Daily Herald calls on Alvarez to explain delay in Laquan case

The following editorial was published by the Chicago Daily Herald on November 28, 2015.

Let us put this succinctly: Overnight -- or more pointedly, over the course of 13 months -- Cook County State's Attorney Anita Alvarez has lost virtually all credibility, and the onus is on her not only to restore it but to explain why she should not be expected to resign.

Her resignation is what the National Bar Association called for on Wednesday after the city of Chicago finally released the now-infamous video showing a white police officer, identified by authorities as Jason Van Dyke, gunning down black teenager Laquan McDonald in October 2014.

Alvarez's office filed murder charges against Van Dyke on Tuesday, and a few hours later the city released the video it had sought to suppress.

"It's unacceptable that it took over a year to file these charges against officer Van Dyke," said Benjamin Crump, president of the bar association of predominantly African-American lawyers, judges and educators. "Not only did it take a year to file these charges, but Van Dyke was able to continue in the capacity of a police officer during this delayed investigation."

We concur with Crump's observations, as they were reported by Mashable. The long delay in prosecuting this case is one of the more inexplicable aspects of a tragic police shooting that in itself defies explanation.

The reality is, every aspect of this case is troubling. Earlier this year, the city -- with the blessings of Mayor Rahm Emanuel and the city council -- reached a $5 million settlement with Laquan's family.

That settlement came without a lawsuit, despite the fact that Laquan was a ward of the state, and with an agreement to seal the dash-cam videos from public release.

But the most stunning aspect of that settlement is this: Even while the city was paying out $5 million, no one was filing charges against the officer who was identified as pulling the trigger without any apparent cause or justification.

Nothing adds up in this bizarre, cynical and unconscionable collaboration of injustice.

Emanuel and Police Superintendent Garry McCarthy also share culpability here, to be sure, but Alvarez is the chief criminal justice authority in the county, and we have expected so much better from her. We were the first major newspaper to endorse her when she ran for state's attorney for the first time in 2008. We enthusiastically endorsed her for re-election again in 2012.

But in this case, she disappoints. She disappoints not just us, but the public she has vowed to serve. Her explanation for the delay in prosecution has so far been circumspect. She has attributed it to collaborations with federal authorities.

"While I understand there may be questions or frustrations about the length of time of the investigation," Alvarez said in a prepared statement on Wednesday, "I want to assure citizens that my office took the necessary time that was required to conduct a thorough and comprehensive investigation and to gather all possible evidence in order to ensure that we have built the strongest case possible so that justice can be served for Laquan and his family."

We, the citizens, are not assured. Her words so far ring hollow.

Should she choose to remain on the ballot, Alvarez will be up for election again next year. One of her challengers, former prosecutor Kim Foxx, put it this way in an interview with Slate:

"This was what we would consider to be a slam dunk. It's not a matter of whodunit. You know who did it. You had a videotape and a vantage point that clearly shows where Laquan was in relation to the officer. You had eyewitnesses, both civilian and police. You had the autopsy report, which was available within days. So this wasn't difficult."

We, the citizens, say this: What Foxx says makes much more sense than what Alvarez has so far said.

Alvarez owes all of us a detailed explanation for the 13 months it took to bring charges. If not, she owes us her departure.

Does innocence matter?

The following commentary by Joel Freedman was published by the Canandaigua, NY Daily Messenger on November 14, 2015.

    Brentnol Britton wrote to me while serving a nine-year sentence on allegations he hurled a pot of boiling water at his former girlfriend, striking her in her face. In all likelihood, Britton was wrongly convicted. After he arrived in prison in 2004, the alleged victim’s own family revealed she told them she scalded herself on her own arm and hand and injured her own lip with a metal spoon to frame Britton and try to get possession of their home.

    The woman reportedly told others she suspected Britton was unfaithful to her. Britton, after passing a privately administered polygraph examination, passed another polygraph test arranged by the Queens County District Attorney’s Office. The District Attorney’s Office offered to help Britton get out of prison, but only if he would plead guilty in exchange for a time-already-served prison sentence. A Nov. 23, 2005, New York Post story about this case was captioned “In hot water — scald ‘fake’ jailed beau.” After Britton refused this “deal,” the DA’s Office fought successfully to keep Britton in prison.

    While DNA testing can uncover stone-cold proof of innocence — since 1989 there have been several hundred post-conviction DNA exonerations in the U.S. — most wrongful convictions aren’t DNA cases. And when there is biological evidence available for DNA testing, prosecutors often fight hard to conceal or prevent disclosure of potentially exculpatory evidence.

    U.S. Sen. Ted Cruz, R- Texas, a presidential aspirant, believes in the death penalty while also believing that “critical to supporting the death penalty is ensuring that we vigorously protect the innocent.” But actual innocence doesn’t matter to some prosecutors.

    Case in point, the following exchange occurred when a Missouri death row inmate attempted to present newly discovered exculpatory evidence: “Are you suggesting even if we find Mr. Amrineis actually innocent, he should be executed?” said the Missouri Supreme Court judge. “That’s correct, your honor,” said the assistant state attorney general.

    I have corresponded with Fred Weichel for 33 years. In 1981, Weichel was sentenced to life imprisonment without possibility of parole after being wrongly convicted of a murder in Braintree, Massachusetts. Space won’t allow me to discuss Weichel’s case in detail, so please read my article, “Fred Weichel asks: whatever happened to truth and justice?” Justicia, July-August 2006, accessible online. In recent years, the Braintree police chief wrote to the Norfolk county district attorney saying that, after reviewing Weichel’s case, he believes the eyewitness identification of Weichel was unreliable and that he has serious doubts that Weichel is guilty. Michael Ricciuti and other attorneys with the Boston law firm K & L Gates, assisted by the New England Innocence Project, are fighting to get Weichel his long-overdue freedom.

    It is also true that some probably guilty defendants are acquitted or succeed in having their indictments dismissed. I believe Monroe County Judge James Piampiano erred when he made a decision that prevents any further homicide-related charges from being brought against Charlie Tan in connection with the shooting of his father, Liang Tan. Piampiano should have allowed another trial for Tan because there really is sufficient evidence to allow a new jury to try to reach a unanimous verdict.

    While the problem of wrongful convictions is certainly not the only problem in our criminal justice system, let’s always keep in mind what Justice Learned Hand wrote 100 years ago: “Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.”

    For the wrongly convicted, it is a continuing nightmare.

Opinion: No one should be in prison based on debunked science

The following editorial by Joshua Tepfer was published by the Chicago Sun-Times on October 14, 2015.

In 2009, the National Academy of Sciences questioned the reliability of many “scientific” tests routinely used in criminal investigations and prosecutions. In its 300-page report, the academy said many of the tests, such as hair microscopy or bite mark analysis, had not “been exposed to stringent scientific scrutiny” and that “faulty forensic science” has “contributed to the wrongful conviction of innocent persons.”

Illinois needs to re-examine all cases in which possibly innocent individuals remain incarcerated on the basis of debunked science.

The academy’s report, which followed four years of study by a blue-ribbon committee, spurred some jurisdictions and law enforcement agencies elsewhere across the country into action.

The U.S. Justice Department and Federal Bureau of Investigation, for example, have admitted that examiners gave flawed testimony regarding hair comparison analysis in almost all trials over a two-decade period before 2000, and a review of thousands of long-ago closed criminal trials was launched.In some cases, the review has led to exonerations, such as that of Santae Tribble, from DNA testing of the hairs previously “matched” to the convicted defendant. Evidentiary hearings are starting to be held in other cases, including for George Perrot in Massachusetts, where the hairs or DNA testing are not available. In some instances, as in the Charlotte, N.C., case of Timothy Scott Bridges, prosecutors are foregoing evidentiary hearings altogether and agreeing to new trials where the flawed hair testimony was introduced.

Here in Illinois, however, very little has happened. At least publicly, there has been no widespread examination, audit, or response to the federal government’s groundbreaking report that exposed systemic flaws in the “science” used in our courtrooms.

There is, however, absolutely no question that faulty science has been used in Illinois cases. Take, for example, Bennie Starks, who was wrongfully convicted in Lake County on the basis of bite mark testimony that a federal judge recently called nothing more than “‘experts’ peddling junk science to credulous judges and jurors.” And individual Illinois State Police forensic analysts have, in the past, been criticized for providing misleading testimony that has led to wrongful convictions. Indeed, the National Registry of Exonerations identifies 30 Illinois cases where “false or misleading forensic evidence” contributed to the wrongful conviction.

Instead of dealing with these problems on a case-by-case basis, criminal justice leaders in Illinois need to put a system in place that will allow a wholesale re-examination of cases where individuals remain incarcerated on the basis of debunked science. One option is to establish a commission, similar to what Texas has done, that investigates individual complaints, issues reports, and makes legislative recommendations. Illinois has established these types of commissions in response to other criminal justice errors or scandals, including  the Torture Inquiry and Relief Commission, which was tasked with examining the claims of systemic physical abuse and torture by Chicago police. A similar model might be effective in investigating past forensic errors.

Illinois has on its books a dormant commission — the Illinois Laboratory Advisory Committee —  that could be used to address this very problem. The commission has not met in over six years, but it could be revived.

This is a problem in the criminal justice system that was identified many years ago yet never addressed. Those of us working in the Illinois criminal justice system need to come together to begin to address it.

Joshua Tepfer is an attorney with the Exoneration Project and a Lecturer-in-Law at the University of Chicago Law School.

Richard Glossip case: We can't be cavalier about death penalty

The following opinion by Christy Sheppard was published on September 12, 2015 by The Oklahoman.

National attention is focused on the pending execution of Richard Glossip, and on his potential innocence. As a murder victim's family member, it has always bothered me that the victim and family seem to be a side note. Barry Van Treese, the victim in Glossip's case, was a victim of an awful crime. My heart, and that of my family, aches for his family.

And while I cannot speak for how his family feels, I certainly have every blessing to speak for mine.

My cousin was Debbie Carter, who in 1982 was raped and murdered. Five years later, Dennis Fritz and Ron Williamson were convicted of the crime. Williamson received the death penalty. We had every reason to believe in the convictions. Over the years we suffered through numerous appeals and repeated findings of guilt.

Then my family was delivered a bombshell of information: DNA testing proved that Williamson and Fritz had been wrongfully convicted. We were shocked. Debbie's justice was being ripped away.  

We eventually learned that Debbie's case was plagued with unreliable evidence. So what does wrongful conviction feel like from the perspective of the victim or victim's family? At first it looks like disbelief, and justice denied. We later  felt a burden of guilt and shame for being led to support the near executions of innocent men.

I know very little about Glossip's case, or if he is truly guilty or innocent. Gov. Mary Fallin stated Glossip “had over 6,000 days to present new evidence,” and her spokesman said that, “To say that Glossip has had his day in court is an understatement.”  In Debbie's case, too, years of trials, retrials and appeals had happened — but the guilty verdict still proved incorrect.

Looking at the evidence, there's no doubt Glossip might be innocent. But it's almost impossible to totally prove. Van Treese and his family deserve justice, but justice won't be served if Glossip is put to death and we find out too late that he is innocent of this crime.

I'm a native Oklahoman. I have had a family member who was brutally murdered, and I grew up believing the death penalty was fair and just. I still struggle with my desire for justice and what I know about wrongful convictions.

Regardless of how you feel about the death penalty, unless we're absolutely sure of Glossip's guilt, it actually threatens justice — and peace of mind — to make the leap to execute him.  

We can't be cavalier when it comes to the subject of putting someone to death, and turn a blind eye to information that may make a difference.

Sheppard lives in Ada. Glossip is scheduled to be executed Wednesday for his role in the 1997 killing of Van Treese, an Oklahoma City motel owner.

When Innocence Is No Defense

The following op-ed by Julie Seamn was published by the New York Times on August 12, 2015.

ATLANTA — SUPPOSE someone has been convicted of a serious crime, but new evidence emerges proving his innocence. Does he have a constitutional right to be freed?

The answer might seem obvious, but it is far from clear that the Constitution protects an innocent person against incarceration, or even execution, if his original trial was otherwise free of defects. Despite growing awareness about the problems of unreliable witness identification, questionable forensic evidence and inadequate legal representation of indigent defendants, the Supreme Court has repeatedly declined to decide this basic question — even though some 115 prisoners have been exonerated from death row since 1989.

Now the fate of a 41-year-old man in Georgia raises the question anew.

In 2001, a young woman came home from church in Thunderbolt, Ga., to find a stranger burgling her apartment. When she walked in on him, he blindfolded her, tied her up and threatened to kill her. He then sexually assaulted her while wearing a pair of blue and white batting gloves.

Around this time, two acquaintances, Sandeep Bharadia and Sterling Flint, were involved in a dispute: Mr. Bharadia had reported his car stolen, accusing Mr. Flint. While investigating Mr. Bharadia’s complaint, the police in Savannah visited the home of Mr. Flint’s girlfriend.

There they found a computer and jewelry belonging to the young woman from Thunderbolt, as well as a knife and crowbar. The distinctive batting gloves were with this stash. The girlfriend told the police that Mr. Flint had left the items at her house, telling her they were his.

When the police questioned Mr. Flint, he said that he had gotten the items from Mr. Bharadia and was holding them for him. At trial, he testified that he had never worn the gloves. The two men were charged as co-defendants in the crimes against the young woman; Mr. Flint struck a deal with prosecutors, receiving a sentence of 24 months, and testified against Mr. Bharadia.

Mr. Bharadia has always maintained his innocence. There was no physical evidence that tied him to the crime. He claimed that he was 250 miles away in Atlanta when the crime was being committed. At trial, the only evidence besides Mr. Flint’s testimony was the victim’s identification of Mr. Bharadia. (Witness identification is persuasive to juries, but misidentification has been a significant factor in a majority of convictions later overturned by DNA evidence.)

The police and prosecutors did not test the stolen items for DNA, and any evidence aside from the gloves has apparently been lost or destroyed by the state. For reasons unknown, Mr. Bharadia’s trial attorney did not request DNA testing.

At the end of the 2003 trial, the jury returned a guilty verdict, and Mr. Bharadia was sentenced to life without parole.

His appellate counsel later made a motion for a new trial and asked to have the gloves tested for DNA evidence. The court allowed this, and the results showed that there was female DNA on the outside of the gloves and male DNA — but not Mr. Bharadia’s — on the inside.

His appellate counsel later made a motion for a new trial and asked to have the gloves tested for DNA evidence. The court allowed this, and the results showed that there was female DNA on the outside of the gloves and male DNA — but not Mr. Bharadia’s — on the inside.

The court declined to order DNA testing of Mr. Flint, and no new trial went ahead. But several years later, the Georgia Innocence Project took on Mr. Bharadia’s case, and his new attorneys filed a motion that the DNA results be run through the national Codis DNA database. Finally, in 2012, there was a hit: The male DNA belonged to Mr. Flint.

The Georgia Supreme Court ultimately ruled that nothing prevented Mr. Bharadia’s original attorney from requesting DNA testing of the gloves before the trial. (I filed an amicus brief in this case.) Mr. Bharadia’s motion for a retrial was therefore denied — even though the trial court recognized that this evidence “would probably produce a different verdict.”

Of course, the DNA match does not establish Mr. Bharadia’s innocence beyond all doubt. But he continues to serve a life sentence for a crime that the court acknowledges he probably didn’t commit.

What is most troubling about the Georgia Supreme Court’s decision is that the issue of innocence becomes irrelevant if there has been a failure of due diligence. In effect, the ruling elevates finality over justice to the point that an innocent person can be imprisoned, even executed, because of errors made by his lawyer. Absent a constitutional safety net, an innocent person convicted after a procedurally adequate trial is out of luck.

Faulty convictions happen for many reasons: because juries are composed of human beings, who are fallible; because witnesses feel certain but can be mistaken; and because defense lawyers, particularly those representing indigent defendants, are notoriously overworked and underpaid. The issue is what courts should do in the face of strong evidence that the wrong person has been punished.

Mr. Bharadia now has a habeas corpus petition pending that seeks his release from unlawful imprisonment. If denied by Georgia courts, his case would present an excellent vehicle for the United States Supreme Court to decide, once and for all, that incarceration or execution of an innocent person is constitutionally impermissible.

Julie Seaman is an associate professor of law at Emory University.

Innocence, not finality, reason Rish should be freed

The following opinion by Steven Becker and Margaret Byrne was published on August 8, 2015 by the Daily Journal.

In last week's opinion piece about the petition for a new trial filed by us on behalf of Nancy Rish, Joseph Yurgine laments that "despite the need for finality of judgments ... murder cases never end" as long as the incarcerated, convicted defendant still is alive.

Let us be clear from the outset: the brutal and senseless nature of the crime committed by Danny Edwards against Stephen Small and his family cannot be overstated. The lifetime of suffering experienced by Mr. Small's loved ones is beyond comprehension. Everyone who supports Nancy Rish's bid for a new trial has profound sympathy for the Small family, as does Nancy Rish.

Yet, Mr. Yurgine's high esteem for the "finality of judgments" may not have been seen as such a worthy goal for the many hundreds of innocent people across the country who were wrongfully convicted and spent countless decades of their lives wasting away in prisons for crimes they did not commit.

More than 1,600 people have been exonerated, and the cases continue to pile up. The right of an innocent person to challenge her incarceration when new evidence becomes available necessarily takes precedence over our desire for procedural finality because, as the Illinois Supreme Court has emphasized, the imprisonment of the innocent is "so conscience shocking" as to trigger the protections of our Illinois Constitution.

Now, after more than a quarter of a century of silence and years of unsuccessful appeals, Danny Edwards, who lured Stephen Small from his home and buried him in a wooden box for the purpose of extracting ransom, has just recently provided two affidavits stating he acted alone in the crime, never told Nancy Rish about his plans, and, in fact, repeatedly lied to Nancy in an effort to actively conceal his plot from her.

This is compelling new evidence of innocence from the actual perpetrator of the crime that merits a full evidentiary hearing, where Edwards can be examined in open court by lawyers for both the defense and the prosecution.

Expanding upon his theme of finality, Mr. Yurgine further remarks that "[a]fter a person has had his day in court and has been fairly tried, there is always a proper reluctance to give the person a second trial."

The critical phrase here, however, is "has been fairly tried." In this regard, the more that Nancy Rish's case has been scrutinized throughout the years, the more it has become apparent to independent observers that she did not receive a fair trial. To borrow an old phrase, "Truth is the daughter of time."

In 1993, the Pulitzer prize-winning investigative journalist William Gaines writing for the Chicago Tribune found that "prosecutors eager for a conviction [in Nancy Rish's case] took full advantage of the emotional atmosphere surrounding the crime. They wove facts, half-truths, sketchy witness accounts and sheer conjecture into a compelling but deeply flawed portrait of Rish as a ruthless 'gold digger.' They ignored contradictory evidence ... and glossed over important distinctions in the law."

There was no physical evidence whatsoever linking Nancy Rish to the crime, and the state's case was entirely circumstantial. She always has maintained her innocence. Furthermore, in a recent editorial, the Chicago Sun-Times notes that "questions about the extent of Rish's participation in the crime have been swirling" ever since Gaines' investigative articles.

In addition, the Sun-Times editorial correctly opines that there would be no harm in allowing Edwards to testify based on the lingering doubts about the evidence against Nancy Rish.

Moreover, Nancy Rish's trial is unique in the annals of Illinois jurisprudence. As a result of Stephen Small's stature in the community, both the state's attorney's office and the public defender's office recused themselves from the case because of connections to the Small family.

Nancy was tried in the emotionally charged aftermath of the brutal and senseless killing of Mr. Small, followed by Danny Edwards' high-profile trial, conviction and sentence of death. At the very least, there was overreach by the prosecution.

At Nancy's trial, the prosecutor told the jury, without any evidentiary basis, that Nancy made the initial phone call to lure Mr. Small away from his home. The same prosecutor had previously alleged in Danny Edwards' trial that it was Edwards who made the call. This damning accusation, alone, could have tipped the scales against Nancy. Edwards now has admitted, in an affidavit, that he made the first call to the Small home and all of the subsequent ransom calls, as well as that Nancy was unaware he had kidnapped Mr. Small, let alone that he was making ransom calls.

Edwards is seriously ill with coronary disease. We have twice asked the court to take Edwards' deposition so that his testimony can be obtained and preserved, a request to which the office of the Illinois Attorney General has twice objected. If Edwards should die without his testimony under oath preserved for a future hearing, Nancy Rish could lose the ability to seek a new trial based upon what Edwards says.

We live in a state that has seen more than 150 exonerations of people who were wrongfully convicted, most of murder, and, as of 2013, Illinois had the highest per capita rate of exonerations of any state in the entire United States. We have taken on Nancy Rish's case pro bono because we believe in her innocence.

Based upon our conversations with Mr. Edwards and other witnesses, and our review of the trial record, appeals and the independent investigations conducted since the 1990s by the Chicago Tribune and, most recently, by an award-winning local historian and author, we are convinced that Nancy Rish's trial was fundamentally flawed. If the information we now have in our possession had been presented to the jury, Nancy would never have been convicted of knowingly aiding Danny Edwards.

Simply stated, Nancy Rish should not be allowed to die in prison for a crime she did not commit. Why should she not fight for her freedom for these 28 years, and for as long as she lives? We do know that for as long as we practice law, we will work for her release.

Finality is important, but only after justice is first done.

Steven W. Becker and Margaret Byrne
Chicago, Illinois
Attorneys for Nancy Rish

Hurry Up and Wait for Justice: The Struggles of Innocent Prisoners

The following article by Lorenzo Johnson was published on July 28, 2015 by the Huffington Post.  Mr. Johnson served 16 and a half years of a life-without-parole sentence after being wrongfully convicted.

When people hear about wrongfully convicted prisoners, they often ask why these individuals end up spending so much time in prison before they are exonerated. For the wrongfully convicted, the judicial system has failed twice - once in winning the wrongful conviction, but also in intentionally delaying exoneration for as long as possible.

Innocent prisoners suffer from delayed justice in different ways. For some of us, justice has proved so elusive due to stall tactics and prosecutors who do not want the truth to come out. Some of us have DNA claims that would immediately exonerate us if the tests were actually carried out, but the prosecutors argue against it for years. Take Jeffrey Deskovic's nightmare, for example. Mr. Deskovic spent sixteen years in prison for a murder he had nothing to do with. For years, the prosecutor and judges in his case denied him the right to take a DNA test. When he did get to take the test, it exonerated him.

Derrick Hamilton spent twenty-one years in prison for a crime he never committed. Mr. Hamilton had an alibi and was not even in the state when the crime occurred. His cries of innocence fell on deaf ears, and for over two decades he fought to clear his name. A detective in his case came under investigation for dirty tactics in obtaining his arrests, which helped Mr. Hamilton, whose case went on to have a landmark ruling in the New York courts. It took twenty-one years.

Eugene Gilyard spent almost two decades in prison for a crime of which he was innocent. False, circumstantial evidence got him a natural life sentence. The true killer came forth and confessed, yet this was not good enough for the prosecutor, who fought against Mr. Gilyard's innocence all the way up to the actual beginning of his new trial. At the last minute, the prosecutor dropped the case.

A lot of times, the evidence that can show our innocence resides in parts of our case discovery that were not turned over to our trial attorneys. At this very moment, I'm a victim of these tactics. Once again, innocence is being overlooked, and stalled justice is in full effect, instead of my prosecutor admitting that my rights were violated by his office. This has led to me being in prison for twenty years for a crime I never committed. My prosecutor's argument against my innocence claim is that I filed my appeal too late. This is what is taking place in our judicial system. This is the same prosecutor who met with my attorneys and promised to do a "good faith" investigation. After he filed almost two years of uncontested continuances, instead of addressing my innocence, he simply said my appeal was filed too late.

I could go on for days with examples of how justice is constantly being delayed for innocent prisoners. Sometimes our own attorneys agree to these prosecutors' motions for continuances, in the hope that when the allotted time expires, the prosecutors will do what's right. That rarely occurs, and most times, the prosecutors use this time to come up with a sound strategy to combat our innocence. Sick, right?

When they are finally free, some exonerees do get compensated financially for decades of being held in a cage for crimes they never committed. But some states don't even offer any type of re-entry or financial assistance to exonerees upon their release. That's pretty much like opening a prison and releasing an innocent prisoner after years, saying: "Go get your life together by any means you can."

A couple years ago, I watched a T.V. talk show that featured exoneree Michael Morton. Mr. Morton spoke on how the judicial system failed him by withholding evidence of his innocence. What really caught my attention was how the host said that, since Mr. Morton was being compensated, his life should be all right now. Mr. Morton answered this by saying: "I'll tell you what, I want you to go to prison for the amount of time I've done, for a crime you didn't commit, then when you come home - I'm going to give you a check." The host quickly turned down that proposal. The moral here is that there's no price tag on a human being freedom.

Through all of the stalling and delay tactics that innocent prisoners face, we continue to fight to prove our innocence. When the judicial system that is supposed to protect us continues to fail us and our families, and when we have evidence to clear us of these crimes that goes ignored, it's extremely hard to keep our sanity. When will this all stop? Until it does, we'll continue to hurry up and wait for justice.

Lorenzo Johnson served 16 and a half years of a life-without-parole sentence, from 1995 to 2012, when the Third Circuit Federal Court of Appeals ruled there was legally insufficient evidence for his conviction. He remained free for four months, after which the US Supreme Court unanimously reinstated the conviction and ordered Lorenzo back to prison to resume the sentence. With the help of Michael Wiseman, Esq., The Pennsylvania Innocence Project, The Jeffrey Deskovic Foundation for Justice, The Campaign to Free Lorenzo Johnson, and others, he is continuing to fight for his freedom. Email him or sign his petition and learn more at: http://www.freelorenzojohnson.org/sign-the-petition.html. 

The staggering number of wrongful convictions in America

The following opinion by Samuel R. Gross was published on July 24, 2015 by the Washington Post.  Samuel R. Gross, a law professor at the University of Michigan, is the editor of the National Registry of Exonerations.

I edit the National Registry of Exonerations, which compiles stories and data about people who were convicted of crimes in the United States and later exonerated. The cases are fascinating and important, but they wear on me: So many of them are stories of destruction and defeat.

Consider, for example, Rafael Suarez . In 1997 in Tucson, Suarez was convicted of a vicious felony assault for which another man had already pleaded guilty. Suarez’s lawyer interviewed the woman who called 911 to report the incident as well as a second eyewitness. Both said that Suarez did not attack the victim and, in fact, had attempted to stop the assault. A third witness told the lawyer that he heard the victim say that he would lie in court to get Suarez convicted. None of these witnesses were called to testify at trial. Suarez was convicted and sentenced to five years.

After these facts came to light in 2000, Suarez was released. He had lost his house and his job, and his plan to become a paralegal had been derailed. His wife had divorced him, and he had lost parental rights to their three children, including one born while he was locked up. Suarez sued his former lawyer, who by then had been disbarred. He got a $1 million judgment, but the lawyer had no assets and filed for bankruptcy. Barring a miracle, Suarez will never see a penny of that judgment.

The most depressing thing about Suarez’s case is how comparatively lucky he was. He was exonerated, against all odds, because his otherwise irresponsible lawyer had actually talked to the critical witnesses and recorded those interviews despite failing later to call them at trial.

Suarez served three years in prison for a crime he didn’t commit. The average time served for the 1,625 exonerated individuals in the registry is more than nine years. Last year, three innocent murder defendants in Cleveland were exonerated 39 years after they were convicted — they spent their entire adult lives in prison — and even they were lucky: We know without doubt that the vast majority of innocent defendants who are convicted of crimes are never identified and cleared.

The registry receives four or five letters a week from prisoners who claim to be innocent. They’re heartbreaking. Most of the writers are probably guilty, but some undoubtedly are not. We tell them that we can’t help; we are a research project only, we don’t represent clients or investigate claims of innocence. Fair enough, I guess, but some innocent prisoners who have been exonerated wrote hundreds of these letters before anybody took notice. How many innocent defendants have I ignored?

Innocence projects do handle these cases, or at least some of them. They receive many times more letters than we do. I’ve spoken with lawyers who do this work, and who have successfully exonerated dozens of defendants. Most of them have clients who remain in prison despite powerful evidence of their innocence that no court will consider. And they all know that there are countless innocent defendants hidden in the piles of pleas for help that they will never have time to investigate.

How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.

Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.

The problem may be worst at the low end of the spectrum, in misdemeanor courts where almost everybody pleads guilty. For example, in July 2014 Wassillie Gregory was charged with “harassment” of a police officer in Bethel, Alaska. The officer wrote in his report that Gregory was “clearly intoxicated” and that “I kindly tried to assist Gregory into my cruiser for protective custody when he pulled away and clawed at me with his hand.”

The next step in the case would normally be the last: Gregory pleaded guilty, without the benefit of a defense lawyer. But Gregory was exonerated a year later after a surveillance video surfaced showing the officer handcuffing him and then repeatedly slamming him onto the pavement.

Why then did they plead guilty? As best we can tell, most were held in jail because they couldn’t make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation or weeks to months in jail. If they refused, they’d wait in jail for months, if not a year or more, before they got to trial, and risk additional years in prison if they were convicted. That’s a high price to pay for a chance to prove one’s innocence.

Police officers are supposed to be suspicious and proactive, to stop, question and arrest people who might have committed crimes, or who might be about to do so. Most officers are honest, and, I am sure, they are usually right. But “most” and “usually right” are not good enough for criminal convictions. Courts — judges, prosecutors, defense attorneys, sometime juries — are supposed to decide criminal cases. Instead, most misdemeanor courts outsource deciding guilt or innocence to the police. It’s cheaper, but you get what you pay for.

We can do better, of course — for misdemeanors, for death penalty cases and for everything in between — if we’re willing to foot the bill. It’ll cost money to achieve the quality of justice we claim to provide: to do more careful investigations, to take fewer quick guilty pleas and conduct more trials, and to make sure those trials are well done. But first we have to recognize that what we do now is not good enough.

Taxing Wrongful Conviction Money Is Wrong

The following opinion by Robert Wood was published in Forbes on July 21, 2015.

Our justice system is complex, and sometimes gross injustices occur. Undoing them does not always happen, and even when it does, it takes time. Few of us can imagine what it would be like to be convicted and imprisoned for crimes we did not commit. And while taxes seem far removed from this topic, they are not.

A few years ago, Congressmen Sam Johnson (R-TX) and John Larson (D-CT) tried to get legislative tax relief for innocent people who are wrongfully convicted. Their bill failed but they haven’t given up. Now, they have re-introduced the Wrongful Convictions Tax Relief Act. The bill would amend the tax code to say that:

“In the case of any wrongfully incarcerated individual, gross income shall not include any civil damages, restitution, or other monetary award (including compensatory or statutory damages and restitution imposed in a criminal matter) relating to the incarceration of such individual for the covered offense for which such individual was convicted.”

They correctly point out that there is a gap in the tax law. Fortunately, one can read feel-good stories about wrongfully convicted people who are subsequently freed. But what happens then? Sometimes they seek financial redress in one of a number of different ways. Sometimes they get it, but how is it taxed? It depends.

The tax issues have been surprisingly cloudy. In the 1950s and 1960s, the IRS ruled prisoners of war, civilian internees and holocaust survivors received tax-free money for their loss of liberty. In 2007, the IRS “obsoleted” these rulings suggesting the landscape had changed. The IRS now asks whether a wrongfully jailed person was physically injured/sick while unlawfully jailed.

If so, the damages are tax free, just like more garden variety personal physical injury recoveries. What if an exoneree isn’t physically injured? In IRS Chief Counsel Advice 201045023, the IRS said a recovery was exempt, but the IRS sidestepped whether being unlawfully incarcerated is itself tax-free. The Tax Court and Sixth Circuit in Stadnyk suggest that persons who aren’t physically injured may be taxed. That’s why the Stadnyk case is a lemon.

There are usually significant physical injuries and sickness but not always. Besides, what about the money just for being locked up? What if an exoneree gets $50,000 for physical injuries and $450,000 for being unlawfully behind bars?

It may be difficult or even impossible to separate out all of the multiple levels of horror, all the losses that can never be made up. But in many cases, the loss of physical freedom and civil rights is at the root of the need for reparations.

The loss of physical freedom should be tax-free in its own right. Many exonerated individuals experience severe hardship acclimating to society, finding jobs, housing and reconnecting with family. The Wrongful Convictions Tax Relief Act proposes to allow exonerees to keep their awards tax-free.
The debate over these recoveries has focused (probably incorrectly) on the factual question whether the wrongfully jailed person experienced physical injuries or physical sickness while unlawfully incarcerated. If so, the damages are tax free, just like more garden variety personal physical injury recoveries. If not, taxable.

More and more prisoners are being exonerated based on DNA or other evidence. Under statute, by lawsuit or even by legislative grant, exonerees may receive compensation for their years behind bars. In fact, are you ready for some shocking figures?

Since the first DNA exoneration in 1989, wrongfully convicted persons have served thousands of years in prisons before being exonerated. The average exoneree has served more than ten years in prison. Although a few get lucky and get out quickly, some spend multiple decades behind bars. Whether you look at an individual case or at the averages, the numbers are astounding.

Editorial: Case with 'undetermined' cause of death needs careful look

The following editorial was published by the Chicago Sun-Times on July 9, 2015.

A former day care worker is serving 31 years in prison for what the Lake County coroner now says might not even have been a crime. Authorities need to pull out all stops to get to the bottom of this case.

Melissa Calusinski, 28, was convicted in 2011 of killing a 16-month-old toddler by throwing him to the floor of a Lincolnshire day care center. She’s been behind bars for six years.

But now Coroner Thomas Rudd says X-rays unearthed last month showed no skull fractures. An independent forensic pathologist reviewing the new evidence concluded the toddler had cerebral swelling from earlier concussions. Rudd now says the cause of death is “undetermined,” not homicide, the original finding.

This is not the first case in which doubt has been raised over a conviction of a day care worker. When toddlers die, there’s a demand for someone to be convicted. Often, that’s the last person known to have been with the child. Often, there are no witnesses. Too often, the medical theory used to prove that person’s guilt is suspect.

We can’t say that’s what happened here. But the original pathologist in this case already has admitted he missed the evidence of an earlier injury, although he isn’t revising his overall conclusion.

In the long history of wrongful convictions, authorities have with troubling frequency refused to look at new evidence or consider re-opening cases. So we commend Rudd for his willingness to reclassify the cause of death based on the new evidence.

We also commend Lake County State’s Attorney Michael Nerheim for the work he has done since taking office in 2012 to untangle a series of wrongful convictions in high-profile cases that he inherited from his controversial predecessor.

After taking office, Nerheim set up a volunteer wrongful-conviction panel to take an extra look at cases. Most recently, Jason Strong was cleared in May after 15 years in prison on a murder charge. He was freed partly on the basis of new medical evidence.

Like Calusinski, Strong had confessed. But a growing body of research has showed false confessions are more common than once thought. Calusinski’s videotaped confession came after six hours of interrogation.

Nerheim, who already reviewed the Calusinski case shortly after assuming office, says his office is reviewing the documents in the case again. We trust he will give the evidence a thorough and impartial look.

The case is scheduled to go before a judge on Sept 21. We hope by then — if not sooner — clearer answers will emerge.

Time for a change in ‘shaken baby’ investigations

The following editorial was published by the Mat-Su Valley Frontiersman (Alaska) on July 6, 2015.

From the abundant offerings of TV crime dramas it is obvious that the law enforcement community has benefited from the advancements in modern science, such as DNA evidence.

But in at least one area, law enforcement and the rest of the justice system seem to be lagging.

Introduced as a theory in the 1960s, for decades shaken-baby deaths were identified by a triad of symptoms — hemorrhaging in the eyes, subdural hematoma and a swollen brain — that were viewed as iron-clad medical evidence a child died of abuse.

But by 2006, medical experts around the world began questioning the symptoms as conclusive. Defendants began appealing guilty verdicts and winning based on flawed forensic findings.

Child forensic pathology expert Dr. Janice Ophoven has testified in several Alaska trials where people were accused of the shaking death of a child.

Failing to use board-certified forensic pathologists to review the forensic evidence, and failing to recognize that other medical conditions also present this trio of symptoms is causing innocent Alaskans to be tried, convicted and receive long prison sentences, she says.

“This is one of the worst miscarriage of justice cases I’ve had, but it is not the only case like it in Alaska,” Ophoven said of the Clayton Allison trial and conviction in his daughter’s death. Allison is set for sentencing Wednesday.

According to a review of shaken-baby cases by Deborah Tuerkheimer, a DePaul University law professor and author of the just-published book, “Flawed Convictions: “Shaken Baby Syndrome and the Inertia of Injustice,” 95 percent of people charged in shaken-baby deaths are convicted, and of those, 90 percent receive life sentences.

The prosecution is seeking a 40-year sentence — 30 to serve and 10 years of probation — for Clayton Allison. An appeal is planned, but that process will likely take years.

On Sept. 24, 2008, Clayton told police his daughter, Jocelynn, accidentally tumbled down eight carpeted steps, then struck her head on a chair with a file-box on top. She died of her injuries a few hours later at Providence Alaska Medical Center in Anchorage.

But the jury in the Allison case never heard about the significance of the chair or the heavy box of files on top of it. Jurors heard about the child’s medical condition. They knew the baby was diagnosed with hypermobility.

But the judge ruled no one could tell jurors that Jocelynn’s mother had been diagnosed with a connective tissue disease — Ehlers-Danlos Syndrome — after her death, and that it could have a direct effect on the injuries she sustained.

Shaken-baby cases often rely on medical evidence to establish a crime occurred. But in Alaska, no one involved in the collection of evidence in shaken-baby cases is trained as a neuroscientist or a pathologist. Some involved are medical doctors with years of family medicine or pediatric experience.

But that’s not the equivalent to completing the rigorous training required to become a board-certified forensic pathologist. That matters because at the end of the day, their review of the evidence will be used in legal proceedings that could send innocent Alaskans to prison for decades.

Once a shaken-baby investigation begins, it’s very hard to derail, Ophoven said.

“Their findings carry enormous weight within the criminal justice system,” she said of doctors like Dr. Cathy Baldwin-Johnson of The Children’s Place in Wasilla.

Baldwin-Johnson testified during Allison’s five-week trial that when she sees no other medical explanation for the injuries, child abuse is the answer she turns to.

But Ophoven, a pathologist, noted that falls are the No. 1 cause of child deaths, and that Jocelynn’s fall that September could have resulted in her death, especially given her existing medical diagnosis.

The Allison family says they plan to appeal Clayton’s conviction. But that will take years.

For Alaskans, this is an opportunity to call for reform to the process law enforcement and prosecutors use to investigate possible shaken-baby deaths.

Only board-certified forensic pathologists should be used to review medical evidence in these cases, which depend largely on forensic evidence to prove a crime occurred. There is too much at stake to do less.

Innocence, Inc.

The following was posted by Scott Greenfield on his blog, Simple Justice, on June 16, 2015.

When Jeff Blackburn, a founder of the Innocence Project of Texas and its chief counsel, tendered his resignation, it raised a storm of controversy. Jeff was gracious toward his organization, but it wasn’t his way to go quietly into the night.  He didn’t quit without reason, and yet he didn’t seek to tank the organization he built that had accomplished extraordinary things.  It’s not that the legal system in Texas is so much worse than anywhere else, but that they like killing people down there.

But then came an “announcement” that was more than he could take.  It hit the fan from three sides, the IPTX website, the Houston Chronicle and a blog, Grits for Breakfast.  Aside from Jeff, the other person who ran the show was the IPTX executive director, Nick Vilbas.  Together, they made an underfunded, overworked organization do things that no one would have believed possible. They exonerated the innocent.

While Nick remains, as far as he knows, Executive Director, having made a promise to stay on long enough to facilitate the transition to “new management,” and honoring his promise to do so, because honorable guys do that, the announcement hit hard.  There was a new Executive Director. Not just new, but one who had worked at IPTX before, but was “let go” as he just wasn’t worth keeping on.
He wasn’t a lawyer. He lacked a firm grasp of what lawyers do, grossly overestimating his knowledge of law and the legal system. He didn’t even like lawyers and had little respect for their efforts.  That didn’t stop him from promoting his own views, often naïve and puny, always self-aggrandizing, but not always with high regard for the truth.

Yet, there it was, in black and white, a new Executive Director was named, and he was going to lead the Innocence Project of Texas to a “new era.”  This was more than Jeff Blackburn could stomach.  I asked Jeff what all this meant, and in an email Jeff let loose.

Hey Scott,
Thanks for asking me to comment on Scott Henson’s post about his becoming the new Executive Director of the Innocence Project of Texas (IPTX), and, more generally, about what is going on down here.

To the casual reader of “Grits for Breakfast,” everything must seem just peachy in Texas: we learn that there has been a “significant bout of staff turnover” at IPTX and that Scott, my “longtime friend,” has agreed to step in and become the new leader. In a gushy article in the Houston Chronicle, it is even suggested that his ascension will usher in some sort of “new era” of reforms at a “crucial” time.

That’s ok so far as it goes, I guess. The problem is that it doesn’t go anywhere at all. This post, like the IPTX’s official line on why I left, fails to explain why these events have happened, what is happening to the “innocence movement” in Texas and around the country, and what it means for criminal defense lawyers.

That’s a mistake. Big changes are going on in criminal defense and criminal justice reform right now, and what is happening in IPTX is only a small example. We need to discuss these changes freely and out in the open. Your blog is about the only place that can be done, and I sincerely thank you for that.

Here’s my contribution to that discussion:

Ten years ago, we created IPTX to be a fighting organization of criminal defense lawyers that could win cases, then use those victories to get statutes passed. We had a very clear, lawyer-driven, guerilla strategy. After a fair number of setbacks and missteps over the years, it worked- we got a lot of people out of prison, got some good stuff passed in the legislature, and managed to take our long-shot victory in the Tim Cole case all the way to getting a statue built in his honor and, now, an official commission named after him.

As lawyers, we knew what mattered to criminal defendants and what did not. We did all of this without getting co-opted into the state government even though we got a $100,000.00 per year payment from it through our Texas Tech clinic. We also avoided getting suckered into advocating minor, inoffensive reforms and calling them big just so we could say we had done something- a standard practice in Texas and one that Scott (Henson) is intimately familiar with. We picked, we chose, and overall we did pretty well. Of course, we were broke all the time and it required loads of unpaid effort, but who the hell was counting hours or money? It was the right thing to do and it made us feel fully alive.

While we were doing that some big changes happened. These changes put our ideas about IPTX on a collision course with the reality of power and money. Eventually, they would blow the whole project apart.

Three things happened:

1. The New York-based Innocence Project transformed itself into a multi-million dollar-a- year business replete with professional fundraisers, plaques for lawyers from Goldman Sachs, and $100,000.00 per table galas. These people began to do things that were solely designed to get publicity and make them money. They overstated the nature and extent of problems in forensic science. They exaggerated the number of wrongful death penalty convictions. They tried to kill good legislation.

Some of this behavior, all of which was done arrogantly and without ever even consulting us, messed up relationships we had formed with law enforcement officials. All of it messed up our ability to raise money for our work in this state. Finally, the New York people changed the structure of the national “Innocence Network” to allow them to be in full control. Do they still have good lawyers who do good work? Absolutely. Has that part of their operation been eclipsed by their United Way-level need to keep getting more and more money and please donors? Totally. Is there an innocence “movement” anymore? Not really. There’s just Goldman Sachs and business, baby, business.

2. Even bigger changes occurred during this period within the criminal defense bar as a whole. As a result of major sociological changes, criminal defense lawyers are now either fabulously-well-to-do lawyers that represent fabulously-well-to-do defendants, clowns with overblown websites who aspire to be fabulously-well-to-do lawyers, or incompetent, faceless drabs doing court appointments for a few hundred bucks a throw. There are plenty of us in the middle, of course- good lawyers who do good work because we believe in it- but our voices are increasingly drowned out. The big, top-down outfits like NACDL and our state group in Texas, TCDLA, reflect this shift- the seminars are slicker and more expensive, the big shots are praised more lavishly, and the efforts to get money from people like the Koch brothers or the government are more strenuous and frequently successful. So what’s wrong with all that?

Everything: criminal defense lawyers, whether we get it or not, are the canaries in the coal mine of this country’s government. Our calling and purpose is to sound the alarm against repression, organize resistance to it, and defend the interests of the poor slobs who don’t know any better out there. Are our national and state organizations doing that? Not really. Are we doing it on our own in our towns and cities? Not really, and damn sure not enough.

3. While facing these pressures, there was something even more insidious: the drive of the government in Texas to co-opt innocence work and housebreak the IPTX. The most recent example of this is the creation of the Tim Cole Exoneration Review Commission, a move being heralded as some sort of breakthrough in criminal justice reform. IPTX will be given a rotating token slot on this “Can’t-And-Won’t Do” commission, which will undoubtedly declare before long that the “problem” of wrongful convictions is “solved”. Does anyone want to bet that this commission will come within forty miles of dealing with the real reason people get wrongfully convicted in this state- our lack of a public defender system?

IPTX was faced with a choice in the face of these pressures- either go along and get along or change direction and break free of the hypocrisy. Nick Vilbas, the just-replaced Executive Director of IPTX and I wanted us to change direction. We wanted to break from the big-money phoniness of both the New York people and the leadership of the criminal defense organizations. We wanted to find a way back to the heart and soul of the criminal defense lawyers we are and believe in being. We chose to resist, even to the point of refusing money for the law school operation, getting co-opted by the government in Texas.

We lost that vote. The others won. I quit over it, and Nick will be out soon enough.
The folks who chose to stay in IPTX are good, well-intentioned lawyers. Scott Henson is indeed my old friend, and I wish him well with his “new era”.

My idea of a “new era” is a lot different than his, however.

My idea of a “new era” is one in which criminal defense lawyers start organizing at the local level for political change- change that can politicize the criminal justice system by demanding better indigent defense, citizen’s oversight of cops, bail reform, and a host of other things that can bring this repressive system to heel.

My idea of a “new era” is one in which criminal defense lawyers can reclaim their roles, their value to the community they live in, and their personal and professional worth.
My idea of a “new era” is one in which we truly are liberty’s first, and last, champions.
Is that era at hand? No. But it is damn sure worth fighting for.

Thanks for asking me about my thoughts, and thanks for your time and attention .

Sincerely,
Jeff Blackburn
June 16, 2015

This was the “polite” version of what Jeff had to say. I’ve printed it in full, without interim commentary, so that my words or thoughts don’t impair his message.  There will be time for that later.

One miscarriage of justice wasn't quite enough?

The following editorial was published by the Ledger-Enquirer (Columbus, GA) on June 15, 2015.

The particular case at hand happened in Texas, but this isn't really about Texas. It's about justice. (Abundant evidence to the contrary, the two are not mutually exclusive.)

As reported over the weekend, a former prosecutor named Charles Sebesta, who spent 25 years as a district attorney in a couple of mostly rural Texas counties about 100 miles from Houston, had to forfeit his law license after a State Bar of Texas review panel concluded he was guilty of professional misconduct.

Lest that sound too dully bureaucratic -- like maybe he fudged on some paperwork -- Sebesta's "misconduct" consisted of withholding evidence and using false testimony (that's called "perjury" in some legal circles) to win a capital murder conviction against a suspect named Anthony Graves for the 1992 killings of six people. A federal appeals court overturned Graves' conviction in 2006, and four years later a special prosecutor concluded he was innocent of the crime and should be freed.

All told, Anthony Graves spent a dozen years on death row, including four after a federal court overturned his original conviction.

The egregiousness of the prosecutorial misconduct in this case boggles the mind. The ultimate outcome, had not the appeals process (and a few strokes of good luck) worked in Graves' favor, should sicken every American whose conscience isn't in need of defibrillation.

The actual murderer, a man named Robert Earl Carter, testified at trial that Graves was his accomplice. Sebesta knew Carter had testified before a grand jury that he acted alone, yet the prosecutor let Carter and another witness give false testimony to win a conviction against Graves. (Carter repeatedly recanted his implication of Graves, including in the final moments before his execution in 2000.)

Had the sheer corruption of Graves' prosecution and sentencing not been uncovered, an innocent man would have been murdered -- however the law might define it, there is no other adequate practical term for it -- in the name of The People.

Any argument that justice has ultimately prevailed in this case would be feeble to the point of moral obscenity. An innocent man lost 12 years of his life, and almost his life itself. A guilty one lost his law license.

The question that hangs over this particular case is obvious: Why is Charles Sebesta himself not headed for prison? In what universe of justice is willful judicial fraud, with consequences so catastrophic, punishable by nothing worse than losing one's job?

A larger question hangs over the larger issue: Why aren't there more and better investigative, prosecutorial and judicial review processes in place for when criminal justice has gone so horribly wrong? News stories about innocent people being freed after years behind bars have become appallingly familiar. And while very few of them involve this kind of horrific prosecutorial misconduct, they still result in wrongs that can never really be righted.

Open letter to Justice Antonin Scalia on the death penalty

The following open letter, written by Leonard Pitts, Jr., was published by the Miami Herald Syndicate on June 14, 2015.

To the Honorable Antonin G. Scalia, Associate Justice of the Supreme Court of the United States:

Dear Sir:

Twenty-one years ago, your then-colleague, the late Justice Harry Blackmun, wrote what became a famous dissent to a Supreme Court decision not to review a Texas death penalty conviction. In it, Blackmun declared that he had become convinced "the death penalty experiment has failed" and said he considered capital punishment irretrievably unconstitutional.

The death penalty, he wrote, "remains fraught with arbitrariness, discrimination ... and mistake. ... From this day forward, I no longer shall tinker with the machinery of death."

You mocked him for this stance in an opinion concurring with the majority, invoking as justification for capital punishment the horrific 1983 case of an 11-year-old girl who was raped then killed by having her panties stuffed down her throat. "How enviable a quiet death by lethal injection," you wrote, "compared with that!"

A few months later, the very case you had referenced came before the court. Henry Lee McCollum, a mentally disabled man who was on death row in North Carolina after having been convicted of that rape and murder, applied to the court for a review of his case. You were part of the majority that rejected the request without comment.

The demagoguery of your response to Justice Blackmun is pretty standard for proponents of state-sanctioned death. Rather than contend with the many logical and irrefutable arguments against capital punishment, they use a brute-force appeal to emotion. Certain crimes, they say, are so awful, heinous and vile that they cry out for the ultimate sanction. For you, Sabrina Buie's rape and murder was one of those, a symbol of why we need the death penalty.

As you have doubtless heard, it now turns out McCollum was innocent of that crime. Last year, he and his also mentally disabled half-brother, Leon Brown (who had been serving a life sentence), were exonerated by DNA evidence and set free. A few days ago, McCollum was pardoned by North Carolina Gov. Pat McCrory.

The case against him was never what you'd call ironclad. No physical evidence tied him to the crime. The centerpiece of the prosecution's case was a confession McCollum, then a 19-year-old said to have the mentality of a child 10 years younger, gave with no lawyer present after five hours of questioning.

"I had never been under this much pressure," he told the News & Observer newspaper in a videotaped death-row interview, "with a person hollering at me and threatening me. ... I just made up a false story so they could let me go home."

But he didn't go home for more than 30 years. You and your colleagues had a chance to intervene in that injustice and chose not to. Not incidentally, the real culprit avoided accountability all that time.

The argument against the death penalty will never have the visceral, immediate emotionalism of the argument in favor. It does not satisfy that instinctive human need to make somebody pay - now! - when something bad has been done. Rather, it turns on quieter concerns, issues of inherent racial, class, geographic and gender bias, issues of corner-cutting cops and ineffective counsel, and issues of irrevocability, the fact that, once imposed, death cannot be undone.

Those issues were easy for you to ignore in mocking Blackmun. They are always easy to ignore, right up until the moment they are not. This is one of those moments, sir, and it raises a simple and obvious question to which one would hope you feel honor bound to respond. In 1994, you used this case as a symbol of why we need the death penalty.

What do you think it symbolizes now?

Leonard Pitts Jr. is a syndicated columnist. Readers may write to him at lpitts@miamiherald.com or the Miami Herald, 1 Herald Plaza, Miami, FL 33132.

Texas Innocence Project Founder Quits, Accuses Colleagues Of Selling Out

The following article was posted by the San Antonio (Texas) Current by Hernán Rozemberg on Wed, May 27, 2015.

He's not about the bling.

But as he sees it, that's all his colleagues have become about.

So he's vowing to continue fighting the good fight ... on his own.

Texas defense lawyer Jeff Blackburn has parted ways with the high-profile organization he founded a decade ago, dedicated to seeking the exoneration of people believed to be wrongly sent to death row.

But Blackburn isn't stepping away from the Innocence Project of Texas because he's changing his mission. Actually, he blasted his colleagues currently leading the group of not having enough backbone to stand up to interests corrupting that mission.

The project is affiliated with the nationally known Innocence Project, headquartered in New York City. It is best known for winning the freedom of many death row prisoners for crimes they long had decried of not having committed.

But the national organization has strayed away from its core mission, lured away by big money and corporate interests, said Blackburn, who's based in Amarillo.

And that's why he had to walk away.

In his resignation letter sent to the board of directors of the Innocence Project of Texas, Blackburn said that the national outfit "went from being a small nonprofit to an organization with a multi-million dollar budget. As its size grew, so did its appetite for money and its need to control the reform movement. What was once a movement has now become a business."

Blackburn didn't accuse his Texas brethren of directly being part of that negative change, but he concluded he could no longer join hands with them due to their refusal to break off from NYC.

"They can keep their $100,000 'VIP' tables at galas, their friends from Goldman Sachs, and their need front control," he wrote in his resignation letter. "It is not for me."

Perhaps not for him, but the rest of Texas group doesn't have an issue with it.

They didn't get into details as to how they see things differently, but in their own statement, board members made it clear they're not going anywhere.

"Our board does not agree with the complaints Jeff made in his resignation letter concerning the Innocence Project," they wrote on the group's website.

"The Innocence Project of Texas will continue the important work to free the wrongfully convicted and reform the Texas criminal justice system and looks forward to continue its fruitful relationship with the Innocence Project and the Innocence Network."

Blackburn may be based in a small Texas panhandle city, but he has certainly made a name for himself much farther and wide across the region and the nation.

A lawyer for more than three decades, he has been involved for many years in trying to exonerate wrongly-convicted death row felons.

His best-known case stems from a drug bust in Tulia, Texas. During a four-year period in the early 2000s, Blackburn obtained full pardons and civil damages for 38 people involved in the case.

The State Bar of Texas named him "Criminal Defense Lawyer of the Year" in 2003. He also teaches law at Texas Tech University.

The FBI’s flawed justice

By Washington Post Editorial Board May 8

THE STUNNING admission by federal law enforcement officials of flawed testimony by forensic experts in hundreds of criminal cases has focused attention on the dubious use of hair analysis. Add this to a list of factors that has played a role in securing the conviction of people who later proved their innocence, including mistaken eyewitness identifications, bad informants and police or prosecutorial misconduct. Forensic technologies must be reassessed, but other parts of the system also need scrutiny if the chances of wrongful convictions are to be reduced.

The Justice Department and FBI, as The Post’s Spencer S. Hsu reported, have acknowledged widespread instances of scientifically indefensible testimony involving microscopic hair comparison by members of an elite FBI forensic unit. A review of cases over two decades before 2000 concluded that nearly every examiner — 26 of 28 — gave flawed testimony in ways that favored the prosecution. Of the cases, 32 defendants were sentenced to death. Fourteen of those have been executed or have died in prison.

The FBI errors do not necessarily mean defendants were innocent. But the confirmation of long-held suspicions about hair analysis, the inability of courts to keep junk science out of courtrooms (and hair analysis is not the only suspect technique) and the questionable reliability of other evidence provide reason to worry about how many innocent people are being convicted.

Consider, for example, the three defendants from the Washington area — Kirk L. Odom, Santae A. Tribble and Donald E. Gates — whose exonerations in separate cases were pivotal in prompting the hair analysis review. Examiners had testified in each case that hair found at the crime scenes matched that of the suspects, analysis later undermined by DNA results that exonerated the three men.

In each case, improper forensics combined with other failings to produce wrongful convictions. Mr. Odom, who spent 22½ years in prison for a rape he didn’t commit, was mistakenly identified by the victim after a questionable police lineup. For the other two, testimony from police informants with something to gain was a factor. Mr. Tribble spent 27 years and 10 months in prison for a murder he didn’t commit. Mr. Gates spent 28 years for a rape and murder he didn’t commit. In other cases, confessions came from susceptible people, or information that would have been helpful to the defense was withheld by the government.

With the exception of the rare bad apple, police and prosecutors don’t set out to convict the wrong person, but even the most well-meaning people can be affected by contextual or cognitive bias, particularly in a system with crushing caseloads and intense pressure. Better protections are needed. Steps in the right direction are improvements by D.C. police in procedures for eyewitness identification and the creation of a conviction integrity unit by the U.S. Attorney’s Office in the District.

But more needs to be done, including, as we’ve argued before, requiring the prosecution to share information with the defense more thoroughly and consistently. We hope the Justice Department undertakes an analysis not only of the breakdown in hair forensics but also of other vulnerabilities in the system.

Barry Beach: Investigations point to innocence

The following letter to the editor by Al Smith of Great Falls, Montana was published on April 1, 2015 by the Missoulian.

Lately I've been wondering why our justice system continues to deny mistakes were made 30 years ago during the prosecution of Barry Beach. Then, in disregard to testimony and evidence to the contrary, Montana has continued to defend those mistakes.

This nearly untenable position was recently compromised further by independent investigations. Two investigators, including John Cameron, a now-retired Great Falls Police detective who was instrumental in solving several “cold case” murders, looked at the Beach case. In his investigative report, Cameron concluded Beach is innocent.

Interestingly, two attorneys, Brant Light and Tammy Plubell, who both serve on the staff of Attorney General Tim Fox, know John Cameron and are familiar with his work. Yet the Office of the Attorney General turned a deaf ear to Cameron’s investigation. Cameron’s report is also now in the public domain; still Montana authorities have not acknowledged, let alone commented on the validity of his findings. I find it peculiar.

So are the Montana officials responsible for the continued incarceration of Beach treading on slippery ground?

It’s long been my contention the prosecutor of the Beach case, Marc Racicot and the then-Attorney General, Mike McGrath, plus those who followed them, steadfastly deny what they know to be the truth about the case. Is it done to protect the sterling reputations of those who are to blame for a terrible and costly miscarriage of justice? Just asking!

Additionally, our Montana Attorney General is aware misconduct occurred during and after the prosecution of the Beach case. A list of Articles of Misconduct were delivered with the signatures of over 200 Montanans requesting an investigation. As is typical, no action is pending.

We need a Montana Conviction Integrity Unit to insure a similar injustice is never again allowed to stand in Montana.

Alabama tried to kill a man who never should have been on death row

The following opinion by Kyle Whitmire was published on April 3, 2015 by AL.com.

If you want to understand why we should abolish the death penalty, consider the case of Anthony Ray Hinton.

If you don't want to understand, consider it anyway.

Authorities arrested Hinton in 1985, after a string of robberies at restaurants in Birmingham. In the first two robberies, the managers were killed and there were no witnesses or physical evidence to identify a suspect. After a third similar robbery at a Quincy's in Bessemer, the manager survived the shooting and later picked Hinton from a photo lineup.

Here's the thing, at the time of the robbery, Hinton had an air-tight alibi. He had been working in a warehouse 15 miles away. The warehouse was even locked, so Hinton couldn't have slipped out on his shift while no one was looking.

Prosecutors never charged Hinton with the Quincy's robbery, but they still used the manager there as a witness against Hinton in the other murders.

The proof they had to tie them all together - the supposed murder weapon, a Smith and Wesson .38 that had belonged to Hinton's mother.

A ballistics "expert" for the prosecution testified that the bullets from all three robberies matched that weapon. I put "expert" in quotation marks because of what we know now after analysis by multiple other experts - that the bullets from those three robberies couldn't be matched to each other, much less to Hinton's mother's gun.

Hinton didn't have the money for a qualified ballistics expert during his trial.

I'm going to take a moment now to rant before we get to the horrifying parts. All my life in Alabama, I've heard the arguments, not just in favor of the death penalty, but arguments that the death penalty we have isn't good enough.

• That the appeals take too long, and we should set a time limit of (insert your number here: 10 years, five years, a week, string 'em up behind the courthouse that day).

• That victims' families shouldn't have to go through all this.

• That we might have made mistakes in the past, but most of those exonerations have come because of advances in DNA evidence. Our science has improved our accuracy and cured the process of its problems.

That last one deserves particular attention, because it has given many of us a false sense of security. People are involved in this process, and because of that, the system will always be messy, imperfect, and sometimes downright malicious.

To see why, you have to consider what happened next to Hinton.

Hinton has been on death row for almost 30 years. During much of that time, appellate attorneys have fought to have the ballistics on the supposed murder weapon retested. The Equal Justice Initiative has been fighting for those tests since they took up the case in 1998.

Thankfully, the United States Supreme Court ruled in favor of the defendant last year, and last month, three experts from the Alabama Department of Forensic Sciences tested the gun and reexamined the evidence. They found the bullets from the three robberies didn't match each other, much less the supposed murder weapon.

Let's be clear here. For decades, Alabama prosecutors have fought like hell to prevent a second look at that evidence, and by doing so, they fought against justice, not for it.
Just so we know who's responsible, let's name a few of them.

• Former Jefferson County District Attorney David Barber.
• Former Alabama Attorney General Troy King.
• Current Alabama Attorney General Luther Strange.

None of these men should be able to sleep tonight.

And neither should we the voters who put them in office.

Had they been successful, the State of Alabama likely would have put an innocent man to death. Had they been successful, they would have been more guilty of murder as the man who went free on Good Friday.

"I shouldn't have sat on death row 30 years," Hinton said after his release Friday. "All they had to do was test the gun. But when you think you are high and mighty and you're above the law, you don't have to answer to nobody. But I've got news for you. Everybody who played a part in sending me to death row you will answer to God."

Don't think for a second that just because Hinton is free today, that the system worked. Hinton lost 30 years of his life. Justice will never be served.

We shouldn't abolish the death penalty because it's inhumane. There are people in the world who deserve to die - folks who have done unspeakable things.

Rather, we should abolish the death penalty because government can't be trusted to tell the difference between the folks who have it coming and those who don't.