Editorial: New York State continues its shameful refusal to act against wrongful convictions

The following editorial was published by The Buffalo News on December 30, 2016.

Nearly 10 years after two Buffalo residents were exonerated of crimes they did not commit, but for which they served decades in prison, New York State lawmakers remain indifferent to the problem of wrongful conviction.

It’s a dereliction of duty and a moral crime against the people of the state, those who remain wrongfully imprisoned and those other innocents who will be incarcerated because of the state’s willful inaction.

Anthony Capozzi served almost 22 years in prison for rapes he did not commit. He was utterly and completely innocent. While he and his family suffered all those years, the actual rapist, Altemio Sanchez, graduated to murder. It’s what can happen when the law gets it wrong and lawmakers don’t act.

Lynn DeJac spent more than 13 years in prison after being convicted of murdering her daughter, Crystallyn Girard, 13.

DeJac’s boyfriend at the time of the death, Dennis Donohue, was initially a suspect but later testified against her. DeJac was exonerated when DNA on the victim’s body was found to be from Donohue. After DeJac was exonerated, Donohue was convicted of murdering Joan Giambra in 1993, only seven months after the death of Crystallyn.

DeJac – released from prison in 2007 and exonerated in 2008 – died of cancer in 2014.

They were two of many. The National Registry of Exonerations lists over 200 people exonerated in New York alone. That’s more than 10 percent of the 1,945 shown to have been innocent nationwide. (The registry is a project of the University of California, Irvine Newkirk Center for Science and Society, the University of Michigan Law School and Michigan State University College of Law.)

One of those recently exonerated is a Town of Tonawanda native, just released after spending 21 years in a Texas prison for a sexual assault he did not commit. Brian E. Franklin had been a police officer in Fort Worth, but in 1995, he was convicted of criminal sexual assault of a child and sentenced to 30 years in prison, based on a false accusation by the alleged victim.

Since then, Texas has acted to change procedures that can lead to wrongful conviction. Although it can do more, it has already done more than New York.

It’s important to note that these aren’t people who were freed because of a legal technicality or because they somehow beat the system. To the contrary, the system beat them. It ground them up. These were innocent people.

Perhaps most infamous of the New York cases is that of the Central Park Five, teenagers wrongfully convicted of raping a jogger and leaving her in a coma. They, too, were innocent.

The five young men were convicted based on false confessions. They were kept from their parents, threatened and misled until police got what they wanted.

False confession is a strange phenomenon, but it’s one of the most common causes of wrongful conviction. It is often associated with drug addiction, mental illness and other factors allowing suspects to be easily manipulated. And to that point: A prison inmate later confessed to the assault on the jogger, and his DNA left at the crime scene clinched it. In 2014, New York City paid $41 million to settle a lawsuit filed by the wrongfully convicted men.

The other most common cause of wrongful conviction is witness misidentification. That’s what happened to Capozzi who, at the time of the crimes, bore an unfortunate resemblance to Sanchez. Still, he was significantly heavier than the description offered by the victims and bore a scar that none of them reported. The system beat him.

There are ways to fix these issues, but New York legislators can’t bring themselves to act on them, any more than they can on the state’s own chronic corruption. But other states have responded and, in doing so, have strengthened law enforcement.

Changes in lineup procedures have been shown to diminish the chances of misidentification. Video recordings of interrogations limit the chances of false confession, which can even be obtained unintentionally. These are both doable actions. They aren’t impossible and they don’t unduly burden law enforcement agencies. They serve the public, as the families of the women Sanchez murdered while Capozzi sat in jail might readily agree.

Two years ago, the Legislature seemed prepared to act, having finally won the support of the state’s prosecutors. But it didn’t act, in effect deciding that it was better to risk sending more innocent people to prison.

This needs to be high on the Legislature’s agenda in 2017, especially that of the Senate, which has been especially recalcitrant. There, Sen. Patrick Gallivan, R-Elma, a former Erie County sheriff and chairman of the Committee on Crime Victims, Crime and Corrections, can make a lasting difference by helping his colleagues see that the issues are critical, resolvable and, ultimately, make for better law enforcement.

No solution will be perfect. Reliable and well-considered systems can restrain the influences of human fallibility, not eliminate them. But it can do that much, diminishing the chances that innocent people will forfeit years of their lives and that others will be murdered while criminals continue to roam the streets.

It's time to exonerate Ethel Rosenberg

The following opinion was published by the Daily Hampshire Gazette on December 5, 2016.

Sixty-three years ago, Robert and Michael Meeropol made their first trip to the White House seeking to save their parents, Julius and Ethel Rosenberg, from execution as Communist spies.

The boys, then ages 6 and 10, are seen in a photo standing at a gate in front of the White House on June 14, 1953, attempting to hand-deliver a letter to then-president Dwight D. Eisenhower in which Michael wrote: “Please let my mommy and daddy go and not let anything happen to them.” The plea failed and the Rosenbergs were executed on June 19, 1953.

Last Thursday, the brothers reenacted their visit to the White House, this time seeking a proclamation from President Barack Obama exonerating their mother by declaring that she was not a spy for the Soviet Union and that she was unjustly convicted and executed. Michael, 73, who lives in New York, and Robert, 69, of Easthampton, have spent some four decades trying to clear their mother’s name.

It is past time for the U.S. government to acknowledge this grievous wrong that was committed during the “Red Scare” of the 1950s. While many people were victimized by the anti-Communist hysteria fueled by demagogues such as U.S. Sen. Joseph McCarthy, Ethel Rosenberg, who was a Communist, stands atop the list because she paid with her life after being accused with her husband Julius of committing the “crime of the century” by passing secrets about the atomic bomb to the Soviets.

 By issuing the proclamation, Obama would make a powerful, cautionary statement not only about the the Cold War-era of the 1950s, but also about fears stoked by the anti-Muslim rhetoric of president-elect Donald Trump. That message should be to reject guilt by association and sweeping generalizations – whether it be labeling all Communists as un-American 60 years ago, or all Muslims as terrorists today.

The documents available today show that Julius Rosenberg was part of one of several spy rings run by the Soviet Union in the United States after World War II, although the nature of the information he passed on during his espionage is disputed. His sons maintain that he did not give up secrets about the atomic bomb.

The Rosenbergs were convicted largely as the result of testimony by Ethel’s brother Army Sgt. David Greenglass, who worked as a machinist at the Los Alamos, New Mexico, headquarters of the Manhattan Project to build the atomic bomb. Greenglass and his wife Ruth testified during Ethel Rosenberg’s trial that she had been present at two meetings in 1945 with her husband and the Greenglasses. According to the Greenglasses’ testimony, at one of those meetings David gave Julius a sketch of the atomic bomb, while Ethel typed notes.

However, David Greenglass, who  was indicted as a co-conspirator and sentenced to 10 years in prison, gave different testimony to a grand jury before the trial. Documents released in 2015, a year after his death, had no mention in his grand jury testimony of Ethel Rosenberg’s presence at either meeting. Instead, Greenglass told the grand jury: “I never spoke to my sister about this at all.”

The Meeropol brothers contend that Greenglass fabricated his testimony at Ethel Rosenberg’s trial after reaching a deal with prosecutors to reduce his sentence.

In addition to delivering documents supporting their case to the White House last week, the Meeropols have an online petition (www.rfc.org/ethel) seeking exoneration for Ethel Rosenberg. As of Monday afternoon, it had been signed by 44,336 people.

In an accompanying statement, the Meeropols write that “our parents’ execution helped fuel a dangerous climate of fear and intolerance in our country which permitted political opportunists like Senator Joseph McCarthy to poison our society. Today we face a similar climate of hatred which targets immigrants, Muslims, LGBTQI individuals and others.”

Congressman James P. McGovern of Worcester last week wrote a letter to Obama urging him to issue a proclamation acknowledging the politically motivated injustice in Ethel Rosenberg’s execution. “By so doing, you can send a clear message to the American people that our government’s actions must be just, humane and accountable,” McGovern told the president.

That would be fitting as one of Obama’s final acts before he leaves office in January.

Guilty until proven innocent, in Colorado

The following opinion by David Post was published by the Washington Post on November 21, 2016.

The Supreme Court will hear arguments this term in Nelson v. Colorado, a case raising some interesting and important questions about the scope and meaning of the “presumption of innocence.”

Shannon Nelson was convicted in 2006 of five sexual assault offenses she allegedly committed against her children. In addition to a prison term, Nelson’s sentence included several monetary charges that state law imposes on defendants who are convicted of crimes, including (1) a $125 fee designated for Colorado’s Crime Victim Compensation Fund; (2) a $162.50 “surcharge” designated for Colorado’s Victims and Witnesses Assistance and Law Enforcement Fund; (3) a “docket fee” of $35; (4) a “time payment fee” of $25; and (5) restitution amounting to $7,845, for a total of $8,192.50.

Because she was unable to pay, the Colorado Department of Corrections began deducting money from her inmate account while she was incarcerated to satisfy the debt she owed to the state.

Nelson’s convictions were reversed on appeal, and on retrial she was acquitted of all charges. She then filed a motion with the trial court, seeking a return of the money — $702.10 — that had been transferred from her prison account to the state pursuant to the now-vacated conviction.

The Colorado Supreme Court, over a stinging dissent by Justice William Hood, held that the trial court did not have the authority to order the state to refund Nelson’s money and that in order to obtain that refund, Nelson would have to file a separate civil action under Colorado’s Exoneration Act. That statute, enacted in 2013, authorizes an award of compensation (up to $70,000 per year of incarceration) to those who have been wrongfully incarcerated; additionally, it provides for a refund of fees and costs paid to the state.

But individuals seeking such compensation and/or refund must prove, by “clear and convincing evidence,” that they were “actually innocent” of the crime with which they were charged – not merely that they were “legally innocent” by virtue of never having been (validly) convicted, but innocent in fact.

In other words, Nelson will not be “presumed innocent” in the Exoneration Act proceeding; to get her money back — money that the state acknowledges it would have had no claim on but for the now-vacated criminal conviction — she will have the burden of persuading the court that she was, in fact, innocent of the crimes charged.

It hardly seems fair.  You’ve seen it a thousand times on TV, the guy who’s been released from jail who picks up, on his way out the door, all the stuff he had to turn over to the cops when he was taken into custody — keys, phone, loose change, wristwatch … It’s as though Colorado were to say: “We’re not going to give you your stuff back unless you go to court and prove – by clear and convincing evidence, no less! – that you’re actually innocent of the crime we thought you had committed.”

An amicus brief submitted by the Institute for Justice and the Cato Institute (that I helped write, and for which I’m counsel of record) argues that not only is it not fair, it violates fundamental due-process principles to reverse the presumption of innocence in this way.

There may well be no principle of law more familiar to most people — if only from the uncountably large number of TV shows and movies that have repeated the formulation — than the notion that a criminal defendant is “presumed innocent” of all charges, and that the government has the burden of proving guilt by proof “beyond a reasonable doubt.” And indeed, the Supreme Court has held (see Coffin v U.S., 156 U.S. 432 (1895)  and In re Winship, 397 U.S. 358 (1970) ) that both parts of that formulation — that there is a “presumption of innocence” and that it can only be overcome by proof “beyond a reasonable doubt” — are incorporated into the due process clause of the Fifth Amendment, applicable to state proceedings through the 14th Amendment.

The tricky part about this case is that Colorado hasn’t reversed the presumption in a criminal proceeding; it is not proposing to force criminal defendants to prove their actual innocence to avoid a criminal conviction. That would be blatantly, and incontrovertibly, unconstitutional. Instead, it is placing the burden of persuasion on Nelson (and others in her position) in a civil proceeding — an Exoneration Act action for a refund of fees and costs.

Our brief makes the argument, though, that due process requires that the state apply the presumption of innocence even in the civil action authorized by the Exoneration Act, at least with respect to persons who, like Nelson, are not seeking some special benefit from the state (i.e., compensation for the time they wrongfully served), but who are, rather, just seeking to get back money that is rightfully theirs.

As we point out, the “presumption of innocence” has extraordinarily deep roots in Anglo-American — indeed, in Western — jurisprudence, traceable as far back as the Book of Deuteronomy (“one witness is not enough to convict anyone accused of any crime”) and the law of ancient Rome (in the maxim “de quolibet homine presumitur quod sit bonus homo donec probetur in contrarium,” or “each person may be presumed to be a good man, until the contrary is proved”).

In some ways, it’s a tricky legal construct, starting with the idea that it’s not a true “presumption” at all.  A true presumption is a rule of evidence, requiring the fact-finder to accept that Fact B (the presumed fact) has been established, either conclusively or until contrary evidence is produced, once Fact A (the basic fact) has been proven.  A true presumption has a basis in fact; we mandate that the inference be drawn, because it is more likely to be true than not. A child born of a husband and wife living together is presumed to be the natural child of the husband. A person who has disappeared and not been heard from for seven years is presumed to be dead. A properly addressed letter delivered to the post office or a common carrier was in fact delivered and received by the addressee.

But the presumption of innocence doesn’t work this way.  It doesn’t mandate that the fact-finder draw any factual inferences at all.  It says nothing about whether the defendant is innocent in fact. It would be odd if it were otherwise; as anyone involved in the criminal-justice system will tell you, it is almost certainly the case that most criminal defendants, in fact, committed the acts on the basis of which they have been charged.

The presumption of innocence isn’t founded on any notion the defendants generally are factually free from blame. It’s a broader principle, rooted in policy, not statistical likelihood, that says that all people brought before a tribunal “are taken, prima facie, i.e., in the absence of evidence to the contrary, to be good, honest, and free from blame, presumed to do their duty in every situation in life, so that no one need go forward, whether in pleading or proof, to show as regards himself or another, that the fact is so, but every one shall have it presumed in his favor.”

It actually works as a kind of anti-presumption.  It forbids a fact-finder from inferring that the defendant did commit the acts charged from the fact that she has been arrested, arraigned, and indicted for a crime. It instructs fact-finders, as the Court put it in Taylor v. Kentucky, 436 U.S. 478 (1978), to “put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced [and] nothing but the evidence, i.e., no surmises based on the present situation of the accused.”

In an influential law review article published in 1895, the eminent evidence scholar James Bradley Thayer put it nicely thus:

    “It [the presumption of innocence] says simply this: ‘It is the right of this man to be convicted upon legal evidence applicable specifically to him. Start then with the assumption that he is innocent, and adhere to it till he is proved guilty. He is indeed under grave suspicion, and it is your duty to test and fairly to weigh all the evidence against him as well as for him. But he is not to suffer in your minds from these suspicions or this necessity of holding him confined and trying him; he is to be affected by nothing but such evidence as the law allows you to act upon. For the purposes of this trial you must take him to be an innocent man, unless and until the government establishes his guilt.’ The presumption of innocence reflects a long-standing societal judgment that ‘in the eyes of the law every man is honest and innocent unless it be proved legally to the contrary’.”

Shannon Nelson is legally innocent of any crimes.  Whether she is factually innocent of those crimes has not been determined and is irrelevant; in the eyes of the law, she is, like all of us, assumed to be “honest and innocent,” and Colorado can’t deprive her of her property until and until it proves otherwise (which is has not done).

* * * 

David G. Post taught intellectual property and Internet law at Temple and Georgetown Law Schools, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace (Oxford). He is currently is a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.

Facing death, Kevin Keith deserves a new trial

The following editorial was published by the Akron Beacon Journal on November 11, 2016.

Kevin Keith sat on death row for 16 years. Then, in 2010, Ted Strickland commuted his sentence to life in prison without the possibility of parole, rightly citing “too many real and unanswered questions” about whether Keith committed a triple murder at an apartment in Bucyrus. That was partial justice for Keith, once a defensive tackle at Canton-McKinley High School. He still needs a way to get back into court for a new trial in which the totality of the evidence would be examined.

Perhaps that opportunity now will come. The Columbus Dispatch recently reported on grave questions raised about the work of G. Michele Yezzo, a longtime forensic scientist at the state Bureau of Criminal Investigation. She retired in 2009 after more than three decades on the job. An examination of her personnel file has revealed years of erratic behavior, threatening and otherwise hostile, even a suspension in 1993.

Most troubling, the record points to concerns that Yezzo slanted her results and conclusions to favor the police and prosecution. The Dispatch noted she often conducted her analyses of murders and other high-profile felonies with little oversight.

Lee Fisher, a state attorney general in the 1990s, told the Dispatch he “would call for an investigation into every case where her findings and conclusions were instrumental in the final result,” citing “an obligation to the integrity of the criminal-justice system. … ”

Jim Petro, the attorney general a decade later and part of the current Kevin Keith defense, described Yezzo’s work to the Dispatch as “shoddy at best.” He added: “Any case where she provided forensic evidence that resulted in a conviction now comes into question.”

Mike DeWine, the current attorney general, told the Dispatch that his office has conducted two such reviews since learning about the problem in 2015. He reports the examinations turned up no issues.

That doesn’t seem to fit the Keith case. A key factor for the prosecution was the Yezzo analysis of a partial impression of a license plate number left in a snow bank by the alleged getaway car. In 2010, the Keith defense hired one of the nation’s leading forensic experts to review the analysis. He found the impression did not match the bumper of Keith’s car. He also concluded there wasn’t sufficient detail about the plate numbers.

Add these findings to the erosion of eyewitness testimony, plus credible information pointing to a likely alternative suspect, and the case against Keith weakens to the point of a wrongful conviction.

As the Dispatch reported, a judge in Huron County already has dismissed the 1993 murder conviction of a man due to the sloppy work of Yezzo.

Kevin Keith came within two weeks of execution. Imagine the horror if he had been put to death by the state and six years later all of this surfaced. That helps explain why Ohio lawmakers must enact the recommendations of the Supreme Court task force on the death penalty, especially those items designed to prevent wrongful convictions and execution. It also points to doing what is just, granting Keith a new trial.

JonBenet Television "Reinvestigations"

by Sheila Berry, Executive Director
Truth in Justice

In the span of two weeks, NBC, Investigation Discovery and CBS have given us heavily publicized "reinvestigations" of the murder of 6-year-old JonBenet Ramsey in Boulder, CO on December 26, 1996.  Of these, the first two were pedestrian rehashes, but the CBS 2-part special can only be accurately described in three words:  What a crock.

Lets review the "experts" involved in this article: The team consisted of a man accused by a judge of hiding and/or destroying evidence, a former FBI profiler, a chief investigator, a forensic pathologist, a former linguistic profiler, a criminal behavior analyst, and a former statement analyst. Aside from the investigator and pathologist, none of the disciplines these people represent are based in any hard science. We are in the day and age where fingerprints, firearms, shoeprints and DNA are all being challenged as being unreliable.

Funny, it wasn't too long ago that in the Phil Spector murder trial, Henry Lee was identified as part of a serious problem.  http://www.cnn.com/2007/US/law/12/11/court.archive.spector4/index.html?iref=nextin  The judge in that case concluded that Lee hid or destroyed evidence from the scene of an actress's death, evidence that the prosecution contends was potentially damaging to the music producer's case

Ghost Hunters shows greater objectivity trying to understand EVPs than these “experts” did in reviewing the 911 call. “Might be” becomes “definitely is” and then it “changes everything.” Their “analysis” of the ransom note is nothing more than hocus pocus in a lab coat.

They know that handwriting comparison cannot be done when the questioned writing is made with felt tip pen, because it is impossible to discern the pressure used and hesitation marks that are key to identifying authors. No matter. They forge ahead and declare a woman wrote it. I’ve seen their work before, finding innocent people guilty because their handwritten statements don’t fit the experts’ preconceived notions.

So brand new underpants could contain DNA from someone on the assembly line when they were made. Was JonBenet wearing new underpants? Who knows? Who cares? Score another one for the experts.

How about the male DNA under her fingernails? Doesn’t fit the theory so they have to leave it out. Same with the black duct tape over her mouth, never found in the Ramsey house, although evidence suggested "it came from a roll of tape that had been used before." Nothing in the Ramsey home matched dark animal hairs found on the duct tape and JonBenét's hands. Just leave that out, too. Leave out the pubic hair found on the blanket in which she was wrapped, unless the claim is that her 9-year-old brother was sexually precocious and fully developed. A baseball bat found outside the house with fibers consistent with fibers found on the carpet in the basement where JonBenét's body was found did not belong to the Ramseys. Brown cotton fibers found on JonBenét's body, the paintbrush used as a garrote, the duct tape and the ligature around her neck did not match anything in the Ramsey home. Forget all of that. It's all very interesting, but they have a suspect, and it just doesn't fit.

There was a lawsuit 16 years ago, filed by Robert Christian Wolf against John and Patsy Ramsey. Wolf was a Boulder, CO journalist who was questioned by police as a possible suspect in the case. He sued the Ramseys, claiming they defamed him by naming him as a suspect in their book, "The Death of Innocence: The Untold Story of JonBenet's Murder and How Exploitation Compromised the Pursuit of Truth." (Nothing has changed in that department.) U.S. District Judge Julie E. Carnes granted summary judgment in favor of the Ramseys and against Wolf, and in her 93-page dismissal order, reviewed all of the evidence pertaining to JonBenet's murder. A 2003 report from the Fulton County Reporter is at http://truthinjustice.org/ramsey.htm. and Judge Carnes' dismissal order can be downloaded via Pacer.

Salacious speculation and innuendo, the contemporary version of spectral evidence, are all it takes to point the finger at a 9-year-old kid. I used to wonder what the term “media whore” meant. Now I know.

California's Prop. 66 will increase the risk of executing the innocent

The following opinion by Van Jones was published by The Orange County Register on September 18, 2016.

Philando Castile. Eric Garner. Alton Sterling. It goes on and on. Terrifying displays of violence against innocent black men and communities of color are fueling national attention on racial inequality across the country. The criminal justice system, in particular, demonstrates these inequalities.

While disparate treatment by police has garnered the most attention, racial inequalities exist at every stage of the criminal justice process — all the way to the ultimate punishment: the imposition of the death penalty. This fall in California, the repercussions of racial disparities in death penalty sentencing could become much worse if voters enact a reckless ballot measure: Proposition 66.

Proposition 66 is a misleading initiative that will change death penalty procedures in several ways that will increase the state’s risk of executing innocent people. Prop. 66 would remove important legal protections that currently exist in California law to prevent the ultimate injustice. As with most criminal justice policies, Prop. 66 would disproportionately affect people of color. Black and Latino men, in particular, will be at greater risk of being executed for crimes they didn’t commit. Of the 156 innocent people exonerated from death rows nationwide, 61 percent were people of color.

People of color account for more than half of those awaiting execution, while only representing one-third of the general population in the U.S. In California, these disparities are even more stark. Black people account for 57 percent of the folks on death row but only 7 percent of the general population. In 2015, 86 percent of new death sentences were given to people of color. One California study found that individuals who kill a white victim are three times more likely to get a death sentence than those who kill a Latino victim, and four times more likely to get a death sentence than those who kill an African American victim.

Systemic racial bias in the death penalty is also demonstrated by lack of diversity among prosecutors and juries. A 2015 study found that 95 percent of elected prosecutors in states that allow the death penalty are white. Even in a state as diverse as California, 83 percent of elected prosecutors are white. Research over the past several decades has demonstrated that people of color are excluded from serving on juries in capital cases at much higher rates.

If passed, Prop. 66 would make California’s death penalty laws more similar to Texas’ laws, which have resulted in the execution of at least two innocent people in recent memory. One of those people was Carlos De Luna. De Luna was wrongfully convicted and sentenced to death for murder, even though no blood, DNA or fingerprint evidence linked him to the crime. Due to Texas law, De Luna was unable to adequately present evidence of his innocence and was executed, despite the fact that another man who bared striking resemblance to De Luna admitted to the murder.

Prop. 66 would make it harder for defendants to introduce newly discovered evidence of their innocence. For all the reasons above, people of color would be most at risk of suffering adverse consequences. In this case, Prop. 66 literally could be the difference between life and death for innocent people.

As if increasing the risk of executing innocent people was not reason enough to vote no, Prop. 66 will vastly increase costs to Californians and strain scarce resources. The initiative is confusing, poorly written and lacks understanding of how the death penalty operates in California, which will lead to substantial burdens for taxpayers and government agencies. The state’s nonpartisan analysts estimate that Prop. 66 will increase costs to taxpayers by tens of millions of dollars plus even more “unknown” costs. The initiative will add more layers of government bureaucracy by requiring local county courts to adjudicate death penalty appeals (currently, the state Supreme Court handles these), creating the exact opposite of expediency and encumbering already overburdened agencies with life-and-death responsibilities they are not equipped to handle.

It is time to send a message that we will not tolerate racial bias in any aspect of the criminal justice system, including in the administration of the death penalty. We must oppose any and all measures that would increase the chance of executing innocent men and women. We have seen too many innocent people of color killed for no reason other than their skin color. People of color would be disproportionately affected by this reckless and ill-conceived measure. Californians must vote no on Prop. 66.

Van Jones is a CNN political contributor, attorney, and has founded and led numerous social enterprises engaged in social and environmental justice.

Journal Times editorial: State should let Brendan Dassey, Steven Avery's nephew, go free

The following editorial was published by the Journal Times (Racine, Wisconsin) on August 21, 2016.

The seemingly never-ending case of the murder of Teresa Halbach took another strange turn this month, when a federal magistrate in Milwaukee overturned the murder conviction of Brendan Dassey, the nephew of Steven Avery who also was convicted in the crime.

Halbach, a 25-year-old photographer, was raped and brutally murdered on Halloween 2005 near Avery’s Manitowoc County family salvage yard, where she had gone to take photos for a car sale magazine. Her bones were later found in a burn pit near Avery’s trailer.

U.S. Magistrate Judge William Duffin concluded that Dassey’s constitutional rights had been violated and was highly critical of the actions of investigators, Dassey’s attorney and state courts in securing a pressured confession from the then-16-year-old who suffers from learning disabilities.

He gave prosecutors 90 days to decide whether to retry Dassey, who has been in prison now for almost a decade, to appeal his decision or to set him free.

Duffin wrote in his 91-page decision that the prosecutor’s investigators made false promises to Dassey during multiple interrogations.

“These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits and the absence of a supportive adult, rendered Dassey’s confession (which was later recanted) involuntary under the Fifth and Fourteenth Amendments,” Duffin wrote.

He added that “based on its review of the record, the court acknowledges significant doubts as to the reliability of Dassey’s confession. Crucial details evolved through repeated leading and suggestive questioning and generally stopped changing only after the investigators, in some manner, indicated to Dassey that he finally gave the answer they were looking for.”

Indeed, transcripts of the interrogations — conducted without a parent or legal counsel present — show exactly that, with the investigators telling him repeatedly that they are on his side and that they knew all the details of the murder, but just needed Dassey to tell them.

Dassey’s accounts varied widely, with investigators prompting him until they got answers that squared with their narrative. In one sequence, Dassey tells them Halbach was never in the garage on the property, then moments later says she was shot in her car inside the garage — and then says she was on the floor of the garage when she was shot.

One investigator affirmed that narrative and tells him: “That makes sense. Now we believe you.”

Through it all, Dassey clearly buys into the veiled promises of his interrogators that if he is honest, he will be set free. He is so apparently clueless as to the import of his confession that, at the end, he asks his interrogators: “Am I going to be (back) at school before school ends?”

Told, instead that he is being arrested, he asks: “Is it only for the one day, or ...”

What is remarkable about Dassey’s case is that state courts did not countenance appeals on his behalf. A coerced or guided confession from a young, mentally challenged boy is not something we expect from our criminal justice system. Yet the Wisconsin State Supreme Court declined to take it up.

So where does the state go from here? The most likely scenario is that the state will appeal Duffin’s decision, because prosecutors never like to give up a conviction. It is highly unlikely they will go back to court to retry Dassey, because they would have to do so without his recanted confession. There is little or no physical evidence connecting him to Halbach’s murder.

The other option is to set Dassey free — and the state should give that choice serious consideration.

Avery will still be behind bars and – barring some new exculpatory evidence, which his appeals lawyer has promised and may come in an appeals filing this month – he will stay there. Dassey never testified at his uncle’s trial and his release would not affect Avery’s case.

We would like to see this sordid, heinous piece of Wisconsin history put in the past, but that seems unlikely any time soon.

Rare Chance for Mercy on Texas’ Death Row

The following editorial was published by the New York Times on August 18, 2016.

When it comes to capital punishment, there is not much official mercy to be found in the state of Texas.

As 537 death row inmates were executed there over the last 40 years, only two inmates were granted clemency. The last commutation to life in prison occurred nine years ago, when Gov. Rick Perry, despite his formidable tally of 319 executions, chose to make an exception and spare a man convicted of murder under the state’s arcane and patently unfair “Law of Parties.”

This law in effect holds that someone waiting outside at the wheel of a getaway car deserves the same capital punishment as his associate inside who shoots and kills a store clerk. This is the rough equation that now finds Jeffrey Wood on death row in Texas, 20 years after his involvement in just such a crime. The actual killer was executed in 2002; Mr. Wood faces execution next Wednesday as a somehow equally culpable party, unless the state commutes his sentence to life in prison.

The Law of Parties has been on trial as much as Mr. Wood has in the arduous criminal justice process in which he faces death. With an I.Q. of 80 and no criminal history, Mr. Wood, who was 22 then, was initially found by a jury to be incompetent to stand trial. But the state persisted, and he was convicted in a slipshod proceeding in which no mitigating evidence or cross-examination was attempted in his behalf during the crucial sentencing hearing.

Mr. Wood bizarrely demanded to represent himself, but was ruled incompetent as a counsel — yet not as a defendant. He maintained he was forced at gunpoint into being a robbery accomplice. As the case ground forward, a federal judge stayed the last scheduled execution date in 2008 because of Mr. Wood’s repeatedly eccentric behavior.

The theory underpinning the Law of Parties — that an accomplice deserves to die even though he did not kill the victim — has been abandoned as difficult to apply if not unjust in most state jurisdictions in recent decades. It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty. Since the death penalty was restored in 1976, there have been only 10 executions in six states under accomplice culpability laws, in which defendants did not directly kill the victim, according to Texas Monthly. Five of them have been in Texas. Jared Tyler, Mr. Wood’s lawyer, who specializes in the state’s death row cases, says he has never seen a sentence of execution “in which there was no defense at all on the question of death worthiness.”

This is just one of many grounds for the clemency that four dozen evangelical leaders have recommended to avoid a gross injustice. The state parole board would have to make this recommendation, with the final decision by Gov. Greg Abbott, who has not granted clemency in 19 executions.

The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is. The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared.

An Innocent Prisoner’s Will To Be Free

The following post by Lorenzo Johnson was published by the Huffington Post on August 15, 2016.

At the age of 22, I was caught up in the wave of mass incarceration and wrongfully convicted of murder. This took place in a state I wasn’t from or and where I had no family.

I had dropped out of school at an early age, so when I entered the Pennsylvania Department of Corrections, my reading and writing level were so low that I was to attend Adult Basic Education classes.

I remember my first time going to the prison law library. I informed the clerk who was assisting prisoners that I was innocent and needed help. He gave me a look like he had heard my story a hundred times before, and then he gave me a book entitled Pennsylvania Criminal Rules and Procedures. This book was at least 500 pages. I took this book and sat down at the table with it. I couldn’t even read it, let alone understand it. I sat at this table sad, mad, and very embarrassed.

I went on to study for my GED. I eventually passed the test. I couldn’t afford the college courses that were available, so a friend let me study his books once his semester was over. Once I got the money I enrolled. A fire was lit within me. I began to realize how I had been taken advantage of due to being illiterate. I returned to the prison law library to study. Not only was I studying the law, I began studying my case file—at least, the incomplete case file I was given. I literally had gotten sick uncovering how my constitutional rights were not only violated but disregarded as if I wasn’t a human being.

By this time, the same court-appointed attorney who represented me at my trial was also representing for my direct appeal. Unfortunately, once my direct appeal was denied, I no longer had a lawyer. I could not afford to hire my own attorney. I’ll never forget sitting in the prison cell with nowhere else to turn. I looked in the mirror and told myself, “The time is now. You can do it.”

I had a one year time frame to file my Post Conviction Relief Act (P.C.R.A.) Petition. If I did not make this deadline, I would forfeit my right to argue my innocence. By this time, I was enrolled in a business education class that also taught typing. At this point, because I had no lawyer, I was officially representing myself. Ten months later, I filed my P.C.R.A. Petition to the courts pro se—by myself. I was granted an evidentiary hearing and was appointed an attorney to represent me.

This attorney abandoned me after my appeals were denied and never even contacted me when my last appeal was denied—I only found out about it months later. This almost caused me to lose my appeal rights. Once again I began representing myself. I had come to the conclusion that no one would fight for my innocence harder than me. That being said, as I continued my fight and I also reached out to hundreds of Innocence Projects and attorneys for help.

My appeals were running out. I was down to my last round of federal appeals. I had to deal with the reality that—if I were to lose—I would die in prison an innocent man.

I went on to file my federal habeas corpus appeal pro se. I gave it all I had. I had to deal with the fact that the prosecution withheld evidence of my innocence and never turned it over to me or any of my previous attorneys.

A well respected attorney came to my aid by the name of Michael Wiseman. He believed in me and my innocence. Mr. Wiseman and his team accepted my case on a pro bono basis. He amended my appeal and adopted the issues I raised pro se.

After sixteen and a half years in prison for a crime I was innocent of, the U.S. Third Circuit Court of Appeals vacated my sentence on the grounds of insufficient evidence—which is equivalent to a “not guilty” verdict—and ordered my immediate release, barring a retrial. I was released and reunited with my family.

But my experience of justice and happiness was short-lived and lasted a mere 148 days. The prosecutor in my case appealed to the U.S. Supreme Court, which reinstated my conviction in a single day and denied my attorneys the right to file briefs or make oral arguments. I had to return to prison just months after being exonerated.

After eighteen and a half years, my legal team finally got their hands on some of the missing pages of my case discovery that the prosecutors had never turned over. After all this time, we found out not only that the prosecution knew I was innocent from day one, but that they let false testimony go uncorrected from the start of my court proceedings all the way up to the Supreme Court.

I’m now heading back to court twenty years later. Hopefully, it will be once and for all. If not—I will NEVER stop fighting to prove my innocence. I’m one of MANY innocent prisoners.

Lorenzo Johnson served 16 and a half years of a life-without-parole sentence until 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 him back to prison to resume the sentence. With the support of The Pennsylvania Innocence Project, he is continuing to fight for his freedom. Though he does not have internet access himself, you can email his campaign, make a donation, or sign his petition and learn more at: http://www.freelorenzojohnson.org/sign-the-petition.html.