly exceeds 110 degrees. The prison does not provide them with clean ice or cool showers, but it does provide the public with tours of death row and the lethal injection table.

At night, in an effort to keep cool, the men at Angola sleep on the floor where they are exposed to fire ants. When they "misbehave," they are moved to cells in the hottest tiers. Men have lived up to 28 years on Louisiana's death row, and most spend at least a decade in these dehumanizing conditions waiting for court appeals to go through. That is their due process.

In California, where minorities make up 65 percent of death row, the wheels of justice turn so slowly that new death row inmates will spend approximately 20 years on death row, and some over 30. Others will spend decades locked inside their cells in solitary confinement for minor infractions committed years ago, without access to a telephone and without feeling the touch of a family member for the entire length of time in solitary. Their due process while on death row? Wait an average of 3-5 years before a lawyer is even appointed to appeal the sentence, then an additional 8-10 years following the conclusion of their appeal for another lawyer to be assigned to handle a state habeas petition. In the meantime, the stress and anxiety of not knowing when they will be executed or when they will even receive the assistance of a lawyer will cause severe mental anguish for long decades, and will lead some prisoners to commit suicide rather than endure the long waiting process ahead.

And that's a glimpse of what the "modern" death penalty in the U.S. looks like in two of the states that retain it. The Supreme Court tried to sanitize a brutal practice, but it is impossible to legitimize the indefensible. The only morally and legally tenable response to the death penalty is its complete abolition. Yet while we continue to work for that day, we must also work to address the human rights violations that send people, disproportionately people of color, to death row and then torture them there before the final act of killing.

Conviction Error Demands Reexamination of Death Penalty

The following opinion piece with the title “Jim Petro: An intolerable rate of wrongful convictions” was published September 11, 2013 in The Akron Beacon Journal.

Would you get on an airplane if there were a 2.3 percent chance it would crash? The equivalent of this “worse case” outcome in criminal justice is convicting an innocent person. There’s a special horror in convicting an innocent person of a death penalty crime. Well-documented research has found that our criminal justice system’s error rate in capital cases is at least 2.3 percent. This troubling record was underscored recently when senior U.S. District Judge Anita Brody overturned the conviction of James Dennis, who spent 21 years on death row. As reported by the Associated Press, the judge called the case “a grave miscarriage of justice” and said Dennis was convicted on “scant evidence at best.”

This language is similar to that of a 2003 commission report, prompting then-Governor George Ryan to place a moratorium on the Illinois death penalty. Since its reinstatement in 1977, twelve inmates had been executed and thirteen condemned to death had been released. The commission noted, “All thirteen cases were characterized by relatively little solid evidence connecting the charged defendants to the crimes.”

The Innocence Project reports that since 1992, DNA has proven 311 persons wrongfully convicted (completely innocent). Of these, 18 had been on death row. Another 16 charged with capital crimes had not been sentenced to death.

The 2.3 percent error rate for capital crimes is from research by Professor Samuel R. Gross at the University of Michigan Law School and Professor Barbara O’Brien at Michigan State University College of Law.  Gross and O’Brien examined actual exonerations among all death sentences in the United States since 1973. Of those who had been sentenced to death at least fifteen years before the end of 2004, professors Gross and O’Brien determined that 2.3 percent had been exonerated. Since there were no doubt other capital defendants in that group who had not been exonerated by the end of 2004, the exoneration rate is a conservative estimate of the rate of wrongful convictions among death sentences.

Professor Gross is editor and co-founder of the National Registry of Exonerations—launched in May 2012—a joint project of University of Michigan and Northwestern Law Schools. This searchable online database of all known exonerations in the U.S. includes wrongful convictions proven by DNA and those cases in which a person was “officially declared innocent or was relieved of all legal consequences of the conviction because evidence of innocence that was not presented at trial required reconsideration of the case.” The database is dynamic; exonerations, current or newly discovered, are added frequently. The recent number of exonerations since 1989 was 1,200 of which 105 or 8.8 percent were cases that resulted in a sentence of death. Due to the exonerations, those executions were not carried out.

When serving as Ohio Attorney General, I became aware of wrongful conviction and the power of compelling, yet unreliable evidence. For example, FBI records in thousands of cases (primarily sexual assaults) in which crime scene DNA was compared with suspect DNA (the suspect usually identified by the victim) revealed a 25-percent error rate! How then can eyewitness testimony alone determine “guilt beyond a reasonable doubt?”

If one piece of unreliable evidence can convict, several—with a dash of circumstantial evidence—make a perfect recipe for wrongful conviction. Juries and judges have been misled by such evidence.

Some believe error may be more frequent in capital cases. Crimes that shock the community put unusual pressure on officials. This may prompt cutting corners or investigative tunnel vision often recognized after wrongful conviction. Obviously, the victim cannot testify. The National Registry of Exonerations data indicates that in these cases, the primary contributor to wrongful conviction is perjury or false accusation, often one suspect’s testimony against another or a prison snitch testifying to get a better deal.

Anti-death penalty groups contend the death penalty is immoral, more expensive than a life sentence, unfairly applied, and not a deterrent. Even death penalty supporters must acknowledge that the frequency of wrongful conviction demands new policies or a moratorium.

One proposal to reduce the risk of wrongful execution is raising the standard of guilt in death-penalty cases from “beyond a reasonable doubt” to “beyond all doubt.” Another is to require more than eyewitness testimony. We must craft policies to reduce use of false confessions (often coerced), misleading forensic testimony (our system “needs overhaul” according to a 2009 National Research Council study), and unreliable snitches and informants.

The United States would not tolerate a 2.3 percent error rate in the airline industry or any other in which the consequence of error is death. DNA-proven wrongful convictions and a growing body of official exonerations have revealed an error rate in criminal justice that makes the death penalty as it now stands unacceptable.

— Jim Petro, former attorney general of Ohio, is co-author with Nancy Petro ofFalse Justice – Eight Myths that Convict the Innocent.

What Kind of 'Justice System' Refuses to Test DNA Evidence? The real scandal in the case of Sharon Snyder, who was fired for helping to exonerate an innocent prisoner

The following opinion by Conor Friedersdorf appeared in the July 30, 2013 edition of The Atlantic Magazine.

Outrage rippled across the web earlier this week as Americans heard the story of Sharon Snyder, "a 70-year-old great-grandmother who was fired nine months before she was scheduled to retire." Her transgression? An employee of Jackson County Circuit Court, she helped a man in prison who sought to have the DNA evidence in his case tested, but had his request rejected twice on technicalities because he hadn't managed to properly fill out the paperwork.

Robert Nelson, 49, sought DNA testing to overturn his rape conviction in 2009 and again in 2011, but Judge David Byrn denied both requests because he hadn't crafted the motion properly. "After the second motion failed in late October 2011, Snyder gave Nelson's sister, Sea Dunnell, a copy of a motion filed in a different case in which the judge sustained a DNA request," AP reports. Using that public document as a guide, Nelson finally won the right to have the DNA evidence tested on February 22, 2012. Last month, that DNA test proved him innocent.

And five days after he was released, Synder was fired for involving herself in a case before the court. "At first I didn't know if my pension was going to be intact, and all I could do was curl up in a fetal position and cry," she told AP. In fact, she will collect her full pension, the news story states.

The outrage generated on Snyder's behalf is understandable. When powerful people break the law in America -- torturing prisoners, say, or illegally spying on Americans without warrants -- they're granted retroactive immunity. It's only when regular Americans violate some law or rule, even to remedy an obvious injustice, that the importance of enforcing the rules is suddenly sacrosanct. But in this case, the great-grandmother was about to retire anyway, gets her full pension, and walks out the courthouse door knowing she helped free an innocent man from prison.

That's a happy ending.

The true outrage in this case is that Nelson was twice denied a DNA test that ultimately proved his innocence. Judge Byrn may have been following the letter of the law when he denied those two DNA requests, but he wasn't serving justice -- he was keeping an innocent in jail for two extra years. Why deny any inmate a DNA test that could definitively prove that he was innocent, especially in a country where DNA evidence has led to the post-conviction exoneration of 310 people? On average, those wrongfully incarcerated men served 13.6 years in prison.

Yet according to the Innocence Project, "Despite the widespread acceptance of DNA testing as a powerful and reliable form of forensic evidence that can conclusively reveal guilt or innocence, many prisoners do not have the legal means to secure testing on evidence in their case," and as frustratingly, "even in many of the states that grant access to DNA testing, the laws are limited in scope and substance. Motions for testing are often denied, even when a DNA test would undoubtedly confirm guilt or prove innocence and an inmate offers to pay for testing."

The system is unjust. That is the national outrage illustrated once again by this case.

Of course, it was also illustrated by the case of Willie Manning. "On the eve of his execution," my colleague Andrew Cohen explained in a powerful article published in May, "state officials say there should be no DNA or fingerprint testing for a condemned man who maintains his innocence."

What sort of state official opposes such requests?

When an inmate is exonerated by DNA, the most important consequence is the release of an innocent man or woman from prison, but that isn't all that happens. Taxpayers need no longer pay for room and board. Family members and friends stop suffering an absence. And in roughly half of DNA exonerations to date, the true perpetrator of the crime has been identified by the evidence. Everyone wins, save for the police, prosecutor, judge, and jury who put the innocent man away. They ought to admit their mistakes. Many do. But sometimes they keep fighting.

The cost of a DNA test is trivial compared to the possibility (and cost) of incarcerating an innocent person for years or even decades. A criminal justice system that lived up to its name wouldn't force prisoners to fight for these tests, jumping through hoops that require a law degree to understand. A just system would automatically test DNA in any case where it could conclusively prove innocence or guilt. Too often in our system, the adversarial nature of most proceedings obscure the fact that the end goal is to punish the guilt and exonerate the innocent. If prosecutors and judges who send innocents to prison face no consequences for doing so, even as a court clerk who helps to exonerate an innocent man is fired for insubordination, everyone may well be faithfully applying rules that were adopted with the best of intentions.

The contrast nevertheless suggests that it is time to adopt better rules (barring better Supreme Court justices). The Innocence Project says state DNA statutes should have the following attributes:

• Allow testing in cases where DNA testing can establish innocence - including cases where the inmate pled guilty

• Not include a "sunset provision" or expiration date for post-conviction DNA access

• Require states to preserve and account for biological evidence

• Eliminate procedural bars to DNA testing (allow people to appeal orders denying DNA testing; explicitly exempt DNA-related motions from the restrictions that govern other post-conviction cases; mandate full, fair and prompt proceedings once a motion seeking testing is filed)

• Avoid creating an unfunded mandate, and instead provide the money to back up the new statute

• Provide flexibility in where and how DNA testing is conducted

I'll bet Sharon Snyder would sign on to all that. I'm less sure about her former colleagues in Jackson County. But what really matters is the legislation passed by state legislators and Congress. DNA exoneration should be a priority -- it's a rare opportunity to make almost everyone better off.

How ‘Sloppy’ Fire Science Sends Innocents to Prison

The following opinion by Paul Bieber was published by The Crime Report on July 23, 2013.

For George Souliotes, this 4th of July was an Independence Day like no other. It was his first full day of freedom, after 16 years behind bars in California for crimes he did not commit.

Seventeen hundred miles away in Texas, Ed Graf spent his 4th of July in the same manner he has for the past 27 years—an innocent man confined in a state prison. His celebration of freedom will have to wait.

George Souliotes and Ed Graf do not know each other, but they share an unenviable bond: they were both wrongfully convicted of arson and murder and were both sentenced to life without parole.

Souliotes was tried in Modesto, CA for a 1997 blaze in his rental property that killed a mother and her two young children. Graf went to court in Waco, TX for a 1986 fire in his backyard shed that killed his two step-sons. In each case an amateurish fire investigation quickly escalated into a full-fledged witch hunt.

Fire investigators testified with absolute certainty in both cases that deep charring, holes burned into the wooden floors and "pour patterns" could only have been caused by an ignitable liquid, such as gasoline or paint thinner, intentionally used to start the fire. They also testified that each fire burned "abnormally hot,” further suggesting to investigators that the fires were fueled by a liquid accelerant.

The forensic expert testimony in these cases has been shown to be fundamentally unreliable.

The 1992 publication of NFPA 921 Guide for Fire and Explosion Investigation warns investigators not to rely on burn pattern analysis as proof of the presence of an ignitable liquid. A 1997 study by the United States Fire Administration demonstrated that the suspicious burn patterns listed above are created in any fully involved compartment fire, regardless of ignitable liquids, and that the heat of a fully developed fire has nothing to do with the use of a liquid accelerant.

More recently, blind study research by the Arson Research Project has shown the accuracy of experienced fire investigators in determining the presence of a liquid accelerant under these circumstances to be no better than a random guess.

Unreliable burn pattern analysis was so prevalent in the 1980s and 1990s that the Texas Forensic Science Commission recently recommended that all arson convictions in Texas be reviewed in order to determine which of the convictions are based on unreliable forensic evidence. The Texas Innocence Project took up the call and in conjunction with the Texas State Fire Marshall's Office has reviewed hundreds of the state's arson convictions.

The review has narrowed the field to less than a dozen cases, among over a thousand Texas arson convictions, where the presence of unsound forensic fire science is mixed with strong claims of actual innocence.

While fire investigators across the country slowly came to grips with the reality that many previous conclusions might have landed innocent people in prison, the Souliotes and Graf cases moved through the crushingly slow process of appellate review.

With the tenacious efforts of the Northern California Innocence Project and pro bono attorneys, Souliotes’ case found its way through state and federal courts. It landed in an evidentiary hearing in front of U.S. Magistrate Judge Michael Seng, who concluded that “no reasonable jury would have found him guilty beyond a reasonable doubt.” In a confirming opinion, U.S. District Judge Anthony Ishii said that Souliotes had shown “actual innocence.”

Late last month, the independent Texas fire review panel convened by the State Fire Marshal’s Office concluded that the original determination of arson by Texas fire investigators in the case of Ed Graf was mistaken. Speaking of the Graf case, Texas State Fire Marshal Chris Connealy said the original investigators “failed to meet the present day standard of care.”

The Souliotes and Graf cases represent far more than simply not meeting a basic standard of care. They represent a nationwide travesty: accidental fires continue to be misidentified as arson leading to wrongful convictions and at least one execution.

Convicted of arson and murder for the 1991 fire that killed his three young children in Corsicana, TX, Cameron Todd Willingham was executed in 2004. His conviction was based on the same discredited evidence present in the cases of Souliotes and Graf. Review of the Willingham case by the Texas Forensic Science Commission and independent experts has confirmed that the fire leading to his conviction was almost certainly accidental, not arson, and that the forensic determinations of the state’s experts were not based on science.

In the case of Willingham, sloppy fire science, mixed with a good dose of bias and speculation, led to the execution of an innocent man.

In spite of the presence of undisputedly flawed forensic evidence, a complete lack of reliable evidence to support a determination of arson, and strong showings of actual innocence, local prosecutors in California and Texas promised to go forward with retrials in both cases.

After protracted negotiations with Souliotes’ attorneys, on the eve of trial the Stanislaus County District Attorney agreed to drop the charges of arson and murder in exchange for a no-contest plea to involuntary manslaughter for failure to maintain the smoke detectors in the rental property where the fire occurred.

Under the terms of the plea, Souliotes did not admit guilt; but he did acknowledge that prosecutors had sufficient evidence to prove their allegation that the smoke detectors were not properly maintained.

The re-trial of Ed Graf is scheduled to begin in Waco in the coming weeks.

Two things must be done. First, charges should be dropped against Ed Graf and he should be immediately and unconditionally freed. Like George Souliotes, Ed Graf has been in prison for dozens of years for a crime that was never a crime at all.

Second, the same type of arson review conducted in Texas should be performed in arson cases nationally. The Texas Innocence Project and State Fire Marshal’s Office are proactive and forward thinking in their review of Texas’ arson convictions. Convictions outside of Texas deserve no less.

On Wednesday afternoon, July 3rd, George Souliotes walked through the lobby of the Stanislaus County jail towards the front doors that separated him from his first steps of freedom. After hugging his family and defense attorneys, while wiping tears from his eyes, he pointed through the glass of the front door.

“I see the sun,” he said. “It’s beautiful”.

It is time for Ed Graf and others languishing in prison on wrongful arson convictions to see the sun.

Paul Bieber is a private investigator specializing in indigent defense investigation and the founder and director of the Arson Research Project. He welcomes comments from readers.

Reforms to make sure justice is served to the right people

The following opinion by David A. Moran was published by the Detroit Free Press on July 4, 2013.

It’s no exaggeration to say Detroiter Harold Wells lost 18 months of his life because he chose to wear brown pants one night.

In the mid-1990s, when I was at the State Appellate Defender Office, I was assigned to represent Wells, who had been sentenced to four years in prison for stealing a car after a trial lasting only 30 minutes. But there were serious problems with the prosecution’s case that appeared to have escaped the notice of the lawyer who was supposed to be representing him at trial.

And that’s why I’m pleased that Gov. Rick Snyder signed indigent defense reform legislation Monday.

The legislation creates a commission to set and help counties implement accountability measures for public defense attorneys.

I’ve seen firsthand, over and over, how our current system of indigent criminal defense all too often results in innocent people going to prison.

In Wells’ case the prosecution called two witnesses, both police officers. The first officer testified that he saw a car run a stop sign. He ran the plates, the car came back as stolen, and a chase ensued. The car stopped, and the driver and two passengers bailed out, with the driver disappearing into the night. The officer could describe the driver as only a black male with brown pants.

The other officer testified that he heard the first officer’s description and, about 15 minutes later and a quarter mile away, saw a black male wearing brown pants walking down the street. The officer arrested that man, Harold Wells.

And that was the prosecution’s entire case. Appointed defense counsel did no real cross-examination, did not make an opening statement, presented no witnesses and barely made a closing argument.

Immediately after I was assigned the Wells case on appeal, I did something that trial counsel had never bothered to do: I read the police report. In that report, I learned that when police took Wells to the station that night, the passengers who had been arrested earlier said, “That’s not him.”

We found one of those passengers, who not only confirmed that Wells was not the driver, but also told us that she had given the police the name and address of the man who was driving.

As a result, Harold Wells was freed after serving 18 months in prison. In addition to the incalculable damage to Wells’ life, it cost Michigan about $50,000 to incarcerate him, while the real thief remained at large.

Unfortunately, the Wells case is far from unique. In investigating and litigating scores of cases, I have learned that it is all too common for appointed trial attorneys in Michigan to show up for trial woefully unprepared.

Ken Wyniemko, who was exonerated by DNA after serving nine years in prison for rape, was represented by a lawyer who was appointed to his case just four days before trial began.

As the Free Press documented in a series in 2002, Eddie Joe Lloyd served 17 years for a murder he didn’t commit after his court-appointed lawyer spent less than a week preparing for his trial.

A 2008 study confirmed that Michigan has one of the worst systems for providing trial-level indigent defense in the nation and that appointed lawyers, as a rule, lack the time and resources to adequately defend their clients.

Providing adequate legal defense to everyone the state accuses is a bipartisan issue. We all pay when a poorly trained or overworked attorney botches a case, sending an innocent person to prison while the real perpetrator remains free to commit more crimes.

Snyder and the Legislature deserve credit for making this issue a priority. As a result of their efforts, I hope we soon will have an indigent defense system that prevents wrongful convictions — instead of creating them.

David A. Moran is a clinical professor of law at the University of Michigan Law School. In 2009, he co-founded the Michigan Innocence Clinic, which handles cases of actual innocence on behalf of inmates for whom DNA evidence isn’t available. The clinic has so far freed seven people who were wrongfully convicted.

Cuyahoga County (Ohio) assistant prosecutor fired, but larger questions remain: editorial

The following editorial by the Editorial Board of the Cleveland Plain Dealer was published on June 7, 2013.

Aaron Brockler was working way too hard. Now he has some time off to think about it.

But the damage he has done will be a long time dissipating, and some of it may well be permanent.

The assistant Cuyahoga County prosecutor was fired last week after it came to light that he had tried to influence the testimony of witnesses in a homicide case.

Brockler got into a Facebook chat with two women listed by the defense as alibi witnesses for Damon Dunn, a 29-year-old Cleveland man accused of shooting Kenneth "Blue" Adams to death at an East Side car wash in May 2012.

Brockler posed during the chat as a former girlfriend who had had a child with Dunn -- a tale that angered the women and, Brockler says, persuaded them not to "lie for him."

Brockler said he included a transcript of the Facebook chat in the case file. The Prosecutor's Office, however, says information about the Facebook session came from outside sources.

County Prosecutor Timothy J. McGinty fired Brockler and withdrew his office from the Dunn case because of the possibility that Brockler will be called to testify. The Ohio Attorney General's Office will take it from here.

Brockler told Plain Dealer reporter James F. McCarty that his sole motivation was getting to the truth. "I think the public is better off for what I did," he said.

He could not be more wrong.

There is a proper, ethical way to impeach a witness, but Brockler's method was out of bounds. As a result, he has handed the defense a prosecutorial misconduct argument to put before a jury.

He has done his own career and his own reputation considerable damage.

His actions have called into question, yet again, the culture of a Prosecutor's Office that has often been accused -- and sometimes convicted -- of being more zealous about winning cases than about seeing justice done.

He has opened the door to questions about the conduct of previous cases in which he was involved, just as revelations of misconduct by Carmen Marino, the star of the Prosecutor's Office in the 1980s and '90s, led to a string of retrials and appeals.

Brockler's firing was a given.

Now McGinty owes the public a thorough inquiry to determine whether it alone solves the problem.

New York State Legislators some simple steps to help reduce wrongful convictions

The following editorial by the Buffalo News was published on May 17, 2012

Once again, an Erie County resident has been exonerated of charges on which he was wrongly convicted. Nathanial A. Johnson spent nearly four years in prison for an armed robbery he did not commit. And still, Albany cannot find the courage – or even the common sense – to adopt the reforms that would make New York’s criminal justice system more just. What exactly do lawmakers need before they can act?

Perhaps it’s just that the wrongfully convicted have no powerful lobby to support them. What’s four years – or five or 15 or 20 – in prison, anyway? So what if innocent people are trapped behind bars while the actual criminals remain free to rob, rape and murder?

It’s a serious matter. While Anthony Capozzi of Buffalo spent 22 years in prison for rapes he did not commit, the real rapist, Altemio Sanchez, continued attacking women and soon progressed to murder as the Bike Path Killer. His victims might well be alive today if the reforms now being pushed in Albany were in force then. What other victims await because of the Legislature’s indifference?

Capozzi had been misidentified as the rapist by Sanchez’s victims, and from that moment his fate was sealed. Johnson was also wrongly identified by the victim of the robbery, and his conviction was further cemented by sloppy police work and a shady deal made by the prosecution with a witness facing a drug charge.

Witness misidentification is, in fact, the most common cause of wrongful conviction. Something can be done about that, and about another leading cause, the false confession. All that is required is the will to act.

Those reforms include changes in the way police conduct lineups. Witness identifications are notoriously unreliable, especially from victims who were under great stress at the moment of the crime, perhaps even with a gun aimed at them.

An inappropriately conducted lineup can not only lead the witness in a particular direction – purposely or not – but it can also solidify that identification in the mind of the victim who longs for justice but who may initially have been uncertain. “It’s like trace evidence,” said Stephen Saloom, policy director for the Innocence Project in New York City. Once you contaminate an identification, you can’t restore it.

Similarly, video recording of interrogations guards against the phenomenon of false confession, in which a suspect, often under unrelenting pressure and perhaps emotionally or mentally impaired, tells investigators what they want to hear in a vain effort to end their suffering.

These kinds of reforms have been adopted in other states, Saloom said, and none has backed away from them. They work. They produce better detectives and better law enforcement. They help keep innocent people out of prison.

Both Gov. Andrew M. Cuomo and the Assembly have favored reform efforts in these areas. The problem is in the State Senate, where members seem unable to comprehend that preventing wrongful conviction is a law-and-order issue, and a powerful one.

Saloom believes senators are waiting for the state’s district attorneys to lead the way before they will approve any legislation, but that’s allowing the tail to wag the dog. What is more, the reforms being pushed in New York are the product of a committee that was heavy with law enforcement members. There is no justification for continued delay.

One state senator, Patrick Gallivan, R-Elma, is Erie County’s former sheriff. With so many wrongful convictions in his home county – a third recent one was of Lynn DeJac Peters, wrongfully convicted of murdering her daughter – he could be a powerful voice of reason in the Senate, and, indeed, he should be. His resume confers on him a responsibility and his leadership could make a difference.

Johnson was saved from even more time in prison largely because a friend wouldn’t let the case drop. That was his good fortune, but innocent people should not have to depend upon that. The state of New York should be on their side and, as of today, the state doesn’t much care.

Unfinished Business

The following opinion by O. Ricardo Pimentel was published by the San Antonio Express-News on May 23, 2013.

The photo of Gov. Rick Perry signing legislation that diminishes the chances of wrongful convictions in Texas is rich in irony. More important, it projects an indelible sense of job undone.

The irony is embodied in the now-deceased person of Cameron Todd Willingham, who also points to the unfinished work. Those intimately familiar with Texas' criminal justice history can tell you that Willingham, even more than Michael Morton — whose case prompted this legislation — is the state's prime example of wrongful conviction.

Morton's story is incredibly tragic. He spent nearly 25 years in prison after being convicted in the beating death of his wife. The prosecution withheld evidence that would have cleared him. Thanks to the work of the New York-based Innocence Project, Morton was exonerated by DNA evidence that pointed to another man, who has since been convicted.

But Morton is alive. Texas executed Willingham in 2004, convicted on the strength of highly flawed arson evidence for the deaths of his three daughters in Corsicana. The evidence actually points to no arson.

The photo shows Perry signing the bill at his desk, flanked by Morton and legislators. The irony: a report discrediting the evidence used to convict Willingham came across that desk or one similar in plenty of time for Perry to have spared Willingham's life.

It is likely — if not certain — that Texas executed an innocent man. At the very least, the new evidence pointed to the need for a new trial. But the state ignored the report. And the story might have ended ingloriously there but for Perry's actions in 2009, when he replaced three members of the Texas Forensic Science Commission as it was considering the flawed evidence used to convict Willingham. The governor obviously feared embarrassment as a primary challenge from then-U.S. Sen. Kay Bailey Hutchison seemed likely. His handpicked commission chairman squelched the Willingham investigation.

Understand, the bill Perry signed on May 16 was absolutely necessary. Sponsored by Sen. Rodney Ellis, D-Houston, the measure forces prosecutors to share all evidence relevant to the defense. Had it been around, Morton would have likely been spared those 25 years in prison. And, now, others will surely be spared that fate. Have I mentioned that Texas has a nation-leading 117 exonerations?

But about that unfinished business. Texas has undertaken other reforms of criminal justice. It's now easier, for instance, for inmates to get access to DNA testing.

But DNA evidence is not available in all cases. Even with this new requirement for sharing evidence, there will surely be convictions in the future based on circumstantial evidence, notoriously flawed eyewitness accounts, testimony from untrustworthy sources and other evidence of dubious scientific and factual merit. And even with the scare presented by the pursuit of criminal charges against the district attorney who prosecuted Morton, there will still be prosecutors for whom winning will be the most important thing. Some of these will be capital cases.

The unfinished business for Texas is to rid itself of the death penalty — an absolute sanction from which there is no remedy.

There can be no guarantee of error-free process in these types of cases and others. It will be legal due process, to be sure, scant comfort to someone wrongfully executed. If Morton's case involved the death penalty, he'd be dead. Willingham is, killed on the strength of invalid arson evidence. There will be errors in future death penalty cases. Since it cannot be otherwise, Texas — and all other states — must cease killing people.

Beyond the Brady Rule

The following editorial was published by the New York Times on May 18, 2013.

Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.

It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

It is impossible to know how often prosecutors violate Brady since this type of misconduct, by definition, involves concealment. But there is good reason to believe that violations are widespread. Hundreds of convictions have been reversed because of prosecutorial suppression of evidence. In many cases, the exculpatory evidence surfaces only on appeal of a conviction, and often comes to light because other aspects of the prosecution are rife with error.

The 2011 case of John Thompson is particularly instructive — as an example of atrocious prosecutorial misconduct and of the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row for a murder he did not commit. He was exonerated when an investigator found that lawyers in the New Orleans district attorney’s office had kept secret more than a dozen pieces of evidence that cast doubt on Mr. Thompson’s guilt, even destroying some. Yet the Supreme Court’s conservative majority overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights. Outrageous breaches of due process rights in such cases show that the Brady rule — which seems essentially voluntary in some places — is simply insufficient to ensure justice.

A better approach is to require the opening of prosecutors’ files to defendants, as a general rule. North Carolina adopted open-files reform to make criminal cases more efficient and fair. The state statute requires prosecutors in felony cases, before trial, to make available to the defense “the complete files of all law enforcement agencies, investigatory agencies and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant.” The statute has improved the justice system, including enhancing fairness in plea bargains.

Ohio has followed North Carolina’s lead, and other states should as well. So should Congress. The Justice Department insists that it has solved this problem by tightening requirements for disclosure in its manual for federal prosecutors, but numerous misconduct scandals show that is not sufficient. Since the Brady decision, prosecutors throughout the justice system have acquired more power, with little to deter them from abusing that power. The best way to fulfill the promise of Brady is with open-files reform, which addresses the need for full disclosure of evidence that could show a defendant’s innocence.

Law Enforcement Commitment to Exonerating the Innocent Grows

by Dan Abrams

The following opinion was published by Lawyers.com on April 10, 2013.

As a regular observer of our criminal justice system, there are few things more maddening than to watch a prosecutor or other law enforcement officials simply refuse to say, “We got it wrong.” Despite overwhelming evidence of innocence, some police officers and district attorneys remain steadfast in having convictions stand or, at best, will cut deals to release defendants only if they plead no contest (often called an Alford plea), while maintaining their innocence. Yes, most district attorneys are elected officials and apologizing is anathema to pols, but DAs simply can’t behave like other politicians. Their power is too absolute, and the stakes too high.

So it was beyond heartening to see an announcement last week from the National Registry of Exonerations, a joint project of the University of Michigan and Northwestern University Law Schools, that in 2012 police and prosecutors assisted with exonerations at “record high levels,” and that, for the first time, law enforcement initiated or cooperated in more than half of those cases.

Growing Trend
This is a truly transformative period as we transition from a time where DNA testing was not (at least widely) available, to one where it regularly — even routinely — assists in convictions, forces plea deals, and can also help clear those falsely accused. Since 1989, 63 percent of sexual assault exonerations, for example, have included DNA evidence.

The report found that of the 63 known exonerations in 2012, law enforcement initiated or cooperated in 34 (54 percent). The previous high for assistance from the authorities, according to the report, was in 2008 (39 percent), and since 1989, officials have assisted, on average, in about 30 percent of those cases where defendants have been cleared.

That is not to ignore the reality that many defendants falsely maintain their innocence, thereby muddying the waters for the truly innocent. Nor in every one of the exoneration cases were the authorities unambiguously dead wrong. But in the overwhelming majority, as a result of everything from sloppy police work and overeager prosecutors, to inaccurate eyewitness testimony, false confessions and even guilty pleas, they just blew it.

Professor Samuel Gross, editor of the Registry, believes the numbers could reflect changes in state laws that allow for post-conviction DNA testing, as well as the increasing number of district attorneys’ offices that now have units devoted to ensuring the integrity of convictions.

Still a Long Way to Go
While the news is promising and comforting, there is a dark legal cloud that remains. The study also found that official cooperation was least likely where it is needed most, in cases with the most severe sentences — capital murder and mass child sex abuse cases — and far more likely in more minor robbery and drug cases.

In particular, those who support the death penalty should take note. The death penalty will become a relic of a bygone age if prosecutors keep “winning” death sentences for those proven innocent, and maybe even worse, then refuse to cooperate in ensuring that justice is served. What is basically a massive legal editing system is, and will remain, focused on death penalty cases, leading to greater scrutiny after trial. So it should come as no surprise that death sentences produce exonerations at nine times the rate of all homicide convictions. We just can’t get the death penalty wrong, and states around the country have abolished or suspended it for this very reason.

So kudos to law enforcement for mustering the courage to admit their mistakes and to attempt to remedy them, but we still have a ways to go.

U.S. Attorney Robert O’Neill’s Tangled Web

by James Scanlan, Esq.

On April 4, 2013, Robert E. O’Neill announced that this summer he is leaving his post as U.S. Attorney for the Middle District of Florida to become a managing director with Freeh Group International Solutions, LLC, a global risk management firm founded by former FBI Director and former U.S. District Judge Louis J. Freeh. O’Neill was apparently hired by Freeh Group CEO James R. Bucknam, who has known O'Neill since the mid 1980s when both worked at the Manhattan District Attorney's office. A Tampa Bay Times article quotes Bucknam as observing that, among other qualities, O’Neill has “a keen sense of ethics.” A Tampa Bay Tribune article quotes Bucknam as noting that O’Neill is “extremely ethical.”

O’Neill’s ethics, and his reputation for ethics, would naturally be important to the Freeh Group. The firm, whose specialties include business ethics and compliance, as well as investigations and due diligence, and which was retained by Penn State’s Board of Trustee’s to investigate the University’s leadership’s handling of evidence of child abuse by former football coach Jerry Sandusky, lists integrity and credibility as the first two of the attributes it brings to a client.

O’Neill is the subject of more than a dozen articles I posted here between 2010 and 2011 as well as the Robert E. O’Neill profile page on jpscanlan.com and a large group of related materials I make accessible by means of the Prosecutorial Misconduct page of the same site. The articles, links to which are collected here, and the materials on the website discuss prosecutorial abuses committed by O’Neill as lead trial counsel in U.S. v. Dean, a case in which both the district court and court of appeals severely criticized O’Neill’s conduct. The articles and other materials also address the fact that O’Neill made a false statement on an application for the U.S. Attorney position that he submitted to the Florida Federal Judicial Nominating Commission. Most of these materials have been brought to the attention of the Department of Justice, the Senate Judiciary Committee, the Tampa Bay press, and judges in the Middle District of Florida by letters that that are available here.

My descriptions of O’Neill’s conduct are well documented and generally provide links to underlying materials. I suggest that the essential correctness of those descriptions is difficult to dispute. But one thing that no one could possibly dispute is that O’Neill made a false statement on his U.S. Attorney application. In an apparent effort to minimize the matter, O’Neill stated that a District of Columbia Bar Counsel investigation of his conduct in the Dean case was initiated by the convicted defendant. In fact, the investigation was initiated by Bar Counsel itself after reading a court of appeals opinion “deplor[ing]” the conduct of O’Neill and his colleagues. In making the false statement on the application or at other points in the vetting/confirmation process for the U.S. Attorney position, O’Neill almost certainly violated 18 U.S.C. § 1001, a violation for which the limitations period will not expire before June 2014. See the February 19, 2011 Truth in Justice item titled “Robert E. O’Neill and 18 U.S.C. § 1001.”

Among many remarkable aspects of O’Neill behavior as a prosecutor discussed in the referenced materials is O’Neill’s penchant for calling people liars, sometimes (perhaps much of the time) while believing or knowing with absolute certainty that they did not lie. See the September 26, 2010 Truth in Justice item titled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience” and the June 29, 2011 Truth in Justice item titled “Robert E. O’Neill’s Tricks of the Trade – One (The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.)”

The latter item concerns an instance in the Dean case where O’Neill pressured a government agent into giving false or misleading testimony in order that O’Neill could then lead the jury falsely to believe that the defendant lied about a call to the agent. O’Neill then provocatively relied on the agent’s supposed contradiction of the defendant to generally undermine her credibility. That item is lengthy, but, I suggest, worth the time of persons interested in O’Neill’s character or prosecutorial abuse generally, whether or not they conclude that O’Neill and others should have served time in prison either for the underlying conduct or subsequent efforts to cover it up.

The former item discusses the following strident remarks O’Neill made in an effort to undermine a witness in U.S. v. Spellissy: “A liar is a liar. And whether someone is lying to save their soul or their hide, they are still lying. And once you are a liar, you cannot trust that person.” Given the undisputable fact that O’Neill lied on his U.S. Attorney application, these remarks may one day make him a subject of considerable derision among an informed public.

One must assume that O’Neill is aware of these materials, among other reasons, because I have on more than one occasion called them to his attention, including in a July 5, 2010 letter advising him of his obligation to advise the President and those involved in the confirmation process that he had lied on the U.S. Attorney application. And certainly he is aware of the criticism of his conduct by two courts, including that which lead to the DC Bar Counsel investigation.

So, given the premium the Freeh Group places on integrity and credibility, one must wonder what O’Neill told the firm about the existence of so much readily available material calling his integrity into question, as well as about the merit of those materials. Even if there were no merit to anything I (or the courts) have written about O’Neill, a person in O’Neill’s position would have an obligation to advise a potential employer of the widespread dissemination of materials that could cause the employer embarrassment or undermine its reputation. Indeed, even if the materials did not exist, O’Neill would seem to have an obligation to advise the potential employer of the two courts’ criticism of his conduct in the Dean case. For that matter, O’Neill would also have the obligation to advise a potential employer that he had lied on the U.S. Attorney application and that, assuming he violated 18 U.S.C. § 1001 by doing so, he would remain vulnerable to prosecution for some time.

But raising any of these matters would be problematic for O’Neill given the absence of plausible explanations, especially when the potential employer specializes in investigations and due diligence. And advancing an unfounded defense would be deemed deliberate deception of the employer. So, too, however, would be failure to mention things the employer would want to know.

Yet, if O’Neill did advise the Freeh Group of the existence of these things, it is difficult to know how it could have offered O’Neill a position as a managing director. Regardless of what O’Neill might proffer about the credibility of the materials, once aware of their existence, the firm could not responsibly fail to determine whether any serious allegations were well founded. I suggest, however, that it would be difficult for a careful investigation to disagree other than in minor respect with my interpretation of multiple abuses committed by O’Neill in the Dean case, including the heinous and very likely criminal conduct that is the subject of the June 29, 2011 Truth in Justice item. But even if there were not the least merit to my interpretation of O’Neill’s conduct in the Dean case, and not the least basis for the two courts’ criticisms of O’Neill’s conduct in the case, it would remain undisputable that he lied on the U.S. Attorney application. How then could the Free Group offer to hire O’Neill, leave aside publicly laud his ethics?

One possible answer, and one consistent with his behavior in seeking the U.S. Attorney position (as detailed in Addendum 7 to O'Neill’s profile), is that O’Neill did not tell the Freeh Group anything about the web site materials or Truth in Justice items or anything else raising question about his integrity to which he did not have the solidest rebuttal. A person with the tortuous ethics described in the O’Neill profile might even maintain, as prosecutors sometimes do in discovery, that he did not have to tell the potential employer things that were already in the public record (indeed widely available on the Internet). It is a defense that, ironically, would even apply to the false statement on the application. Few employers, however, would be pleased with a candidate’s taking such a position.

Assuming O’Neill failed to advise the Freeh Group of the many widely disseminated materials calling his integrity into question, such failure would raise like questions about his integrity irrespective of the validity of those materials. It would also provide the Freeh Group a basis for withdrawing its offer quite apart from a need to do so to maintain its credibility.

But if O’Neill did not tell the Freeh Group about these matters, one must still wonder how the Freeh Group could offer O’Neill a managing director position without doing the things that typically would bring such matters to its attention. Possibly the firm relied on Bucknam’s long acquaintance with O’Neill (and possibly Freeh’s as well). The firm may also have assumed that the recent vetting of O’Neill by the Department of Justice and Senate Judiciary Committee afforded it some confidence that O’Neill would withstand its own inquiry into his background. Unfortunately, the dubiousness of Department of Justice and Senate Judiciary Committee implied or explicit representations as to the trustworthiness of presidential appointees – as reflected in the above-mentioned September 26, 2010 Truth in Justice item and an October 3, 2010 Truth in Justice item titled “Whom Can We Trust?” – is not as widely known as it ought to be. One must doubt, however, that the Freeh Group would encourage a client to hire a person for an important position without at least doing an Internet search of the person. Yet one cannot do a simple Internet search on O’Neill without being confronted with many of the materials described above.

In any case, the Freeh Group is now aware of these materials and, and so long as it wishes to represent itself to its clients as a firm of integrity and credibility, and to impliedly or expressly represent that O’Neill has these attributes as well, it faces obligations akin to some of those faced by the leadership of Penn State that were the subject of the Freeh Group investigation. One key difference, of course, is that the subject of the obligation is already widely publicized and the firm must face the prospect that a client may one day ask it to explicitly address whether there is merit to issues I or the courts have raised about O’Neill’s integrity, including the simple matter of whether he in fact lied on the U.S. Attorney application. The firm will have several months to consider these issues before O’Neill joins it to head a Miami office that is apparently intended to provide a base for the firm’s growing Latin American practice.

Addendum - The FBI Award to Independent Counsel David M. Barrett
Louis J. Freeh is mentioned in a March 8, 2011 Truth in Justice item titled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett,” an item that also mentions O’Neill in its body and two addendums and that raises issues about the processes of putatively competent governmental entities charged with ensuring the integrity of public officials that are similar to those raised by the appointment of O’Neill to the U.S. Attorney position. The main subject of the item is former Independent Counsel David M. Barrett, whose investigation of HUD Secretary Henry Cisneros for a false statement during the appointment process ran from 1995 to 2006 and expended $22,750,000 and would be described by one former Department of Justice official as “one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement.” At some point Barrett received the highest award bestowed on a civilian by the FBI, the Thomas Jefferson Award, with an inscription signed by FBI Director Freeh that read: “To David Barrett with respect and gratitude for your service to the nation, perseverance, and dedication to your duty from your colleagues at the Federal Bureau of Investigation.” The web page for Barrett’s firm stated that Barrett received the award after completion of his Independent Counsel investigation. Inasmuch as Freeh left the FBI in June 2001, however, the award could have been made no more than six years into Barrett’s investigation.

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