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.