A Man Wrongfully Incarcerated Becomes a Prison Reformer

by Jeffrey Deskovic, published by GoodMenProject.com on December 19, 2014

After spending 16 years wrongfully incarcerated, Jeffrey Deskovic could have re-entered society bitter and downtrodden. Instead, he began to exhaustively work to help others in his situation.

I spent 16 years, from ages 17 to 32, in prison in New York for being wrongfully convicted of murder and rape. This was prior to being proven innocent via DNA testing eight years ago, which identified the actual perpetrator, who was subsequently convicted. Thanks to a full scholarship from Mercy College, I completed a B.A., later obtaining a Masters Degree from the John Jay College of Criminal Justice. I am also the director of The Jeffrey Deskovic Foundation for Justice, which I founded to fight wrongful convictions.

My views on prison reform are shaped by personal experience, formal education, and informal studying. There are three important reasons why we should care about prison reform, rather than thinking “who cares what happens to prisoners, they committed crimes.” If we subject incarcerated people to bad prison conditions, we are deterring rehabilitation. People are sent to prison as punishment, not for punishment. As a society, we lose our humanity, and our moral standing in the world-at-large, if we treat incarcerated people badly.

Here are ten ideas on prison reform:

Separate youth from adults.
At 17 years of age and weighing approximately 150 pounds, I was sent to a men’s maximum security facility that was filled with fully developed adults, many of whom were guilty of having committed serious violent crimes. To say that I was vulnerable was an understatement, and over the years I was repeatedly physically—though thank God not sexually-assaulted. Youth convicted of crimes should be housed in Division For Youth Facilities until 21, even if they have been charged as an adult, then transferred to a facility set aside for incarcerated people 21-25, before co-mingling them with the general population. To facilitate visitation, recognized as an important factor in formerly incarcerated people transitioning to a crime free life, there should be one such designated facility near the city, and one in upstate New York. Currently, visitors often must travel 5-8 hours each way to facilities far away: so time consuming and costly a proposition that they often don’t bother.

Separate violent offenders from non-violent offenders.
Incarcerated people convicted of non-violent offenses should not be housed with those convicted of violent crimes. Additionally, regardless of the charges, those whose actions demonstrate that they choose to conduct themselves violently while incarcerated should be separated from those that don’t. I sometimes found myself, and others I knew who eschewed violence, forced to physically defend ourselves.

Segregate vulnerable populations.
Incarcerated people convicted of sex-offenses, or with mental health issues, or otherwise deemed by security to be vulnerable to abuse, should be separated from the general population.

Eliminate visitation deterrents.
Staff often are verbally abusive during visitor processing. Once admitted to the visiting room, visitors often are made to wait for up to two and half hours before the incarcerated person shows up. Incarcerated people should be informed immediately that they have a visit.

Aggressively stop staff verbal abuse.
Some of the correction officers verbally abused the incarcerated, while their co-workers and supervisors not only looked the other way, but often laughed and even sometime participated.

Upgrade medical care.
The medical staff’s answer to nearly everything was issuing Tylenol and telling incarcerated people to come back the next day. It often took a month or longer to see a doctor. Some of the nurses and doctors had bad attitudes. Staff sometimes were more interested in saving the state money than the care of their patients: once a doctor refused to sign off, for financial reasons, on a trip to an outside doctor to treat a badly injured pinky because I “still had partial movement”. I now have a permanent disability, unless I want to have it broken and reset. In some states, medical staff have been discovered not to have received an accredited education; a review of qualifications is in order.

Improve meal quality.
Meals sometimes were not fully cooked, or burned, while at other times were very greasy. Staff simply did not care. Portion control was an issue: Sunday “dinner” was often 2 pieces of baloney, an old hot dog bun, a bag of potato chips that was mostly air, ¼ of a slice of canned peaches, and a bowl of soup. Some soup consisted of leftover ingredients previously served out two or three times and had merely been mixed with plain water; hence most would not eat it.

Bring back college.
The recidivism rate was extremely low for incarcerated people who received a college education. Why? Education equips incarcerated people for gainful employment and expands their horizons. It is better to spend money for college education on the front end, estimated at costing $5000 more per incarcerated person per year, than to spend $60,000 for reincarceration, with the numbers provided from Gov. Cuomo. The formerly incarcerated would be paying taxes rather than draining them, and we could prevent future crime victims. Rhetoric aside, college education is a serious crime prevention initiative.

Update vocational curriculum and insist that instructors instruct.
Many instructors were simply there for a paycheck and did not actively teach. They had no oversight. Additionally, the curriculum was obsolete.

Provide religion based meal options.
In Elmira and nearly all prisons in New York with the exception of Green Haven, Jewish incarcerated people were not given hot meals: everything was cold cuts, tuna fish, fresh vegetables and fruits. An exception was Hanukah, where warm meals were prepared and served after the general population. Why couldn’t similar arrangements be made all the time? Muslims too should be provided with food within their dietary restrictions—it would not involve additional cost, it just means that a decrease of one type of food supply and an increase in another.

It may be hard for one person to push for these reforms. But standing together gives activists a powerful and influential voice. Please stand together with the Deskovic Foundation for Justice this Holiday season and help us fight for criminal justice reform.

Lawyer lied during Kirstin Lobato’s Nevada Supreme Court arguments

by Special to the Las Vegas Tribune November 13, 2014

A minimum-wage convenience store clerk who lies under oath in court can be convicted of perjury and sentenced to prison. In contrast, a highly paid lawyer can fearlessly lie his or her head off when publicly appearing before the Nevada Supreme Court.

We know that because of what occurred during oral arguments before the full Nevada Supreme Court on September 9, 2014 concerning Kirstin Blaise Lobato’s habeas corpus appeal. The attorney representing the
State of Nevada — Clark County Assistant District Attorney Steven S. Owens — repeatedly lied about issues related to Ms. Lobato’s case.

The Supreme Court’s response has been deafening silence. Owens’ dishonest assertions include:

1) Owens lied twice that Ms. Lobato made a “confession” related to Duran Bailey’s homicide in Las Vegas on July 8, 2001. (Oral Arguments [OA] at 9, 13. See note at end.) The truth is that during Ms. Lobato’s trial the State didn’t assert in its opening statement, closing argument, or present trial testimony she made a “confession” to Bailey’s homicide. It exists only in Owens’ imagination.

2) Owens lied, “She was convicted by her own words at the trial, and her own words belie the argument that she is actually innocent.” (OA at 7-8.) The truth is there is nothing incriminating regarding Bailey’s homicide in her police Statement or comments attributed to her — none of which even include the date, location, or manner of Bailey’s death from a head injury. Furthermore, Ms. Lobato’s habeas petition details her conviction was due to Metro Det. Thomas Thowsen’s extensive false testimony regarding her Statement and comments, and his alleged investigations; and more than 275 unrebutted instances of prejudicial prosecutor misconduct during her trial — none of which were objected to by her lawyer.

3) Owens lied, “Shortly thereafter [Bailey’s homicide], Kirstin Lobato in Panaca, Nevada, started talking about a severed penis.” (OA at 7)
The truth is Ms. Lobato mentioned in her Statement that prior to June 20, 2001 she had a conversation with a woman about the Las Vegas rape attempt she fended off with her pocket knife. Also, her habeas
petition includes unrebutted new evidence by nine alibi witnesses who were informed by her beginning in May 2001 that she used her pocket knife to fend off a would-be rapist in Las Vegas.

4) Owens lied that Ms. Lobato’s vague comment referring to a conversation with her father is evidence of a guilty mind to Bailey’s homicide. (OA at 8) The truth is her comment refers to a conversation with her father in June 2001 — weeks prior to Bailey’s homicide.

5) Owens lied, “But nothing at the crime scene is going to help them because the jury already knew that evidence there pointed away from Kirstin.” (OA at 13) The truth is Ms. Lobato’s unrebutted new exculpatory crime scene evidence establishes among other things that Bailey’s killer made all the shoeprints imprinted in blood and they don’t match Ms. Lobato; Bailey’s cutting and stab wounds were not inflicted by her pocket knife; and Bailey was alive when his rectum injury occurred, proving she was convicted of a non-existent violation of NRS 201.450. Furthermore, two jurors determined after reviewing all the new evidence that “it could have possibly resulted in either a hung jury or Ms. Lobato’s acquittal.”

6) Owens lied Bailey’s time of death isn’t “critical.” (OA at 10) The truth is the State’s theory of Ms. Lobato’s guilt depended on convincing the jury Bailey died before 7 a.m.

7) Owens lied the jury “rejected” Ms. Lobato’s alibi evidence she was in Panaca the evening of July 8. (OA at 10) The truth is the State conceded during its closing argument it is factually true she was in Panaca from at least “11:30 a.m. through the night.”
8) Owens lied in his assertions Ms. Lobato’s unrebutted new expert forensic evidence Bailey died after 8 p.m. isn’t important. (OA at 10)  The truth is the State conceded at trial she was in Panaca 165 miles from Las Vegas at that time, so it is impossible she committed his homicide.

9) Owens lied, “We have here a couple statutory remedies that Ms. Lobato could avail herself of. … and the other is a motion for DNA testing…” (OA at 12) The truth is Ms. Lobato’s petition for post-conviction DNA testing of crime scene evidence — including semen recovered from Bailey’s rectum — was vigorously opposed by the Clark County D.A. and denied by Judge Valorie Vega. The Nevada Supreme Court dismissed her appeal, “Because the order is not appealable.”

The foregoing is only a partial litany of Owens’ gross dishonesty throughout his argument. It was a continuation of Owens’ dishonesty related to Ms. Lobato’s case. His false public statements to KLAS-TV (Las Vegas), the Associated Press, and the Las Vegas Review-Journal, and in documents filed in the Nevada Supreme Court, are detailed in a letter sent to Clark County District Attorney Steven Wolfson dated July 3, 2012. That letter states: “Mr. Owens’ pervasive dishonesty is a gravely serious matter.” (p. 11) (The letter is online at, http://justicedenied.org/kl/wolfsonletter.pdf.) Wolfson’s inaction is evidence he expects less honesty from his deputies than responsible parents expect from their four-year-old child.

The Supreme Court has the authority to hold Owens in contempt of court for his dishonest and deceptive conduct and impose sanctions, and to refer him to the State Bar of Nevada for investigation. Owens’ unrestrained dishonesty that denied Ms. Lobato her right to a fair hearing is “good cause” for the Court to exercise its authority to sua sponte strike his arguments from consideration of her appeal.
The Nevada Supreme Court should hold Steven S. Owens accountable for his contemptible conduct and take the most extreme actions possible to protect Ms. Lobato’s rights, and the integrity of the Court and its deliberation process.

* * *

Hans Sherrer is President of the Justice Institute based in Seattle, Washington, that promotes awareness of wrongful conviction and conducted a post-conviction investigation of Ms. Lobato’s case. Its website is, www.justicedenied.org.

I Feared I’d Die in Prison for Maintaining My Innocence

The following article by Fernando Bermudez was published by the New York Times on November 13, 2014.

Fernando Bermudez spent 18 years prison after being convicted of murder in 1991, before being found innocent. Married with three children, he earned a bachelor's degree in behavioral science and is considering going to law school. As a speaker, he has given more than 250 talks in the United States and overseas.

Imagine yourself happy, on the verge of a career, promotion or meaningful relationship, then suddenly trapped in prison, fighting for freedom and your sanity over a crime you did not commit.
In 1991 I never imagined this would happen to me when I was arrested, convicted and incarcerated for murder. My wrongful conviction stole over 18 years of happiness for my family and I until Justice John Cataldo of State Supreme Court in Manhattan dismissed the charges and declared me actually innocent in 2009. He ruled that the police and prosecutors had used perjured testimony and illegal identification.

I wrestled with many fears during my incarceration, surrounded by violence. But my greatest fear was that I could die in prison maintaining my innocence. Year after year, I witnessed the parole board deny release to inmates who maintained their innocence, like one friend who died in prison after being denied parole every two years. Others used drugs to numb the painful reality of being trapped while innocent.

If I had stayed in prison, I would have been eligible for an appearance before the board this year. How would I have passed through the eye of that legal needle? I often thought. Exonerating evidence had long been accumulating since 1992. As an innocent man I would have poured my heart out to them with the truth that I was willing to die for. Daily, I was mentally and physically tortured with thoughts that a parole board would consider me in denial and reject my freedom.

Luckily , after years of fighting, with the help of pro bono lawyers, I won my case, which prosecutors never appealed. But the horrible, looming dilemma I faced still pains me.

Martha Coakley, stop lauding bad science

The following opinion by Lee Scheier was published in the Boston Globe on October 16, 2014.

AFTER COMING under attack in an political ad for not doing enough to protect children, Martha Coakley, the Democratic candidate for governor, defended her record. In a large above-the-fold photograph published in the Globe Oct. 3, Coakley is seen standing next to Deborah Eappen, mother of Matthew Eappen, the baby whom Louise Woodward was charged with shaking to death in 1997.

Coakley, the prosecutor in that infamous trial, set up the photo op ostensibly to remind the public of her commitment to protecting children. If so, Coakley must think Massachusetts voters have short memories.

Although Woodward was found guilty of second degree murder by the jury, trial judge Hiller Zobel reduced the sentence to manslaughter and set Woodward free. Zobel’s skepticism of the justice of Woodward’s murder conviction was prescient: Dr. Patrick Barnes, Coakley’s chief expert witness in the case, later publicly renounced his own trial testimony as based on flawed scientific assumptions.

Coakley’s odd invocation of this case demands that we look at the facts. What cannot be lost in all of this political maneuvering is the truth about the Woodward case and all the thousands of shaken-baby cases before and since Woodward. The truth is that Martha Coakley’s deft misuse of science actually came very close to sending an innocent caretaker to prison for life.

At the heart of the Woodward prosecution — and many others like it — is the pseudoscience of the shaken-baby syndrome diagnosis. Anecdotal studies by pediatric neurosurgeon Norman Guthkelch in 1971 and radiologist John Caffey in 1972 and 1974 asserted that the presence of the so-called “triad” — subdural and retinal bleeding plus brain swelling — in an infant constituted certain proof that the last caretaker to hold a baby had “shaken” that child to death. Under Guthkelch and Caffey’s theory, this could be the only cause of death. Because of these studies — and because nearly all shaking cases have no eyewitness — the presence of the triad was the only evidence necessary to prove murder.

In recent years, however, experts have become increasingly skeptical. “The problem lies with Caffey’s level of certainty that subdural bleeding along with bleeding in the eyes could only be caused by shaking,” says Louis Fogg, a professor at Rush University and the former president of the Chicago chapter of the American Statistical Association.

Fogg, who received his doctorate from the University of Chicago in scientific methodology, is an expert in designing and evaluating scientific research. He has concluded: “[Caffey] is manufacturing a degree of certainty that doesn’t exist from his research. A reasonable person can’t look at this research and say it is proof of guilt beyond a reasonable doubt. There are a lot of doubts here. This is not the kind of stuff you can send people to jail for.”

Martha Coakley’s deft misuse of science in the shaken-baby trial actually came very close to sending an innocent caretaker to prison for life.

Fogg goes on to note that all of the many published studies that purport to confirm the validity of shaken baby syndrome are false. “Every study accepts nonscientific evidence as if it is scientific,” he explains.

Doubts about shaken baby syndrome have grown considerably since it has been established that many diseases, medical conditions, short accidental falls, or re-bleeds also manifest the identical “triad” of clinical signs. Indeed, it likely was an injury from a short accidental fall weeks before Matthew Eappen died, which re-bled later — not any supposed shaking by Louise Woodward — that caused his death.

Barnes, the expert Coakley relied on to convict Woodward, is one of the physicians who has questioned the legitimacy of the diagnosis. When asked on PBS’s Frontline in 2011, “If you were called to testify in the Woodward case today what would you say?” Barnes responded, “I would say that you cannot select out, accuse, indict, or convict any particular caretaker based on the medical evidence that we have.”

Perhaps most tellingly, Dr. Gulthkelch himself — one of the scientists who first posited the theory — has since voiced concerns about its application in the criminal justice system.

Nonetheless, in the face of rigorous scientific evidence to the contrary, many in the medical community still claim that shaken baby syndrome is a valid diagnosis because so many within the medical community support it. But science is not a popularity contest. After all, Galileo was the only scientist of his day who believed that the earth revolved around the sun.

And this consensus does nothing to alter the fact that, to this day, there has never been an experiment that proves a causal link between shaking a baby and death. “An association alone between shaking and the triad contains so much inherent doubt that no jury in good conscience should convict on that evidence alone,” says Fogg. “You need strong experimental evidence of causation if you’re going to send someone to prison.”

This lack of strong experimental evidence of causation did not stop Coakley from trying to send Woodward to prison for life. And despite the growing chorus of scientists casting doubt on shaken baby syndrome, such prosecutions continue: In Middlesex County, nanny Aisling Brady McCarthy currently stands accused of shaking 1-year old Rehma Sabir to death. Prosecutors should hang their heads in shame for blindly accepting bad science and bringing these cases to court.

Indeed, Coakley nearly sending a young, innocent woman to prison is nothing to be proud of. It is certainly not worthy of a photo shoot in a political election.

Lee Scheier is an investigative journalist who has written extensively for the Chicago Tribune and many other publications. He has spent the last eight years researching a book on shaken-baby syndrome.

Yet another exoneration demonstrates the desperate need for reform

The following commentary by Rob Schofield was published by the Progressive Pulse on Octobe 17, 2014.

You know something’s dreadfully wrong with your system of criminal justice when the full exoneration of innocent men convicted of heinous crimes keeps happening over and over. Another one occurred in North Carolina today when Willie Womble — a man who has spent 39 of his 60 years on the planet incarcerated for a crime he did not commit — was cleared of a crime that occurred in 1975.

Good lord! How do the still-living people who had a role in such a miscarriage of justice sleep at night?

Obviously, there’s no getting Mr. Womble back his life that the people of North Carolina and their officers and employees wrongfully and tragically stole, but here are a few things that Gov. McCrory ought to consider doing immediately:

1) Ordering the immediate commutation of all death sentences in the state to life in prison,

2) Taking whatever steps are necessary to provide for a dramatic increase in the budget and staffing of the Innocence Inquiry Commission (and maybe the private nonprofit known as the NC Center on Actual Innocence as well) along with the directive that it (they) undertake a review of a vastly larger number of the state’s existing murder convictions — if not all of them, and

3) Announcing that he will no longer approve of any new death sentences in the state until — at a minimum — a complete and full review of every such case has occurred.

NC Innocence Inquiry Commission a lifesaver for innocent, death row inmates

The following opinion by Lyle C. May was published on September 17, 2014 by the Charlotte News & Observer.

On Sept. 2, 2014, after spending 30 years on death row, a travesty of justice was averted when Henry Lee McCollum was acquitted of the 1983 rape and murder of Sabrina Buie. Henry’s brother, Leon Brown, was also acquitted of the rape and released. Had it not been for Brown’s 2009 application to the North Carolina Innocence Inquiry Commission, McCollum would still be on death row.

In fact, had it not been for the connection between the two brothers in the Buie case, the commission would not have reviewed Henry’s part. For some inane reason the commission cannot investigate death penalty cases until a prisoner’s appeals have been exhausted, and the defendant files a claim. The problem with this is when a death row prisoner exhausts his or her appeals, they are executed. How incredibly fortunate for Henry there has been a de facto moratorium on the death penalty in North Carolina since 2007.

This was too close. As it stands, Henry and Leon had their youth stolen from them by overzealous, blind SBI agents, impressionable jurors, ineffective attorneys and a prosecutor who brags about his oratory power to persuade people rather than relying upon the facts or evidence in a case. How many more cases on death row are just like Henry McCollum’s? This is not an aberration, his is the eighth acquittal on North Carolina’s death row.

The difference between the previous seven acquittals and Henry is that an objective commission had a hand in clearing Henry and Leon of any wrongdoing. The first seven had to rely on their appellate attorneys and the minimal resources available to them. One wonders why Henry’s attorneys, after three decades, were incapable of freeing him; or why, with a little bit of digging, exculpatory DNA evidence was so easily found by the commission. These questions may seem complex, but they underline a common problem with many appellate attorneys who represent death row prisoners: The bare minimum is the status quo.

In Henry’s case, the bare minimum in 1991 put him back on death row after a new trial. His attorney tried to coerce Henry to confess to a crime he did not commit. This is inexcusable. With so many people against indigent, intellectually challenged defendants like Henry McCollum, it’s a miracle this man made it home alive. All glory to God indeed, Henry.

Christine Mumma, executive director of the N.C. Center for Actual Innocence, mentioned some lessons learned from the exoneration of Henry McCollum. What the public needs to be aware of is that the horrible circumstances of injustice in the Buie case are a culture in North Carolina death penalty cases, not some isolated event. Maybe, if the Innocence Commission were to work in conjunction with appellate attorneys to defend their clients, 31-year prison terms by innocent men can be avoided. At the very least the commission can demonstrate what it means to be true representatives of justice.

Lyle C. May is a death row inmate at Central Prison in Raleigh. He received two death sentences for the 1997 double murder in Asheville of Valerie Sue Riddle and her son, Kelly Mark Laird Jr.

Darryl Burton: Two recent exonerations cause new concern about the death penalty

The following opinion by Darryl Burton was published on September 16, 2014 by the Kansas City Star.

I was relieved that Henry McCollum and Leon Brown, after waiting over 30 years, finally proved their innocence with the help of DNA evidence and were released from prison in North Carolina.

As someone who personally knows the horror of being wrongfully convicted, it’s hard to celebrate this news. Thankfully these men are free, but they are burdened with the emotional pain of suffering in prison, fearing a possible execution, being vilified by the media, and not knowing for all those years whether the truth would ever come out.

These exonerations mark the 145th and 146th time that an individual has been wrongfully sentenced to death and later found innocent in the U.S. since 1973. So many wrongful convictions have come to light in recent years, in death penalty and non-death penalty cases, that there’s a tendency to grow numb to these injustices.

Since my exoneration in 2008 of a murder I didn’t commit, there have been over a dozen exonerations just in Kansas and Missouri, including that of Reginald Griffin, who was wrongfully sentenced to death and spent 30 years in prison before his release.

We can’t allow ourselves to grow numb to these injustices. The appalling facts in McCollum’s and Brown’s cases cry out for action, and remind us of the urgent need to end the death penalty.

In 1983, McCollum and Brown became the prime suspects in the horrific rape and murder of an 11-year-old girl. The deck was stacked against them from the start. They were young, black, mentally disabled, and also outsiders, having recently moved to North Carolina from New Jersey. Officials focused their investigation on McCollum and Brown after a teenager suggested them as suspects. Scared after hours of interrogation by the police, the two men confessed to the crime just to make the interrogation stop.

They tried to recant at the trial, but that was a losing proposition. They had confessed — case closed. Both were sentenced to death and, because the crime was so horrible, most were certain that justice was done. The Supreme Court refused to review the case, and Justice Antonin Scalia — without a shred of doubt — singled out McCollum as the prime example of someone deserving the death penalty. As late as 2010, McCollum’s mug shot appeared on campaign mailers attacking anyone who might be “soft on crime.”

At all levels of government, everyone was certain that these men were monsters deserving to die. But they were all wrong. New DNA evidence pointed to another individual with a record of sexual assaults. Finally the world knows what McCollum and Brown knew all along — they are innocent.

If this case teaches us anything, it teaches the importance of humility in our criminal justice system. In the aftermath of grave crimes, like those that have recently rocked the Kansas City area, there is understandable anger and a desire for the death penalty. But executions have no place in an imperfect system that sometimes convicts the innocent.

In Kansas and Missouri, it is at our own peril if we fail to act in light of injustices like those suffered by Henry McCollum and Leon Brown. Both states need to end the death penalty — and soon.

Darryl Burton was wrongfully convicted of murder in Missouri on the basis of perjured testimony and spent 24 years in prison before being exonerated and released. He currently is pursuing his Master of Divinity at St. Paul School of Theology and serves as a pastor intern at United Methodist Church of the Resurrection in Leawood. To learn more about him, go to Dabex.org.

Exonerating the innocent: Ohio’s attorney general must start tracking, and learning from, DNA exonerations

The following editorial was published by the Toledo Blade on September 14, 2014.

Ohio Attorney General Mike DeWine started calling for old DNA evidence in late 2011, encouraging Ohio’s 800 law enforcement agencies to clear their testable sexual assault evidence shelves.

It was a prudent and long overdue move. Over the past two decades, DNA technology has become an invaluable tool for law enforcement. It was shameful that so many vital rape kits were gathering dust in police property and storage rooms.

Since then, the Bureau of Criminal Investigation has tested more than 4,700 previously untested rape kits — many 10 to 20 years old. Of those, more than 3,100 have been tested since Oct. 1.

Mr. DeWine has touted the fact — and rightfully so — that, thanks to his initiative and follow-up work by local law enforcement, more than 200 people have been charged for sexual assaults they allegedly committed years ago. Arresting people who otherwise would not have been caught for horrific crimes is something the attorney general’s office ought to be proud of.

But DNA evidence doesn’t just catch the guilty. It also exonerates the innocent. This month, for example, North Carolina’s longest-serving death row inmate, Henry McCollum, and his younger half brother walked out as free men, three decades after they were convicted of raping and murdering an 11-year-old girl.

A judge overturned the convictions after another man’s DNA, found on a cigarette butt left near the body of the slain girl, contradicted the case put forth by prosecutors. No physical evidence ever connected the convicted men to the crime, but police had coerced confessions from the two when they were scared teenagers.

Mr. McCollum likely would have been put to death years ago, if not for lawsuits that have blocked executions in North Carolina since 2006.

Such horrific miscarriages of justice occur more often than most people realize. When they are righted, they are another cause to celebrate the technology that made it possible. They are also an occasion to learn what went wrong in the case and correct flawed policies and procedures.

Unlike new evidence that results in convictions and arrests, however, the attorney general’s office does not track cases in which DNA evidence exonerated suspects or freed prisoners.

The Ohio Innocence Project has helped free 17 people, largely with DNA evidence. This year in Ohio, for example, Dewey Jones was exonerated after DNA evidence proved his innocence. A Summit County judge dismissed aggravated murder and robbery charges against Mr. Jones, who spent 20 years in prison.

Such DNA exonerations are as important as those cases that result in arrests and convictions. In fact, they are more important, given the underlying principles that gird the U.S. criminal justice system. They include the presumption of innocence until judged guilty beyond a reasonable doubt. Those principles are based on the idea that convicting the innocent is an even greater travesty than absolving the guilty.

Even so, despite those precious safeguards, inept indigent defense systems, faulty eyewitness identifications, false coerced confessions, and numerous other flaws continue to put innocent people in prison, sometimes for life.

When righted by DNA evidence, such cases can provide the attorney general’s office, and law enforcement agencies across the state, with textbook examples of what can go wrong during a suspect’s arrest, trial, and conviction. Likewise, they can suggest ways to improve the system. That’s why it’s imperative that the Ohio Attorney General’s office start to track and study DNA exonerations.

Law enforcement agencies are often notoriously reluctant to acknowledge mistakes, partly because they believe they undermine public confidence in the system. But such mistakes are too important to ignore, and learning from them would only increase the people’s faith in the criminal justice system.

Police and prosecutors must acknowledge and use the enormous benefits of DNA technology, either way they tip the scales of justice.

Lawrence Hellman: How many innocent people are in Oklahoma prisons?

The following editorial by Lawrence Hellman was published by NewsOK.com on September 13, 2014.

Oklahoma’s prison population is about 26,000. Some of the inmates are innocent of the crimes for which they were convicted.

How do we know?

Throughout America, innocent people are being exonerated at an alarming rate on the basis of new evidence of innocence. A record 91 exonerations occurred in 2013. Since 1989, there have been more than 1,400 exonerations in America, including 27 in Oklahoma.

So we know that Oklahoma’s criminal justice system has made some mistakes. Not a lot of mistakes, but some serious ones. It is sobering to learn that eight of Oklahoma’s exonerees were on death row at the time of their release from prison.

It’s simply unrealistic to believe that all of the mistakes have been discovered. For one thing, many years can go by before the mistakes come to light. The average time between conviction and exoneration for the 27 Oklahoma cases that we know about is more than nine years. In addition, until recently, there was no organization in our state dedicated to reviewing inmates’ claims of innocence. Now there is.

The Oklahoma Innocence Project at Oklahoma City University School of Law began operations in 2011. Since opening, the project has received more than 1,000 requests for assistance. Of course, not all of these claims of innocence are valid or capable of being established. With its small staff — supported entirely from private donations — it will take years to review the cases. Hundreds of inquiries still await an initial review.

So far, a few dozen cases have been identified that warrant further investigation. Legal actions seeking judicial relief have begun for two clients whose claims have merit. Pursuing these cases will be a slow and deliberate process — as it should be. More cases will be filed as resources allow.

How many innocent people are there in Oklahoma’s prisons? The courts will answer this question over the coming months and years.

Hellman is executive director of the Oklahoma Innocence Project. The project’s benefit, “A Night for the Innocent,” is Sept. 26 at Will Rogers Theater. For information, go to http://innocence.okcu.edu/ or call (405) 208-7101.

Freeman, SD Courier: Another powerful argument against the death penalty

The following editorial was published by the Freeman, SD Courier on September 9, 2014.  Freeman Courier editorials reflect the opinion of news editor Jeremy Waltner and publisher Tim L. Waltner.

Four months ago, a Courier editorial called into question the practice of capital punishment. Problems with the execution of Clayton Lockett in McAlester, Okla., April 29 prompted the call to abolish the death penalty.

There was outrage over Lockett’s botched execution — a collapsed vein interrupted the process — but the desired end result was achieved when about half an hour after it was halted, Clayton Lockett died of a heart attack.

That incident led to widespread calls to halt lethal injections as a method of capital punishment until the process becomes better understood and more transparent.

But, as the May 7 editorial noted, that outrage is misplaced. Either we embrace putting someone to death as the ultimate act of justice — the brutality of the method be damned — or the United States joins other civilized nations around the world that have abolished the death penalty.

Last week there was another powerful example of why abolishing the death penalty is the right course to pursue.

Henry McCollum and Leon Brown were arrested in 1983 and charged with the rape and murder of 11-year-old Sabrina Buie in Red Springs, N.C.

Half-brothers, McCollum and Brown were just 19 and 15 at the time. There was no physical evidence connecting them to the crime scene. But after lengthy police interrogations both confessed to the crime.

Although they recanted shortly after, they were convicted — largely on the basis of their false confessions.
Until last week, McCollum, now 50, had been on death row for 30 years, longer than anyone else in North Carolina history.

Until last week, Brown, now 46, was serving a life sentence.

Today McCollum and Brown are free men. DNA evidence implicated Roscoe Artis, a known sex offender whom the police had not investigated, despite the fact that he lived next to the crime scene. Artis is serving a life sentence in a North Carolina prison on a separate conviction, a rape and murder that happened less than a month after Buie’s rape and murder.

The convictions of McCollum and Brown were vacated last week and the two men were ordered released; they were freed from prison last Wednesday.

This turn of events is the result of an investigation by the North Carolina Innocence Inquiry Commission that found no DNA evidence at the crime scene that could be traced back to McCollum or Brown.

While justice was finally served, there are lots of questions including, why do innocent people confess to something they didn’t do.

In his book Convicting the Innocent (published five years ago), Brandon Garrett of the University of Virginia School of Law noted that 40 of the 250 wrongful convictions happened when innocent defendants confessed to crimes they did not commit.

In his study, Garrett found 14 of the 40 were mentally disabled or borderline mentally disabled, and three more were mentally ill. Thirteen of the 40 were juveniles. Nearly all were interrogated for more than three hours at a sitting. Seven described their involvement in the crime as coming to them in a “dream” or “vision.” Seven were told they had failed polygraph tests.

McCollum and Brown certainly fit the profile; they were teenagers and were considered mentally disabled; their IQs have consistently tested in the 50-60 range.

“It’s terrifying that our justice system allowed two intellectually disabled children to go to prison for a crime they had nothing to do with, and then to suffer there for 30 years,” said Ken Rose, a lawyer with the Center for Death Penalty Litigation.

“It’s impossible to put into words what these men have been through and how much they have lost.”

The sobering reality is that the loss could have been worse. Let’s not lose sight of the fact that McCollum was on death row. While his exoneration can’t restore the 30 years he lost in jail for something he did not do, at least he can live the rest of his life in relative freedom.

It’s difficult to find a stronger argument against the death penalty than the reality that Henry McCollum, a mentally challenged young man, might well have been put to death for something he didn’t do, had it not been for the dilligence of people who saw the injustice in how the case against him and Leon Brown had been handled.

As noted here in May, the United States should join every other Western nation and bring an end to using the death penalty.

Patience is no virtue on MSOP injustice. A federal judge seems willing to give Minnesota more time. There's scant evidence it will be used well.

The following guest essay by D. J. Tice was published by the Minneapolis Star Tribune on August 2, 2014.

For many years, critics of the Minnesota Sex Offender Program have worried that this state may be guilty of cruel injustices. 

They’ve worried that Minnesota’s sweeping, inconsistent system for dumping sex offenders who have completed prison sentences into so-called “treatment centers” may be imposing retroactive life sentences on some “clients” who pose no serious threat to the public, while giving them no effective treatment. 

As of this summer, this is no longer a worry. 

Now it’s a fact. 

It took experts appointed by a federal court about two months to find what Minnesota officialdom has been unable to find in two decades — people buried alive in MSOP who have no earthly business there and should be released or transferred to another program. 

And they’ve barely begun to look. 

Unfortunately, a combination of legal complexities and deference toward state officials has caused even U.S. District Judge Donovan Frank to let injustice continue awhile longer. Earlier this month,Frank declined to release or transfer the MSOP inmates his experts had asked him to liberate. Instead, he ordered an expedited trial of class-action claims that the entire MSOP program is unconstitutional. 

About 20 states have “civil commitment” programs like Minnesota’s. Most were enacted in the crime-plagued early 1990s out of legitimate fears that some habitual sex offenders are too dangerous to be released. But many of the other states with such programs regularly review clients’ cases and have developed less-restrictive forms of supervision for offenders who are less dangerous or are making progress in treatment. 

In Minnesota, attempts to contain or reform MSOP have repeatedly become politicized. The result is that the state boasts the largest per-capita population of committed offenders in the nation (nearly 700, costing about $120,000 a year each), in a program offering nothing but prison-like incarceration and no serious path toward success in treatment and release. Just two clients have emerged in the program’s whole history. 

Only last winter, Gov. Mark Dayton released a letter to his Department of Human Services, which runs MSOP, noting that he likes the program just fine the way it is and ordering the department to abandon its efforts to move some clients toward release. He cited “gamesmanship” by his political opponents as the reason. 

Judge Frank seems rather less sanguine about MSOP. In February, as part of the class-action suit challenging the program’s constitutionality, he put four experts to work examining MSOP — including a sample of individual client files. They quickly brought forward two cases they wanted the judge to see right away. 

One involves 24-year-old Eric Terhaar, who has been in MSOP for five years on the basis of offenses committed before he was 15. Insisting that a juvenile record of this kind should be viewed differently than adult sex crimes, the court experts unanimously insisted that “there is little evidence to suggest that Mr. Terhaar is a dangerous sexual offender … .” He should be “unconditionally discharged,” they said. 

The other case brought to the judge is that of Rhonda Bailey, 48, locked inside MSOP since 1993 as the program’s only woman. Suffering an “intellectual disability,” a deeply troubled victim of abuse and trauma since childhood, Bailey, the judge wrote, is being “housed on the St. Peter campus of MSOP as the only female on a unit of all male high risk sexual offenders.”

The court’s experts, unanimously, have “exceptionally grave concerns” about Bailey’s “current housing and treatment scenario.” They declare her situation “unprecedented in contemporary sexual offender treatment and management … .” 

This “unprecedented” achievement isn’t the sort of distinction Minnesota usually boasts of. The experts have a notion that Bailey, while clearly needing treatment and supervision, might do better in “a facility where she can receive care and treatment that is sensitive to both her gender and her clinical presentation.” 

Suddenly, the state seems to think so, too. Confronted with the Bailey and Terhaar cases in hearings before Frank this summer, state officials are now apparently scrambling to find an alternative treatment setting for Bailey and to move Terhaar toward provisional release. (It’s also worth noting that lately state courts have been scrutinizing MSOP commitments more rigorously.) 

For now, Judge Frank seems willing to be patient while the state’s processes unfold. On Aug. 11, he declined to find continued confinement of Terhaar and Bailey unconstitutional, but said he would revisit the questions if the state’s efforts prove inadequate. 

Meanwhile, Frank wants to get on with the trial in the broader class-action case. Last week, he set Feb. 9 as the trial date. 

“It is obvious,” Frank wrote in his Aug. 11 order, “that but for this litigation, Terhaar … would likely have languished for years in the prison-like environment of MSOP-Moose Lake without any realistic hope of gaining his freedom. And of course it is of great concern to the Court that this may not be an aberrant case [but] symptomatic of a larger systemic problem. … This concern is heightened by the experts’ opinion about the grossly inadequate — even shocking — treatment of Bailey … .” 

There is as yet no explanation, the judge wrote, of “how this troubling state of affairs came about.” 

That one’s easy, your honor. It came about because too many judges over too many years have been too patient waiting for Minnesota’s politicians to do the right thing.

Robert A. Rosenthal: Miscarriage of compensation

The following commentary by Robert A. Rosenthal was published on August 19, 2014 by the Providence Journal.

Michael Morton’s wrongful conviction in the death of his wife and his 25-year incarceration is told in his just-published book “Getting Life: An Innocent Man’s Journey from Prison to Peace.” His traumatic experience of discovering that his wife had been brutally murdered, followed by a guilty verdict based on shoddy police work, was passionately recounted by Nicholas Kristof in The New York Times a few weeks ago.

In it, Kristof recounts the miscarriages of justice suffered by not only Mr. Morton but many others, as carefully documented by the Innocence Project — an organization that works diligently to provide legal services to help exonerate the wrongfully convicted. Clearly, the more than 218 cases of those exonerated for crimes they did not commit speaks to the simple conclusion, as Morton contends, that “our criminal justice system is profoundly flawed.”

It has been well documented that such miscarriages of justice often disproportionately impact minority populations — particularly blacks and Hispanics. But such inequities are only compounded by a little-known fact regarding the manner in which these exonerated individuals are compensated for the miscarriage of justice upon their release from prison.

According to compensation laws in Texas, Mr. Morton is eligible to receive approximately $2 million for the time he was denied his freedom. The State of Texas, as per a 2011 amended law, stipulates that a wrongfully convicted person is entitled to $80,000 per year of wrongful incarceration. Colorado and Florida, as well, have laws providing comparably liberal compensation packages.

Imagine if he had served time in the Illinois criminal justice system. His compensation would have amounted to a mere $199,150, a sum provided to anyone wrongfully imprisoned for any period in excess of 14 years. This would convert to, in the case of Mr. Morton, compensation on an annual basis of only $8,000, or 10 percent of what the Texas law allows.

Or, take the case of Michael Williams, falsely convicted of rape at age 16, and sentenced to life in prison. Four years following his release from prison at age 40, he was paid $150,000 by the state — just over $6,000 for each year of his wrongful incarceration.

While state compensation laws vary widely, only about half of the states have statutes compensating the wrongfully convicted. This is partly responsible for the fact that, of the 218 people exonerated by DNA testing, only about 50 percent have received any form of compensation to date. The recommended federal level of compensation is currently $50,000 per year. Sadly, of those exonerated, only one in five of those compensated under state laws received compensation equal to or greater than the federal standard.

While some states also provide various services such as job training, reintegration services, tuition assistance, counseling and other such services, there remains the difficulty of getting society to believe that you are actually innocent or, at least, as Mr. Williams told The Wall Street Journal, “not damaged.” He added: “It’s been lonely, very lonely.”

Financial compensation cannot alter these prejudices. To suggest that Mr. Morton was lucky to be imprisoned in Texas would be heartless and perhaps even hurtful. I suspect few would be willing to trade 25 years of freedom for any sum of money. Nevertheless, the extraordinarily wide differential of the dollars given to the exonerated speaks to an undercurrent of the inequality we currently place on the value of lost freedom or life itself.

A question that must be asked is whether the right of the state to determine how the wrongfully convicted are compensated severely infringes upon the rights of those who are wrongfully convicted. The injustice that begins with a wrongful conviction, in too many cases, seems to extend well beyond the time that one’s freedom is granted.

Robert A. Rosenthal is a professor of economics at Stonehill College in Easton, Mass. He studies the value of economic loss.

Can a Jury Believe What It Sees? Videotaped Confessions Can Be Misleading

The following opinion by Jennifer Mnookin was published by the New York Times on July 13, 2014.

LOS ANGELES — LAST week the F.B.I., the Drug Enforcement Administration and other federal law enforcement agencies instituted a policy of recording interrogations of criminal suspects held in custody. Only a minority of states and local governments have a similar requirement, but the new rule, which applies to nearly every federal interrogation, will most likely spur more jurisdictions to follow suit. It’s not far-fetched to think that such recordings may soon become standard police practice nationwide.

Supporters of the practice present recordings as a solution for a host of problems, from police misconduct to false confessions. But while there are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities that make them useful — their seeming vividness and objectivity — also risk making them misleading, and possibly even an inadvertent tool for injustice.

Support for electronic recording has been accelerating in recent years, and its backers now come from all sides of the criminal-justice process. Though some in law enforcement remain critical of the idea, firsthand experience with recording tends to turn law enforcers into supporters — it eliminates uncertainty about police conduct and lets investigators focus on the interrogation rather than taking detailed notes.

Likewise, criminal prosecutors find that when a defendant confesses or provides incriminating information, the video offers vivid and powerful evidence. At the same time, it aids defendants because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation, and documents illegitimate behavior if and when it does occur. And a recording provides judges and juries with information about what took place in a more objective form.

Given this chorus of support, what’s not to like?

The short answer is that, according to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it.

In a series of experiments led by the psychologist G. Daniel Lassiter of Ohio University, mock juries were shown exactly the same interrogation, but some saw only the defendant, while others had a wider-angle view that included the interrogator. When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.

Experiments like these feed a larger concern: whether the police, prosecutors, defense lawyers, judges or jurors can actually tell the difference between true and false confessions, even with the more complete record of interactions that recorded interrogations provide.

We know that false confessions really do occur, even in very serious crimes, and probably more frequently than most people expect. But why? We know something about certain interrogation techniques, as well as defendant vulnerabilities like youth or mental disability, that may create heightened risks for false confessions. But we don’t yet know enough about the psychology of false confessions to be able to accurately “diagnose” the reliability of a given confession just by watching it.

The problem is that many of the red flags that frequently occur in false confessions — like unusually long interrogations, the inclusion of inaccurate details, or the police “feeding” some crime-related information to the suspect — can also occur in the confessions of the guilty. This means there’s no surefire way to tell false confessions and true confessions apart by viewing a recording, except in extreme cases.

And yet by making confessions so vivid to juries, recording could paper over such complications, and sometimes even make the problem worse. The emotional impact of a suspect declaring his guilt out loud, on video, is powerful and hard to dislodge, even if the defense attorney points out reasons to doubt its accuracy.

This doesn’t mean that mandating recording of interrogations is a bad idea. Routine recording will serve to make them fairer and less coercive — and this might well help reduce the number of false confessions.

But we need to recognize that by itself, video recording cannot stop all the problems with interrogations, prevent false confessions or guarantee that we will spot them when they do occur.

We are still a long way from fully understanding why the innocent confess during interrogations, and why we believe them when they do — regardless of what we see on camera.

Jennifer L. Mnookin is a professor of law at the University of California, Los Angeles.

Darryl Howard will be tried again

The following opinion by Radley Balko appeared in the July 11, 2014 Washington Post.

In March, I posted a long report on a likely wrongful-conviction case in Durham, N.C. Darryl Howard was convicted of killing a mother and her daughter based entirely on testimony from eyewitnesses, many of whom have since changed or recanted their stories. More important was what was not at Howard’s trial — critical evidence pointing to another killer. Though there’s ample evidence that the two women were sexually assaulted before they were killed, the prosecution insisted that wasn’t the case, likely because DNA testing on the semen found in one of the women excluded Howard. (Testing on the DNA found in the second woman since then also excludes Howard.)

In May, North Carolina Superior Court Judge Orlando Hudson overturned Howard’s conviction with a blistering opinion that excoriated the police and prosecutors for withholding the evidence and for making false statements to jurors. The prosecutor in the case was then-Assistant District Attorney Mike Nifong, who of course would go on to win election as district attorney, then be removed from office after the Duke lacrosse debacle for withholding evidence and making false statements to a judge. Nifong’s protege and successor Tracey Cline was later removed from office herself, again after multiple allegations of misconduct, including withholding evidence.

I noted in the original article that the case could have been an opportunity to review prior convictions in the perpetually troubled Durham DA’s office. An upcoming election also presented an opportunity for Durham voters to put some new blood in office. Instead, the voters elected Roger Echols, an heir to the Nifong legacy. Tracey Cline was Nifong’s top deputy. Echols was Cline’s.

Not only is the DA’s office trying Howard again, they’re also fighting to make sure Howard remains in prison until that trial happens. Fortunately, Hudson isn’t having any of it.

Judge Orlando Hudson said Friday he intends to release 52-year-old Derrick “Darryl” Howard on unsecured bond unless he’s blocked by a prosecution appeal to the state Court of Appeals.

It’s unclear when a ruling might be issued, but Howard’s defense attorney, Jim Cooney, said it could be as soon as Friday.

Hudson ordered a new trial in May after ruling there was no physical evidence connecting Howard, who is serving an 80-year prison sentence, to the 1991 drug-related deaths of Doris Washington and her 13-year-old daughter, Nishonda.

Howard was convicted of two counts of second-degree murder in 1995. . . .

Hudson called the case against Howard by former Durham prosecutor Mike Nifong “horrendous.” . . .

Howard’s wife of 15 years, Nannie Howard, said after the hearing that she’s always had faith in her husband and is hopeful that he’ll be released.

“I’m overjoyed, happy, elated. I’m nervous – all those wonderful emotions that come to play in a moment like this,” she said. “But at the end of the day and through it all, I knew my husband was innocent and I am just so thankful beyond words that I can express right now that he is on his way home.”

Howard can’t go home just yet, though. The prosecution has won a temporary stay while it appeals the decision to grant Howard bond.

You can’t help but wonder what sort of calamity needs to happen for things to change in Durham.

Why Won't California Release Innocent Men from Prison? Gov. Jerry Brown has the power to exonerate them, but he won't use it.

The following opinion by Steven Greenhut was published by Reason.com on July 4, 2014.

SACRAMENTO — Gov. Jerry Brown and the legislature have been cutting down on prison overcrowding to comply with a federal court order, thus leading to a "realignment" policy that moves inmates from state-run prisons to county jails and a policy that may result in some early releases.

Whatever one thinks of the governor's handling of this matter, it's hard to understand why he hasn't pursued his prison-reduction efforts by harvesting some low-hanging fruit – i.e., releasing from prison those inmates who almost certainly are not guilty of the crimes for which they've been convicted. The governor, after all, has the power to grant clemency and pardons.

Why not act on the evidence surrounding the so-called California 12?

Those are the 12 California prison inmates whose cases have been investigated by the California Innocence Project, a legal clinic at the California Western School of Law in San Diego. The group has secured the exoneration of 11 California inmates. U-T San Diego in March reported on its client, Uriah Courtney, who served eight years of a life sentence for rape before DNA evidence pointed to the real perpetrator.

Each year, the school's legal team receives more than 2,000 claims from inmates. It brings to mind the line from the prison movie, "The Shawshank Redemption," in which one of the characters says, "Everybody's innocent in here. Didn't you know that?" But while many people claim to be innocent in prison, some of them actually are innocent. And while the numbers might not be large, the sense of injustice is overpowering.

"I'm pretty darn cynical," the project's director, Justin Brooks, told me after a Friday rally at the Capitol steps. Of the thousands of cases his team reviews, they usually end up with one or two. These are cases where he is 100 percent convinced of the inmate's innocence. But even when the evidence is strong, it's hard to get action on the cases.

Prosecutors aren't always cooperative when it comes to reviewing some of their possible past mistakes, although Brooks says that San Diego County District Attorney Bonnie Dumanis has been an admirable exception. She always sits down and looks at the evidence.

But the courts are reluctant to reopen a case unless there is some new piece of evidence or a new technology (i.e., DNA), he explains. If, for instance, the defense simply did a bad job or didn't call a witness who could have exonerated the defendant, then it's nearly impossible to get a new hearing.

For instance, one of the California 12 is Quintin Morris, who has served 17 years in prison for three counts of attempted first-degree murder, even though another man later admitted the crime. The court found that such a confession should have been presented at the trial and rejected efforts to free him.

As the Innocence Project explains on its website, "A federal judge noted that his hands were tied and he could not reverse Q.T.'s conviction because there were no 'legal avenues to do so.' The judge expressed serious concern over whether Q.T. committed the crime and suggested that Q.T. specifically apply for a pardon from the governor."

All of the California 12 cases are equally disturbing, and while Brooks says his group is pursuing legal avenues on all of them, their best hope remains petitioning the governor for pardons, as the federal judge has recommended in the Morris case.

So last year, Brooks and two colleagues marched 712 miles to the Capitol to get some publicity for their cause. And after another year of inaction from the governor, they came back to the Capitol and again tried to spark some publicity.

"We've had several conversations with the Innocence Project and their materials are being reviewed," said the governor's office, in response to my inquiry.

On the Capitol steps, I talked to Tim Atkins, who spent 23 years in prison for murder before being released after the Innocence Project found that the conviction was based on a faulty eyewitness report. He described his nightmare — one that finally ended with an apology and exoneration from the same judge who had sentenced him years ago.

"Any kind of injustice affects us all," Atkins said. Maybe if the cost-saving argument doesn't reach the governor, a simple ethical one might.

Steven Greenhut is the California columnist for U-T San Diego.

‘Presumption of innocence’ fading away

The following opinion by Michael Swickard was published on July 2, 2014 by the Albuquerque Journal.

“The media’s the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses.”

— Malcolm X

Several times a week there is something in the media that makes me queasy. Someone will have been arrested, so the media give all the details of the crime in such a way that for most people there is no other conclusion than the person is guilty. Every detail is on the front page for all to see, even those details that the police plant in the press to move the case forward.

The presumption of innocence is one of the founding principles of our country. But over the years, citizens have lost that presumption. In the Old West, often the low-down dirty varmint was hung and then given a trial. Example: at Boot Hill in Tombstone, Ariz. is this marker:

“Here lies George Johnson hanged by mistake 1882.

He was right, we was wrong,

But we strung him up, and now he’s gone.”

Several times a month I protest the way the media frame the story such that guilt can be the only conclusion. I protest to the media that they only carried the prosecution’s message. They are usually huffy about any criticism since everyone knows that when someone is arrested, they are guilty.

Not the issue

They answer the defendant will get his or her day in court. But that is not the issue. The jury pool is contaminated by the media framing the story from the prosecution’s point of view. The media often are intimidated by the police and if they do not play ball, so to speak, they are frozen out of the information loop.

Further, as some of us remember, there have been several seemingly iron-clad cases against citizens that subsequently turned out to be incorrect. What is remembered is that the person was handcuffed and perp-walked into the jail on nighttime television. It is rarely remembered that the person was really innocent.

Other times the police are fishing and the media work hand-in-hand, such as the attention paid to the boyfriend of Katie Sepich, a Las Cruces woman murdered in 2003. The boyfriend turned out years later to be completely innocent. But he was the number-one suspect for a while. The media cried foul when he hired an attorney… whispering only guilty people do that. Again, he was completely innocent.

Arrest is big news

The arrest is big news. We citizens hear of the charges on the front page with all the personal details, including the name of the arrested person’s dog. Story after story is published that gives the details of the facts of the case over and over again with no prosecution stone left unturned. No exculpatory evidence is mentioned.

Then, the story changes for some citizens and we learn they are innocent of the charges. But many Americans do not see the clearing of innocent citizens since the story of innocence is usually published in the middle of the newspaper next to the bookmobile schedule.

Again, what we are talking about is the presumption of innocence. This is an American legal principle that requires our government to prove the guilt of the defendant, and even more importantly, it relieves said defendant of any burden to prove his or her innocence. If someone decides not to defend themselves against charges, they are still presumed innocent unless and until convicted of the crime. At least that is the theory.

Haste to be first

One of the problems I am seeing is the reporter’s haste to be the first with the story, right or wrong.

The problem is that journalists no longer consider that they are in the middle of a story; rather, they become, in effect, junior policemen because that is where the information is initially. And again, the police and prosecution play the journalists as far as they can to win their case.

Perhaps the Constitution is dead; perhaps there is not even a First Amendment.

Perhaps the journalists who rush to judgment will find themselves one day on the wrong side of the law and truth and the presumption of innocence.

(Michael Swickard hosts the syndicated radio talk show “News New Mexico” from 6 to 9 a.m. Monday through Friday on a number of New Mexico radio stations and through streaming. Email: michael@swickard.com)