Tuesday, July 30, 2013

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.

Tuesday, July 23, 2013

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.

Saturday, July 06, 2013

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.