U.S. Justice Targeting Conrad Black

The following op-ed by Peter Worthington was published in the Toronto Sun on July 19, 2010.

That the U.S. Internal Revenue Service would bring suit against Conrad Black, claiming $71 million in unpaid taxes, reeks of malice more than justice.

It’s hard to escape the conclusion the tax charges emanate from the U.S. Supreme Court’s ruling on Black’s behalf, and sending back to the appeal court his conviction on three relatively minor fraud charges and obstruction.

The clear message is he was found guilty on “honest services” charges that don’t exist in his case.

The Supreme Court ruled “honest services” apply only to bribery and kickbacks, neither of which applies to Black.

Instead of rolling with the counter punch and admitting error, the U.S. justice system dredged up the tax issue, which Black’s lawyers say shouldn’t apply because he paid Canadian taxes between 1998 and 2003.

The charges seem designed to cost Black money he probably doesn’t have for lawyers’ fees — more Department of Justice vindictiveness.

One need look no further than Patrick Fitzgerald, U.S. Attorney for the district of Northern Illinois, to see the bitterness and lust for revenge against Black.

Prosecutors were embarrassed when the original trial found Black not guilty of nine of the most serious fraud charges, and they were mortified and embarrassed again when the Supreme Court lambasted them.

The moral of the IRS tax charges is don’t mess with American Justice, which has a record and reputation of malevolence and meanness, regardless of errors the system makes.

Take John Demjanjuk, an aging Ukrainian auto worker whom the Justice Department decided was Ivan the Terrible, a sadistic Nazi prison guard at Treblinka and extradited him to Israel where he was initially sentenced to death.

To its eternal credit, the Israeli Supreme Court ruled Demjanjuk was not Ivan the Terrible and his conviction was a grotesque error of mistaken identity, and freed him. Rather than acknowledge error, the U.S. Justice Department kept after Demjanjuk, dug up other charges from another Nazi camp, revoked his citizenship and deported him to stand trial in Germany.

No one was ever punished or called to account for falsely branding Demjanjuk as a war criminal. During the war, he was a Ukrainian conscripted into SS auxiliaries.

The U.S. justice system is equally vindictive towards Leonard Peltier, convicted of murder in the death of two FBI agents killed in a range war at the Lakota Sioux reserve at Pine Ridge in 1975. The trial was admittedly fraudulent, but the justice system refused to consider releasing Peltier 35 years after the incident.

Even the appeal judge in his case urged the president to show clemency. But the system is unmoving, refusing to admit error or forgiveness. Lost in the case is the fact an Indian youth was shot and killed when the agents were, but no investigation was ever carried out.

Some double-standard.

Laurie Bembenek was falsely convicted in 1981 of murdering her husband’s ex-wife in Milwaukee. She escaped 10 years later to Canada, where Toronto Lawyer, and now Superior Court Justice, Frank Marrocco took her case pro bono and got her freed.

The Wisconsin justice system never forgave her, and though she paid for various DNA tests that proved her innocence, the system remains adamant and won’t apologize.

So it’s no surprise the system is taking another run at Conrad Black, with arguably the most vindictive prosecutor in the U.S. determined to get him.

Nor is it surprising the U.S. has the world’s highest documented incarceration rate — a prison population of some 2.5 million.

Jersey Democrat, Justice Integrity Project on Kagan Nomination

Jersey Democrat, Justice Integrity Project
Urge ‘No’ On Kagan, Citing Rights Concerns

Washington, DC (July 19, 2010) – The Senate should reject Democrat Elena Kagan’s Supreme Court nomination based on her shabby civil rights record that’s apparent from her Department of Justice work, according to a Democratic former New Jersey legislator and Jersey City mayoral candidate.

Louis M. Manzo, drawing on his experience fighting one of the nation’s most explosive political prosecutions, said the Senate should reject Kagan because of “her indefensible support of restrictions on constitutional freedoms and her failures to defend due process.”

The bipartisan Justice Integrity Project (JIP) today released Manzo’s statement by video to illustrate the project’s objections to Kagan on similar executive power grounds. The civil rights project announced its objections on June 28, just before the Supreme Court thwarted Kagan’s effort to block a hearing for former Alabama Gov. Don Siegelman. Manzo’s statement and similar constitutional criticisms of Kagan are available before Senate voting at JIP’s unique website, which includes substantive criticism of her.

“While serving as Solicitor General arguing against certiorari in Siegelman v. United States, Kagan ignored constitutional protections provided by due process,” Manzo said. “Also troubling is the manner by which Kagan feigned ignorance to what is frightfully apparent in Siegelman’s case – prosecutorial misconduct. Instead of questioning the bizarre prosecution tactics employed against Siegelman, Kagan blindly supported positions taken by prosecutors with obvious personal and political agendas.”

“What all cases involving wrongful prosecutions share in common,” said Manzo, a target in the Bid Rig III case in New Jersey that helped propel Republican U.S. Attorney Chris Christie to New Jersey’s governorship last fall, “is the necessity of a fair judicial system.” In Bid Rig III, DOJ gave a felon large sums to donate to New Jersey campaigns such as Manzo’s, with Democrats overwhelmingly indicted. Manzo won a major victory this spring when his trial judge dismissed the most serious charges.

Expanding on Manzo’s themes, JIP Executive Director Andrew Kreig cited compelling evidence that Siegelman, 64, was framed by DOJ, which seeks to imprison him for 20 more years.

“The gist,” said Kreig, “is that Kagan acted selfishly to advance her technocrat career, combining bad legal judgment with a monstrous cover-up. This opens a window to her other failings, which don’t receive the attention they deserve. Senate confirmation these days is largely kabuki-style theater for the public, fostered by a bipartisan, back-scratching elite. Here, a president’s loyalists seek to install one of their cronies over timid, partisan objections about a few special-interest topics. But we are skipping big issues about due process and our other basic liberties, which would inflame the public if ever fully aired.”

About the Justice Integrity Project

The Justice Integrity Project examines potentially abusive prosecutorial and judicial decisions. Its research so far includes prosecutions against Democrats Siegelman and Manzo, Republicans Bernard Kerik and Ted Stevens, and targets in military and other national security work.

Louis M. Manzo Statement*

Opposing Confirmation of Elena Kagan to the U.S. Supreme Court

(Click for video)

As a case study of the Justice Integrity Project, I am speaking today to urge defeat of Elena Kagan’s nomination to the Supreme Court.

What all cases involving wrongful prosecutions share in common is the necessity of a fair judicial system where redress can be attained in the courts of our land.

While serving as Solicitor General, arguing against certiorari in Siegelman v. United States, Kagan ignored Constitutional protections provided by due process. She argued a position that supported the “standard-less sweep [of the law], which allows policemen, prosecutors and juries to pursue their personal predilections” – something previous courts had guarded against.

Her position was an assault on due process.

Despite concerns raised in the opposing argument – the danger posed by vague interpretations of criminal statutes, which infringe on the protections of free speech as provided by the First Amendment – Kagan ignored the sound opinion of the unprecedented position taken by 42 former United States State Attorneys General** and a United States Attorney General who filed an amicus brief in support of Siegelman’s argument.

***
Kagan defended a position that would restrict Constitutional freedoms.

Also troubling is the manner by which Kagan feigned ignorance to what is frightfully apparent in Siegelman’s case – prosecutorial misconduct. Instead of questioning the bizarre prosecution tactics employed against Siegelman, Kagan blindly supported positions taken by prosecutors with obvious personal and political agendas.

These are attributes which are ill-suited for members of the highest Court in our land. Due process is the examination of the means used to justify the end. Her nomination would pose a grave threat to victims of due process violations, whose only redress is the courts.

For her indefensible support of restrictions on Constitutional freedoms and her failures to defend due process, Elena Kagan should be denied confirmation as a Supreme Court nominee.

###

The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill

The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill

by James Scanlan

In a June 23, 2010 editorial here on the nomination of Robert E. O’Neill for the position of US Attorney for the Middle District of Florida, among other things suggesting O’Neill’s unsuitability for the position, I pointed out that O’Neill made a false statement in an application for the position that he submitted to the Florida Federal Judicial Nominating Commission. In the application, O’Neill attributed the initiation of a District of Columbia Bar Counsel investigation of his conduct in United States v. Deborah Gore Dean to a complaint filed by the defendant. In fact, the investigation was not initiated by Dean or anyone associated with her. I also explained that if O’Neill made the same misrepresentation to a federal entity he likely violated 18 U.S.C. § 1001.

Concern about DC Bar confidentiality rules caused me not to reveal the initiator of the investigation in the earlier editorial. But those rules could not be intended to keep the public from knowing that a nominee for one of the most important law enforcement positions in the country made a false statement in the course of seeking the position, particularly when the nominee may have violated federal law. As reflected in a July 9 letter to Attorney General Eric Holder, the investigation was initiated by the Office of Bar Counsel itself as a result of reading a court of appeals opinion criticizing the conduct of O’Neill and his colleagues in the prosecution of the Dean case. The inference is inescapable that O’Neill misrepresented the origin of the investigation because he believed an investigation initiated by a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission or other readers of his application than an investigation initiated by Bar Counsel itself, especially one prompted by a court’s criticism of O’Neill’s conduct. One would think that such a misrepresentation would disqualify the maker from further consideration for any law enforcement position.

The July 9 letter encourages the Attorney General to advise the President to withdraw the O’Neill nomination. If that does not happen, and if the Judiciary Committee should confirm O’Neill, his tenure will be remarkable for nothing if not irony. For O’Neill has achieved some of his notable successes by provocatively asserting that other people lied. Materials on the Dean case made available under the ’Must’ Reading (and Viewing)” portion of this site give great attention to O’Neill’s 50 or so provocative assertions that Dean lied on the stand, often if not invariably in circumstances where he believed or knew for a fact that Dean had not lied. Section B.1 of the Prosecutorial Misconduct page of jpscanlan.com and Section B of the Robert E. O’ Neill Profile address the way O’Neill and a colleague apparently pressured a government agent into providing testimony that would seem to categorically contradict Dean’s testimony about an interaction with the agent in order that O’Neill could stridently assert that the agent’s testimony showed that Dean lied about the interaction (when O’Neill knew with absolute certainty that Dean had not lied about the interaction). See Section E.2 of the O’Neill profile for other examples of O’Neill’s tactics to facilitate his asserting the Dean lied.

In United States v. Spellissy – a case, like Dean, that O’Neill cites in his application as one of his most important – much of the government’s proof rested on O’Neill’s impeachment of his own witness in these provocative terms:

A liar is a liar. And whether someone is lying to save their soul or their hide, they are still lying. And once you are a liar, you can not trust that person. And for [the witness] to have said what he said in this courtroom, he must have lied repeatedly before the other judge. Or as I said before, he told lies here and told the truth before others.

Only O’Neill knows how often this tactic played a important role in cases that never attracted attention. But regardless of O’Neill’s own practice of calling people liars, in light of the false statement in his US Attorney application, an O’Neill confirmation will diminish the faith of the public in prosecutors generally and the faith of prosecutors in each other. But maybe that would be a good thing. As one observer recently noted:

There is a bond among prosecutors, as there is in most organizations. If a prosecutor makes a statement, there is a consensus among other prosecutors that the statement is correct. For many years, I shared that perspective. I no longer do. Now, I am more apt to question my colleagues when they embark on dubious courses of action. I do not take what a colleague says at face value simply because he or she is a federal prosecutor.

These seemingly philosophical remarks may be found at page 39 of O’Neill’s Florida Nominating Commission application, where he disparages allegations against him by a former subordinate four pages before falsely attributing the DC Bar Counsel investigation of his conduct in the Dean case to a complaint filed by the defendant.

Order in the court - Florida Innocence Commission awaits signature

The following editorial was published by the Tallahassee Democrat on June 29, 2010.

Incoming Senate President Mike Haridopolos, R-Melbourne, found the money in a lean appropriation year to fund an "innocence commission" that would without doubt save the state millions of dollars from incarcerating the wrong person in Florida prisons. In 2008, lawmakers passed a law automatically granting wrongfully imprisoned persons $50,000 for each year they were incarcerated.

Nationwide, 245 post-conviction exonerations have been based on DNA evidence since 1989 and Florida has contributed to almost 80 percent of those cases — clearing 12 Florida Death Row inmates since 2000.

Mr. Haridopolos' support of the $200,000 makes a large investment in public safety, too. When the wrong person is imprisoned for a crime, the actual perpetrator remains at large. Law-and-order standards, he has pointed out, include expectations of having a system that doesn't make such mistakes.

Creating the Florida Actual Innocence Commission is now in the hands of the Florida Supreme Court, specifically incoming Chief Justice Charles T. Canady. It will be up to him to ensure that the commission, which is just now getting organized, will begin the serious work of examining cases where the system has broken down, or has the potential to, such as handling of eye-witness testimony, improper use of evidence, false confessions, crime-fighting tunnel vision and inadequate defense.

The commission won't look for inmates who might be innocent and it's not intended to assign blame or point fingers. Rather it will look after the fact of DNA exoneration at errors of such a magnitude that they undermine our state's reputation for justice and identify broken parts of the criminal justice system. And, obviously, grave errors of justice cause the innocent person to suffer loss of income and reputation and punish their children and families with untold stresses.

Outgoing Chief Justice Peggy Quince is considering an administrative order launching the commission, which has been championed by former American Bar Association president and Florida State University president emeritus Sandy D'Alemberte.

Mr. D'Alemberte's petition called for a permanent, court-ordered panel of legal experts, police and victim advocates that would continue this deliberative work — a pattern recommended by an American Bar Association's assessment team and used in other states.

But the real legacy could well belong to Mr. Canady if he takes the next step in assigning permanence to this body through a court order so it can do more than issue a report and depart. He has the opportunity to make certain that the Florida Actual Innocence Commission helps put Florida in the forefront of actual justice for all.

Curious United States Attorney nomination for one of nation’s busiest districts

by James Scanlan

On June 9, 2010, the President nominated Robert E. O’Neill for the position of United States Attorney for the Middle District of Florida, one of the nation’s busiest districts. O’Neill, currently chief of the Criminal Division in the office, is already discussed in materials made available through the “’Must’ Reading (and Viewing)” portion of this site. Those materials pertain to his conduct as the lead counsel in United States v. Deborah Gore Dean, an Independent Counsel case tried in 1993.

In that case, after the defendant alleged pervasive prosecutorial misconduct, the trial court specifically agreed with much of what the defendant asserted, including that prosecutors failed to disclose exculpatory material while representing that no such material existed, put on witnesses without attempting to determine whether their testimony was true, and had reason to know that the testimony of at least two government witnesses was false. More generally, the court found that prosecutors had acted in a manner reflecting “at least a zealousness that is not worthy of prosecutors in the federal government …” Reflecting the scope of the abuses it identified, the court repeatedly noted its concerns about their “cumulative effect,” observing that it was “almost impossible to quantify the total impact” of the abuses on the defendant’s ability to defend herself. While all criticisms broadly pertained to lead counsel O’Neill, the court also specifically noted that O’Neill had acted in a manner that the court would not have expected from any Assistant United States Attorney who had ever appeared before it. In an appellate decision, in “deplor[ing]” certain prosecutor actions, the Court of Appeals for the DC Circuit not only recognized that the underlying misconduct was severe, but impliedly found that representations prosecutors made in defense of their actions were false.

But the referenced “’must’ reading” materials (which are maintained on my website, jpscanlan.com) reveal that the trial and appellate courts had very limited understandings of the scope of prosecutorial abuses perpetrated by O’Neill and his colleagues, in many instances because prosecutors deceived the courts in responding to the defendant’s allegations. Read especially Section B.1 of the materials, which explains how O’Neill and a colleague pressured a government witness into providing testimony that would be interpreted as categorically contradicting the defendant in order that O’Neill could repeatedly and provocatively state that the defendant had lied on the stand. It also explains how prosecutors deceived the court in order to cover up O’Neill’s conduct. And read the separate profile on O’Neill, which should leave most observers wondering how O’Neill could ever have been nominated, much less confirmed. Of course, the latter remains to be seen.

An issue worth following involves the fact that in an application for the US Attorney position submitted to the Florida Federal Judicial Nominating Commission, O’Neill mentioned the Dean case in several places, including in a response to a question concerning discipline matters. Styling a matter “Deborah Gore Dean, Office of Bar Counsel, The Board on Professional Responsibility, District of Columbia Court of Appeals (1995),” O’Neill stated (at 43): “After her conviction on all counts, Ms. Dean filed a bar complaint alleging a number of instances of prosecutorial misconduct during the trial.”

Nowhere in the application will one get an inkling of the courts’ criticisms of O’Neill’s conduct in the case. The important point, however, is that Dean did not file a Bar Counsel complaint. And while I both filed a formal complaint and submitted various materials to Bar Counsel following Bar Counsel’s request for Dean’s counsel to comment on a response in an ongoing investigation, the Bar Counsel investigation was already in progress when Dean’s counsel and I learned of it. DC Bar confidentiality rules may preclude me from disclosing what person or entity initiated the investigation. So I have encouraged Bar Counsel to advise the Senate Judiciary Committee of what person or entity initiated the proceeding and why the person or entity did so, and in a June 16, 2010 letter, I encouraged the Committee to secure the Bar Counsel record. Once it has information as to the initiation of the Bar Counsel investigation, the Committee can determine whether O’Neill deliberately misstated the origin of the investigation because he believed that a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission than an investigation initiated by the person or entity that actually initiated it. Further, it is hard to believe that the vetting process leading to O’Neill’s nomination did not involve inquires about disciplinary matters similar to those found in the Nominating Commission application. And assuming that in such process O’Neill provided the same response regarding the DC Bar Counsel investigation that he provided in the Nominating Commission application, there is a strong chance that he violated 18 U.S.C. § 1001. For that and other reasons, I suggest that those who follow this nomination process may see an interesting story unfold. The story may well be even more interesting if O’Neill is confirmed – though, to be sure, a rather sadder one. Developments during the course of the nomination process will be addressed in addendums to the O’Neill profile.

Will County apology too little too late

by Eric Zorn

This opinion was originally published in the Chicago Tribune on May 28, 2010.

[Will County}Sheriff Paul Kaupas, whose department brought the original case against Kevin Fox, recently underwent a medical procedure and was unavailable for comment Thursday. Kaupas' spokesman, Pat Barry, issued an apology on the sheriff's behalf. "He is issuing his apology to Kevin Fox and the Fox family," Barry said. "He is grateful that the person who did this has been brought in. Justice is going to be served." ...

This passage jumped out at me considering the time line: Charges dropped based on DNA evidence nearly five years ago. Federal jury award to Melissa and Kevin Fox nearly two and a half years ago. A vile miscarriage of justice inflicted on an innocent man whose daughter had been murdered and only now comes an apology?

The 7th Circuit Court of Appeals chastised the investigators on the case, implying that their decision to quickly rule out the girl's death as the work of a sexual predator was "absurd." The court also found that detectives lacked probable cause to arrest Fox, given the "exceedingly weak evidence" they had assembled.

Fox gave police a videotaped confession at the end of a 14-hour overnight interrogation. He later said the confession was coerced.

Y'think? Barry said today he was unaware if any member of the investigatory team had been disciplined or even reprimanded for their conduct in the Fox case.

Wisconsin: the best justice money can buy

In 2007, the Wisconsin State Supreme Court disciplined Dane County (Madison) Assistant District Attorney Paul Humphrey for twice misleading the judge and withholding evidence from a defendant during a vehicular-homicide case against Adam Raisback that ended in acquittal. A list of cases in which Humphrey's conduct crossed the line into unethical can be found at http://truthinjustice.org/humphrey-cases.htm

Joseph Sommers, Raisback's defense attorney, filed the ethics complaint against Humphrey that led to the prosecutor's discipline. Unfortunately, the Wisconsin State Supreme Court's idea of fairness is to level equally serious charges against any attorney who complains about a fellow lawyer's conduct. As a result, Sommers was brought up on serious charges of unethical conduct as well. Sommers pushed back, which really riled the state's high court, and almost certainly led to Sommers' current predicament. We'll let Joe Sommers tell you what has happened in his own words. Keep in mind,Wisconsin has the best supreme court money can buy. The justices can't help what they do, since they do not understand what ethics are in the first place.

For those who have not heard, things have gotten significantly worse. First, last Friday the Wisconsin Supreme Court issued an order that surpasses everything previously in my matter. The bottom line is, the record will be sanitized, and all transcripts from evidentiary hearings and depositions will be excluded from the record, but for the two days of evidentiary hearings which I did not attend. (The reason why I did not attend those two days was that the Supreme Court's appointed presiding official declared that the evidence from six prior days of evidentiary hearings would not count, and under the Supreme Court Rules, I would be responsible for the costs x 3 for the hearings themselves).

Basically, I proved everything I set out to prove, i.e. that the Supreme Court's in-house law firm orchestrated a cover-up of the Dane County District Attorney's Office orchestrating a criminal conspiracy to railroad innocent people. But even in my most cynical moments I never thought that transcripts from sworn testimony would be so easily and completely removed from the record. This is unprecedented, from my experience. It is critical to realize that the Supreme Court's actions go hand-in-hand with the Wisconsin State Journal's coverage. The paper ignored the testimony, and the Supreme Court now, for all practical purposes, covers up for that by removing the transcripts from the record.

For those who could not make the evidentiary hearings in the past, don't worry. You did not miss anything because those hearings, according to the Supreme Court, did not take place. And for those who did attend, what you thought you heard and saw was nothing more than an episode from the Twilight Zone.

Second, the way things are headed, there is more than a distinct possibility that I will be facing trumped up criminal charges in the near future. For those who say, 'they can't possibly do this. How could they ever get away with it,' I just refer you to the above.

The bottom line is, I just took on evils that were too big and too powerful, to which wipeout is the price. I suppose I was recklessly irresponsible (as I have been told) to think that one should try to do something about criminal prosecutions manufactured against innocent people for the sake of insiders making a buck. If only I would have directed my energies toward meaningful things such as my children's sporting events, etc., rather than thinking in terms of active discipleship and citizenship. How crazy can a guy get?

If I sound embittered, I am. I do appreciate those who did what they could. Unfortunately, when it came to those who could make a difference, they never could work up the courage, imagination or inclination to do anything. If there is one response to this email I request I do not receive it is people telling me how I am in their prayers, etc. While I am not against prayers on my behalf, It is amazing to me how those who harp the most about prayer are so often incapable of lifting a finger beyond that. If only the Good Samaritan would have realized that he merely needed to say a prayer and move on.

About three weeks ago, in a fit of anger, someone tied up in my matter told me that I was a "goner" and that I was "quicksand" for anyone standing nearby. It is often said that truer things are said in jest, and this is likewise true about things said in anger. And the evidence overwhelmingly suggests I am a "goner" and that things are only going to get far worse. And hopefully I will finally internalize that I am "quicksand," and therefore will realize that very few wish to hear from me anymore.

Justice on Hold

The following editorial was published by the Columbus Dispatch on May 10, 2010.

Governor, attorney general should push for testing of DNA for five inmates

The state of Ohio can do only so much to make up for the wrong done to Ray Towler, imprisoned for nearly 29 years for a crime he didn't commit.

But Ohio officials could try to spare others a similar fate.

Other inmates in Ohio prisons deserve DNA testing of evidence that could prove their innocence, as it did for Towler, who was falsely accused of raping a 12-year-old girl and attacking a 13-year-old boy in 1981. In five such cases, courts have rejected requests for retesting of DNA, even though testing could resolve unanswered questions and a Cincinnati DNA lab has offered to work for free.

When The Dispatch published "Test of Convictions," a series of stories in January 2008 highlighting flaws in the state's use of DNA evidence and focusing on 30 cases in which further testing is warranted, Gov. Ted Strickland supported the idea.

"It's not going to cost the county," Strickland told The Dispatch. "I don't know what the justification for trying to block that kind of testing would be."

But he's done little so far to make it happen.

The Ohio Innocence Project, which worked with The Dispatch to identify the cases most worthy of retesting, wrote Strickland a memorandum in February 2009, asking him to intervene in seven cases in which judges had denied testing requests. In two of those cases, appeals courts since have granted inmates the right to a test.

Why Strickland hasn't responded to the request is a mystery. He had it right back in 2008; there is no justification for denying testing in these cases. Attorney General Richard Cordray, who also received the memo, also hasn't spoken up.

If Strickland and Cordray are staying away from the issue because they're loath to alienate law-enforcement groups, that's unfortunate.

Ethical prosecutors and police should welcome the truth that post-conviction DNA testing offers, yet some fight it at every turn. In Towler's case, no one objected to his original request for testing in 2004, but the test didn't happen until 2008, because some of the evidence had been lost.

When results in November 2008 revealed evidence of DNA on the victim's underwear from two men, neither of which could be Towler, he expected to be freed. But Cuyahoga County officials wanted a follow-up test to sort out the issue of the two men. What followed was 18 months of waiting, with multiple issues raised by the county prosecutor's office and no good explanation for why it took so long.

Cuyahoga County Common Pleas Judge Eileen A. Gallagher finally had enough in March and set a short deadline for resolution. Towler was freed on Wednesday.

The 18 months Towler had to spend in limbo compounds the injustice already done to him. Even though a recently passed state law gives Ohio one of the nation's best systems for using DNA evidence to revisit questionable convictions, the law still needs refinements to end delays.

More immediately, the five inmates who have been denied testing deserve to have the truth uncovered. Strickland and Cordray should use their influence to make it happen.

When innocent verdicts still plague citizens

The following editorial was published in the Bradenton (FL) Herald on April 23, 2010.

Florida state law unjustly victimizes some criminal defendants by not allowing those found innocent to have their legal records expunged for at least a decade.

Even after 10 years, statutes require citizens to petition the Florida Department of Law Enforcement. Then citizens found not guilty must survive background checks and meet certain criteria. Next, a judge must approve the expunge request.

Citizens can have case documents sealed after a not-guilty verdict, but arrest records remain. The negative ramifications can follow a person for years if not a lifetime. When potential employers perform a background check, an arrest record will show up — tainting that person’s opportunities. While the courts must presume innocence, employers can look askance at that information and reject a job prospect without citing the reason.

There are many good reasons to keep court records from being purged. Some defendants acquitted by juries are not innocent. Some might escape conviction on a legal technicality even though the evidence supports the prosecution. Law enforcement needs that background information to evaluate possible trends that might be valuable to future investigations.

Statutes do not allow records to be expunged by people with any criminal convictions, and while that sounds reasonable it is also unfair under certain circumstances. A person accused of murder but then discovered to have been misidentified as the case progressed cannot have the dropped charge expunged if his record holds any conviction, even for driving with a suspended license. That scenario played out in real life here with a client of Bradenton defense attorney Greg Hagopian. “It seems unfair,” Hagopian told Herald reporter Robert Napper for an article published earlier this month.
Unfair indeed. That clearly innocent citizen will face a lifetime of diminished prospects. Who would hire someone with a murder charge on their record?

This is a prime example that state law should hold exceptions to the tight restrictions on expunging criminal records. Citizens should not be forced to face the presumption of guilt after a jury finds them innocent.

Legislation that addresses these issues remains bottled up in Senate and House committees. Current law allows a person only one opportunity to expunge a record in their lifetime, and the House bill would expand that to two. The Senate bill allows expunction after a not-guilty jury verdict. Both measures should be enacted into law.

We urge lawmakers to pass these bills in the remaining days of the session.

Postcard Campaign to Free the West Memphis 3

by Natasha Sniatowsky
Arkansas Take Action- Free the 3!
http://www.freewestmemphis3.org/
http://www.wm3.org/

Simply pick up any postcard (depicting your city/country), make your voice heard advocating for these INNOCENT MEN IN PRISON & slap a stamp on it!

In 1993, shortly after three eight-year-old boys were found murdered in West Memphis, Arkansas, police arrested Damien Echols, Jason Baldwin and Jessie Misskelley Jr. and charged the three teenagers with murder based solely upon an error-filled and police-coerced false confession, extracted from 16-year-old Jessie Misskelley Jr. After 12 hours of questioning, without counsel or parental consent, mentally disabled Jessie Misskelley repeated back to the police what he was told to say.

There was no physical evidence, no weapon, no motive, and no connection to the victims. Instead, prosecutors terrified and inflamed the shell-shocked community. Jessie Misskelley recanted his statement immediately upon being released to his family, stating that the police forced, via threat and the lure of money, the story he told, but it was too late. Misskelley, Jason Baldwin and Damien Echols, known as The West Memphis Three, were arrested—then convicted of murder.

Stunningly, Jason Baldwin, 16 at the time and a model student, was sentenced to life without parole; Jessie Misskelley got life plus 40 years, while Damien Echols was sentenced to death. Damien has spent 17 years in solitary confinement awaiting death by lethal injection for a crime neither he nor Jessie nor Jason had anything to do with.

The West Memphis Three have been wrongfully convicted for crimes they did not commit. But, crucial new evidence of their innocence has been uncovered including crime scene DNA that absolves the three young men and points to others. Some of the country's leading pathologists found that much of the forensic evidence presented to the jury, which helped convict the young men, was false and not consistent with the cause of neither death nor wounds found on the bodies.

Honorable Governor MIKE BEEBE
State Capitol 250
Little Rock, Arkansas 72201 (USA)

Attorney General DUSTIN McDANIEL
323 Center Street, Suite 200
Little Rock, Arkansas 72201 (USA)

Template: Governor Mike Beebe OR Attorney General Dustin McDaniel, It has come to my attention that there are three men imprisoned in Arkansas for crimes they had nothing to do with. There is serious reasonable doubt surrounding the convictions of Damien Echols (on death row), Jason Baldwin and Jessie Misskelley Jr. I implore you to look into this matter today. Thank you for your time.

If you doubt their innocence, please look into this matter further www.freewestmemphis3.org But you cannot deny the reasonable doubt! Thank you in advance!

Let’s Free the 3!

Protecting the Innocent

The following editorial was published in the Sarasota, Florida Herald Tribune on April 7, 2010.

Protecting the innocent
Panel would be an important step in preventing wrongful convictions

Sending innocent people to prison and keeping them there are among the worst mistakes government can make. It has happened at least a dozen times in Florida, by one group's count.

Florida could learn from those mistakes -- and, possibly, prevent them in the future -- if the Legislature supports a state senator's push for an "innocence panel."

The senator, Mike Haridopolos, R-Merritt Island, added a budget amendment last week that would provide $200,000 for a commission to "examine why people have been sent to state prison for crimes they didn't commit," according to an article in Florida Today. The panel also would work "to prevent more innocent people from going to jail."

A group of attorneys suggested the panel idea to the Florida Supreme Court last year. Last month, the court expressed support for the suggestion but noted a lack of funding for implementation.

Haridopolos' measure aims to clear that hurdle, although $200,000 may not be enough, experts say. Still, it's an important step that deserves the Legislature's backing.

Florida prisoners exonerated

In Florida, 12 prisoners have been exonerated by post-conviction DNA testing since 2001, according to the Innocence Project. The group is a national network that specializes in using DNA evidence to clear people wrongly convicted of serious crimes.

Anthony Caravella, imprisoned for 26 years after being found guilty of a Broward County rape and murder, was Florida's 12th person to be freed by the process. The 1983 crime occurred before DNA testing was available. But last year, the evidence was put to the test. Final results, made public last week, confirmed that his DNA was not found on crime scene materials. The hunt for the real killer continues.

In another case, Alan Crotzer was released from state prison in 2006 after spending 24 years incarcerated for crimes he didn't commit. Crotzer was arrested in 1981 and charged with robbery, kidnapping and sexual battery in connection with crimes committed in Tampa. He was convicted and sentenced to 130 years. He was released after being vindicated by a series of DNA tests and other discoveries. A court vacated his conviction and sentence.

Two years ago, the Legislature appropriately provided Crotzer with $1.25 million to compensate for his wrongful imprisonment, which was the result of flawed testimony from witnesses and the use of questionable tactics by the prosecution.

Four key factors

The Innocence Project has found that at least one of four key factors often plays a role in wrongful convictions. Those factors are:

Eyewitness misidentification, the "leading cause" of wrongful conviction.

Use (and misuse) of scientifically unproven forensic techniques. Comparative bullet-lead analysis, for example, is considered questionable.

False confessions -- particularly when the defendant is a juvenile, has diminished mental capacity, or is under duress. (Caravella, just 15 when charged and with an IQ considered mildly mentally retarded, is one example.)

"Snitch" testimony, which can be highly unreliable.

Criminal justice procedures are needed that reduce the incidence of these errors prior to conviction -- and that provide opportunities for post-conviction relief.

The Innocence Project advocates legal reforms that include requirements to preserve DNA evidence in all cases of serious crime; recording interrogations in their entirety; double-blind police lineups and photo identification procedures; and policies that reduce obstacles to DNA testing late in the "justice cycle."

Compensation for the wrongly convicted and help as they re-enter society are also needed.

Florida already has instituted some of these reforms, but more are necessary.

An "innocence panel," exploring the "how" and "why" of wrongful convictions, would be a powerful, positive step.

Update on Hank Skinner's Case

Late in the day on Wednesday, March 24, 2010, the U.S. Supreme Court granted a stay of execution to allow time for DNA testing of relevant items related to the murders of Twila Busby and her sons.

Note well, especially those who live and VOTE in Texas, that Gov. Perry did not lift a finger to halt the planned execution, nor has he shown any interest whatsoever in the basic issue of guilt or innocence. Remember, you get the government you demand -- or the government you settle for.

Isn't a man's life worth an extra 30 days?

The following editorial was published in the Fort Worth, TX Star-Telegram on March 20, 1010.

Isn't a man's life worth an extra 30 days?

By BOB RAY SANDERS

bobray@star-telegram.com
Henry W. "Hank" Skinner, convicted of murder in 1994, may be guilty as sin.

Then again, he may be innocent.

But so what?

This is Texas, and Skinner is scheduled to be executed Wednesday evening even though simple testing might prove conclusively that he was not the killer of his live-in girlfriend and her two adult sons 16 years ago in the Panhandle town of Pampa.

Of course, the DNA testing could confirm his guilt, or perhaps be deemed inconclusive.

Either way, would it not make sense to do the testing if it helped us to be sure one way or the other? Why is the state so adamant about not doing it?

Do we permit Texas to make a possible deadly mistake without even trying to learn the whole truth?

It seems almost ironic that Gov. Rick Perry came to Fort Worth on Friday with a freshly issued pardon for a man who was wrongly convicted of raping a Texas Tech student in 1985.

Tim Cole, who was exonerated by DNA testing last year, was not there to receive his pardon -- his mother accepted for him. The test that proved his innocence came too late for Cole. He died in prison while serving a 25-year sentence for that wrongful conviction.

Cole's family fought hard and long to clear his name and has worked tirelessly for legislation that would help keep such miscarriages of justice from happening. A state advisory panel on wrongful convictions was named in his honor.

I was with Cole's family Friday afternoon as his mother, Ruby Session, along with Cole's sister and five brothers accepted the pardon.

After Perry's visit, Session took the governor's pardon to her son Tim -- at his grave.

Session has said no other family should have to go through such an ordeal, especially when DNA testing could have proved a defendant's innocence.

That brings us back to Skinner's case.

He maintains his innocence, but none of us knows for sure whether he bludgeoned Twila Busby to death and fatally stabbed her two sons on New Year's Eve, 1993. Skinner's attorneys argue he was convicted on "entirely circumstantial" evidence even while untested evidence remains sealed. Prosecutors and the courts have refused to permit a forensic examination for DNA as Skinner's execution date draws near.

Last week, the Texas Court of Criminal Appeals refused to intervene in the case, so hope lies with the U.S. Supreme Court and Perry.

Lawyers for Skinner officially asked the governor this month to grant a 30-day reprieve and order DNA testing on evidence that prosecutors say still exists.

In addition to the problematic trial evidence, the attorneys offer evidence to prove that Skinner was too incapacitated by alcohol and drugs to have committed the crimes even though he was in the house when they occurred.

Students of Northwestern University's Medill School of Journalism, who investigated the case in 1999 and 2000, helped uncover some of the disturbing revelations in the case.

The state's star witness, a woman whose home Skinner went to after he left the crime scene, recanted her testimony on tape. She has repeated, under oath, that she lied after authorities intimidated her.

Several witnesses believe, as was suggested during the trial, that the dead woman's uncle was the killer, and it has been suggested that a windbreaker found next to Busby's body belonged to him. Again, prosecutors never followed up on those allegations, attorneys say.

But the most crucial evidence -- seven items, in fact -- could be the most revealing if only tested for DNA: 1) vaginal swabs taken from Busby; 2) Busby's fingernail clippings; 3) a knife found on the front porch of Busby's home; 4) a knife found in a plastic bag in the living room; 5) a dishtowel also found in the bag; 6) the windbreaker; and 7) hairs found in Busby's hands.

Hair that was introduced at trial, by the way, was not Skinner's.

This overwhelming information could give new insight into the case, not to mention other things in the lawyers' petition to the governor.

Texas has waited this long; what's wrong with taking an extra 30 days if it could get to the truth?

"I'm not an advocate of Hank Skinner," law professor Robert C. Owen wrote in the appeal to the governor. "If DNA tests could remove the uncertainty about Skinner's guilt -- one way or the other -- there's not a good reason in the world not to do it."

I totally agree.

As a resident of this state, and with Tim Cole constantly on my mind, I don't want the death of another innocent man on my hands -- or my conscience.

Injustice: Taylor exoneration shows more probes needed.

The following editorial was published in the Fayette (NC) Observer on February 28, 2010.

When a three-judge panel in Raleigh reversed Greg Taylor's 1993 conviction for murdering a prostitute, it established two important conclusions:

The state's new Innocence Inquiry Commission, unique among the 50 states, is a success and an important new tool to ensure justice for all. It was Taylor's last chance, and his lawyers were able to prove to a panel of three Superior Court judges that he was innocent.

Perhaps more important than this one case is this:

The system of justice was more broken than we knew, and the commission may soon see a torrent of appeals from others in similar circumstances.

There's one particular circumstance that may be a big factor. Taylor's hearing revealed that in many cases, forensic evidence from the State Bureau of Investigation has been withheld from defense lawyers.

In Taylor's case, and apparently many others, lawyers never got the SBI's "bench notes." At Taylor's trial, those notes would have shown that initial lab reports, which showed blood inside his SUV following the slaying, were wrong. Follow-ups to the first test came up negative.

If that evidence had been presented in court, Taylor might never have had to waste more than 16 years of his life behind bars for a crime he didn't commit.

While SBI officials tried to defend the agency's former policies on evidence release, Director Robin Pendergraft said all evidence, including bench notes, is now provided to lawyers.

But what about cases investigated when the old policy was in effect? Are there other Greg Taylors unjustly serving time in our prison system? N.C. Center on Actual Innocence Executive Director Chris Mumma wants independent investigators to review every case that went through the SBI labs in that time period. If the SBI won't agree to that, we hope the center seeks a court order to make it happen.

We expect lawyers whose clients were convicted then also will be taking a second look at those cases. They should.

It is just as important that the cases of accused murderers who were convicted and executed during that time also be thoroughly probed. If innocent people were put to death, it would be the most tragic miscarriage of justice of all.

As Taylor said after his exoneration, "This is not about innocent people. This is about injustice."

It's clear from Taylor's case, and what was revealed during his hearing this month, that there has been injustice aplenty in North Carolina.

This case was a crime

The following editorial was published in the New York Daily News on February 26, 2010.

Five years after crying rape and sending a man to prison for a crime that never happened, Biurney Peguero has been slapped with a one- to three-year sentence for committing perjury.

She deserves that much - and more. Peguero should have been required to spend at least as much time behind bars as did William McCaffrey, the innocent man she locked away.

That Peguero eventually admitted fabricating her account of a brutal assault by McCaffrey and two other men does not mitigate her offense. Nor was hers garden-variety perjury of the kind that witnesses perpetrate to, say, dodge an indictment.

Peguero's sworn words stole the freedom of a blameless individual as surely as if she had kidnapped and held him hostage for 50 months. Her eligibility to apply for parole in a year pales in comparison.

She also played the criminal justice system - the police, the Manhattan district attorney's office, a judge and two juries - for fools. They bought a story that in the clear light of hindsight had grounds for doubt.

And, so, the Peguero case must serve as an object lesson for law enforcement authorities and judges as to the makings of a wrongful conviction. It should also reinforce for them the need for speedy reconsideration when there is substantial evidence that an injustice has been done.

Peguero's tale was horrifying. She said she met McCaffrey after a long night of drinking in upper Manhattan and wound up with him and his friends in a van. In graphic detail, she described being raped at knifepoint by McCaffrey and two others. She offered as evidence a bite mark.

So convincing was Peguero that Supreme Court Justice Richard Carruthers slammed McCaffrey with a 20-year sentence - more than the recommended maximum - saying, "she gave up caring what you and your accomplices were doing in sexually assaulting her; hoping only that you would not take her life."

But a medical exam had turned up no evidence that Peguero had been raped at all, let alone by McCaffrey, let alone by three men.

But she had also told a friend there had been only one rapist.

But the men returned Peguero to her friends rather than dumping her on the street.

But police couldn't bring cases against the other two supposed attackers.

But a witness said Peguero had gotten into an unrelated fight with her friends, the melee in which she suffered the bite mark.

The DA's office says it investigated to the fullest extent possible. Still, this was that most dangerous of prosecutorial entities: the single-witness case. And it went horribly wrong.

Later, in 2007, after advances in DNA technology, McCaffrey's lawyers asked for access to DNA left with the bite mark. The material should have been provided forthwith, in keeping with then-DA Robert Morgenthau's stated policy. But a year passed before a DNA test proved that McCaffrey had not bitten Peguero, as had been presented at his trial.

Then, after Peguero recanted her story in March 2009, it took yet another nine months before he was freed. When that day finally came, Carruthers apologized profusely and called the conviction a catastrophe for both McCaffrey and the criminal justice system..

The judge was right on both counts. Now, the goal must be never to stumble into another such disaster. New DA Cy Vance made a campaign issue of preventing wrongful convictions. He is moving to create a special unit for that purpose.

The horrible saga of McCaffrey's imprisonment must be part of the curriculum.

The Herald-Sun, on the NC Innocence Commission

The following editorial was published in the Durham, NC Herald-Sun on February 18, 2010.

Feb. 18

The Herald-Sun, Durham, N.C., on the Innocence Inquiry Commission:

Greg Taylor wasn't an innocent lamb. He was a crack addict who stopped to get high in the wrong place, and he testified that he found Jacquetta Thomas's broken body in a Raleigh cul-de-sac and didn't report it to police.

But he didn't kill her and he didn't deserve to serve 16 years in jail, and it's a huge victory for North Carolina that the Innocence Inquiry Commission freed him.

It wasn't easy. It took years and several humiliating exonerations in capital cases before the General Assembly took the plunge and became the first state to establish, fund and empower an innocence commission. By the time the legislation passed in 2006, Taylor had already served 13 years in jail.

The odds that his case would be selected were also slim. The commission wasn't designed to replace the justice system; instead, it acts as a backstop, hearing only felony cases in which there is credible, verifiable evidence that the defendant is innocent. Then it's up to the defendant to prove his innocence, a perfect inversion of our "innocent until proven guilty" system.

Greg Taylor and the others like him are only half of the equation. The other half are the defendants like Henry Reeves, who was convicted of indecent liberties with a child in 2001. Reeves was the first person whose case made it all the way through the Innocence Commission's investigations, hearings and judicial review. In the end, three judges determined that there was not enough evidence to establish Reeves' innocence.

In establishing the Innocence Inquiry Commission, the North Carolina General Assembly did three very risky things.

First, legislators accepted the overwhelming evidence that the justice system is imperfect and puts an unknown number of innocent people behind bars.

Second, they agreed that the appeals system offers insufficient relief for the wrongfully imprisoned, and established a backstop that could -- and now does -- get some of those people out of jail.

Third, by adding that opportunity, it opened the state to a new class of lawsuits from former inmates whose innocence has been established and vetted by a state-funded panel of judges.

The things we have taken from Greg Taylor can't be restored, but it seems inevitable that some court will end up pondering the question of how much we owe in exchange for 6,149 days of a man's life.

Whatever it is, we ought to pay it, and with good will.

Not just because we owe it to him -- and we do -- but because Greg Taylor is the emblem of North Carolina's restless devotion to justice for all.

Is it time we do something about prosecutorial abuse?

The following editorial was published in the Beaufort Observer on February 22, 2010.

"It's better for ten guilty men to go free than for one innocent man to go to jail."

Greg Taylor went free last week, after 17 years in prison for a crime he did not commit. And most will recall Alan Gell who, like Greg Taylor was sent to prison for a crime for which he was not guilty. Both were victims of bad prosecutions. And of course there is always Mike Nifong, of Duke lacrosse infamy.

And now we have yet another local case in Pitt County.

All of these cases involved prosecutorial abuse. And taken together they leave a lingering question: What should be done when law enforcement and judicial officials perform badly?

Prosecutors have traditionally been afforded immunity from prosecution even for misconduct in office, except in very rare cases. Those "rare cases" are in fact so rare they almost never happen. But it seems that in recent years the rarity of instances of prosecutorial abuse are becoming not so rare.

We believe Nifong was treated appropriately by "the system." He was removed from office and will never be able to serve as a prosecutor again. But what about the prosecutors of Alan Gell? They were given a slap on the wrist by the bar association, probably to pacify more than anything else and we have heard nothing about what will happen to the SBI agents and their superiors who knew about the exclusion of information in their lab work. That many of them are long gone, after 17 years, is not sufficient to not address the problem.

We think the time has come for the legislature to address the issue. We're not sure exactly what the action should be but to be sure there are those much smarter than we are that can divine the proper line between abuse of prosecutorial power and honest mistakes made by well meaning solicitors.

We believe punishment for willful prosecutorial abuse should be the same as that which the prosecutor seeks to impose on the victim. It certainly should be serious enough to deter abuse. And we would reserve a lesser, but still very severe penalty for malfeasance by a prosecutor. Ban them from the practice of law, just as we feel doctors guilty of malpractice should be banned from the practice of medicine.

Again, we don't claim to have all the answer to the bramble of issues involved, but we do think that the current state of affairs, no pun intended, is unacceptable and it is time for the legislature to tackle the problem. Prosecutors are not above the law they seek to impose of the rest of us.

DNA and justice

The following editorial was originally published in the Los Angeles Times on February 6, 2010.

Expanding DNA testing and preserving DNA evidence can help ensure that the guilty, and only the guilty, are punished.
February 6, 2010

Thirty-three years after he was convicted of raping a neighbor in Rochester, N.Y., Frederick Peacock became the 250th American to be exonerated by DNA evidence. Peacock, now 60, was paroled from prison decades ago, but he continued to insist that he had been wrongly convicted, and in 2002 the New York-based Innocence Project took up his case. This week, DNA testing that wasn't available either at the time of his conviction in 1976 or his parole in 1982 confirmed that he was not guilty of the rape for which he had served six years in prison.

But Peacock's case is more than just another example of a life damaged by wrongful conviction. The sheer length of time it took for him to clear his name highlights not only the need for broad access to DNA testing, but the importance of preserving evidence, even long after a case appears to be over.

"CSI" and other TV shows would have us believe that DNA is tested as a matter of course. The truth is that ahodgepodge of inadequate laws, varying by state, guarantee no such thing. One problem is access: Although 47 states permit convicted criminals to seek DNA testing in order to reopen their cases, the requirements vary widely. Alabama and Kentucky, for example, allow it only for convicts on death row. Other states bar it for convicts who have confessed. (That would have disqualified Peacock, who is severely mentally ill and confessed after a lengthy interrogation.) Other states set deadlines by which it must be requested, or bar testing for those convicted after testing became widespread in the 1990s. But in fact, certain types of testing became widely available only in the early 2000s and are still not routinely performed everywhere.

Thirty-two states and the District of Columbia have statutes requiring the preservation of evidence, but the details are often left to the discretion of law enforcement or individual judges. California requires that evidence be preserved for the duration of incarceration, and that should be the minimum standard for all states. The Peacock case also should inspire states to repeal the confession-linked ban. It underscores what numerous studies have shown: that confessions can be unreliable.

Preservation is desired not just by convicts and their defense attorneys. Some prosecutors advocate evidence preservation because the same DNA that exonerates one person can help convict the perpetrator as well, helping to solve cold cases.

Saving DNA evidence is not simply a matter of compassion for the wrongfully incarcerated. It should also be a top priority for those who want to see wrongdoers punished. Because for every Frederick Peacock who went to jail for a crime he did not commit, a perpetrator went free.

"The Wronged Man"

"THE WRONGED MAN' (World Television Premiere)
Airs Sunday, January 17th at 8:00 PM ET/ 5:00 PM PT on Lifetime Movie Network


Janet Gregory (Ormond), a single mother with a haunting past, is a paralegal struggling to overcome doubts about Calvin Willis (Ali), an African-American husband and father wrongfully accused of raping a neighborhood girl. Eventually convinced of his innocence, Janet takes Calvin’s pro bono case and wages a dramatic and stormy 22-year battle with the justice system that ultimately redeems an unjustly accused man and cements a life-long friendship.

Watch a Preview on YouTube.

Liberty Has Been Lost by Paul Craig Roberts

The following opinion was originally published by OpEd News on January 5, 2010.

Liberty Has Been Lost

By Paul Craig Roberts

I had just finished reading the uncensored edition of Aleksandr Solzhenitsyn's book, In The First Circle (Harper Perennial, 2009), when I came across Chris Hedges' article, "One Day We'll All Be Terrorists" (Truthdig, Dec. 28, 2009). In Hedges' description of the US government's treatment of American citizen Syed Fahad Hashmi, I recognized the Stalinist legal system as portrayed by Solzhenitsyn.

Hashmi has been held in solitary confinement going on three years. Guantanamo's practices have migrated to the Metropolitan Correction Center in Manhattan where Hashmi is held in the Special Housing Unit. His access to attorneys, family, and other prisoners is prevented or severely curtailed. He must clean himself and use toilet facilities on camera. He is let out of solitary for one hour every 24 hours to exercise in a cage.

Hashmi is a US citizen but his government has violated every right guaranteed to him by the Constitution. The US government, in violation of US law, is also subjecting Hashmi to psychological torture known as extreme sensory deprivation. The bogus "evidence" against him is classified and denied to him. Like Joseph K. in Kafka's The Trial, Hashmi is under arrest on secret evidence. As the case against him is unknown or non-existent, defense is impossible.

Hashmi's rights have been abrogated by his government with the allegation that he is a potential terrorist or perhaps just a terrorist sympathizer. Another American citizen, Junaid Babar stayed with Hashmi for two weeks and allegedly delivered ponchos and socks to al Qaeda in Pakistan. Allegedly Babar used Hashmi's cell phone to reach others aiding terrorists. The US government says that this suffices to implicate Hashmi in Babar's activities.

Babar made a plea bargain to five counts of "material support" for terrorism, but is working off his prison sentence by testifying as a government witness in other terror trials, including in Canada and the UK, and as the US government's only evidence against Hashmi.

Hashmi's real offense is that he is a Muslim activist defending Muslim civil liberties and making provocative statements about the US. As Michael Ratner, president of the Center for Constitutional Rights, has pointed out, federal courts have given the US government wide latitude to use Hashmi's exercise of his constitutionally protected rights to free speech and association as evidence of a terrorist frame of mind and, thereby, of intent to commit terrorism.

Brooklyn College professor Jeanne Theoharis warns us that an American citizen can now be tried on secret evidence. "You can spend years in solitary confinement before you are convicted of anything. There has been attention paid to extraordinary rendition, Guantanamo and Abu Ghraib with this false idea that if people are tried in the United States things will be fair. But what allowed Guantanamo to happen was the devolution of the rule of law here at home, and this is not only happening to Hashmi."

Indeed, Hedges reports that "radical activists in the environmental, [anti]-globalization, anti-nuclear, sustainable agriculture and anarchist movements are already being placed by the state in special detention facilities with Muslims charged with terrorism." Hedges warns: "This corruption of our legal system will not be reserved by the state for suspected terrorists or even Muslim Americans. In the coming turmoil and economic collapse, it will be used to silence all who are branded as disruptive or subversive. Hashmi endures what many others, who are not Muslim, will endure later."

The silence of bar associations and law schools indicates an astounding insouciance to Thomas Paine's warning: "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." Some of my Republican and conservative acquaintances are even gleeful that, finally, we are going to get tough and deal forcibly with "these people." They naively believe that they themselves will remain safe when law ceases to be a shield of the people and becomes a weapon in the hands of government.

In "A Man For All Seasons," Sir Thomas More cautions against cutting the law down in order to chase after devils, for with the law cut down, where do we stand when the devil turns on us?

Clearly, these fundamental questions are of no concern to the US Department of Justice (sic), to Congress or the White House, to the "mainstream media," to the American people, or even to very much of the federal judiciary.

Glenn Greenwald pointed out in Salon (Dec. 4, 2009) that the Convention Against Torture, championed and signed by President Ronald Reagan and ratified by the US Senate, states: "Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution. No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency may be invoked as a justification of torture. Each State Party shall ensure that all acts of torture are offenses under its criminal law."

Two decades later the US government tortures at will. Justice (sic) Department officials write memos authorizing torture despite the ratified Convention Against Torture, US law, and the Geneva Conventions. The Pew Poll reports that 67 percent of Republicans and 47 percent of Democrats support the use of torture.

And Americans think they have freedom and democracy and live under the protection of the rule of law.

The law is lost, and with it American liberty.

___________________________________________________
Paul Craig Roberts, a former Assistant Secretary of the US Treasury and former associate editor of the Wall Street Journal, has held numerous academic appointments. He has been reporting shocking cases of prosecutorial abuse for two decades. A new edition of his book, The Tyranny of Good Intentions, co-authored with Lawrence Stratton, a documented account of how Americans lost the protection of law, was published by Random House in March, 2008.

Philadelphia Inquirer: Death Row Diminished

The following editorial was published in the Philadelphia Inquirer on January 4, 2010.

Editorial: Death row diminished

States are sentencing fewer defendants to death, a likely result of a system that is increasingly costly and unreliable.

Nationwide last year, the fewest death sentences were handed out - 106 - since the death penalty was reinstated in 1976. It is the seventh straight year of decline. Ten years ago, 284 defendants were sentenced to death.

Since the use of DNA evidence has become more prevalent, it is growing clearer with each passing year that the death penalty is unreliable. Since 1973, 139 people have been freed from death row, primarily due to to irrefutable scientific evidence of their innocence. Ninety-one of those condemned prisoners have been released since 1993.

Nine men were freed from death row last year alone, after spending a combined 121 years behind bars for crimes they did not commit.

A system that sentences 139 innocent people to death cannot be counted on to deliver justice fairly. Those 139 defendants avoided execution, but there's convincing evidence that at least one person, Cameron Todd Willingham of Texas, was put to death in 2004 for arson deaths that turned out not to be a case of arson at all. Undoubtedly there have been more like him.

Eleven states last year considered abolishing the death penalty; New Mexico was the only one of those states to outlaw capital punishment. New Jersey abolished it in 2007, after spending more than $200 million on a system that executed no prisoners.

Thirty-five states, including Pennsylvania and Delaware, still have the death penalty. But of those 35, only 11 carried out executions in 2009. Nearly half of them occurred in Texas.

The number of executions rose in 2009 to 52, from 37 the previous year. But that was largely due to an unofficial moratorium for several months in 2008 while the Supreme Court considered the constitutionality of lethal injections. The number of executions last year was 47 percent lower than 10 years ago.

Pennsylvania has executed three men since 1976, none since Gary Heidnick in 1999. Twice as many people, six, have been freed from death row during that time because they were innocent. Since 1983, 21 death-row inmates in the state died of natural causes or suicide.

Yet the state has the fourth-largest death row in the nation, with 225 inmates as of July 1. And the cost of maintaining the capital-punishment system is enormous. A study in Maryland in 2008 estimated that the average cost to taxpayers of each case in which a death sentence was imposed was $3 million.

The death penalty is costly and unreliable, but it is not a deterrent. Texas, which leads the nation in executions, had a murder rate in 2008 of 5.6 per 100,000 population - the same rate as Pennsylvania. New Jersey and New York, which no longer have the death penalty, have murder rates of 4.3 per 100,000. Massachusetts, also without capital punishment, has a murder rate of 2.6 per 100,000.

Of the states that don't have capital punishment, only Michigan had a murder rate higher than 5.0.

The death penalty is too costly, it jeopardizes innocent people, and it doesn't deter crime. Increasingly, judges and juries are coming to the same sensible conclusion.

Washington Post: Innocents in prison

The following editorial was published by the Washington Post on December 27, 2009.

THREE DAYS after Donald E. Gates was released from prison after serving 28 years for a murder he didn't commit, federal prosecutors acknowledged that they received, but failed to act on, information discrediting testimony key to his conviction. In the same week, a Florida man imprisoned for 35 years for kidnapping and rape was freed after DNA tests proved his innocence. As appalling as the two cases are, what's even scarier is the thought that imperfections in the criminal justice system will go uncorrected and more people could be wrongly jailed.

The wrongful conviction of Mr. Gates in the 1981 rape and murder of a D.C. woman and that of James Bain in the 1974 assault of a 9-year-old boy could serve as primers for what's wrong with the system. In Mr. Bain's case, it was reliance on identification from an unreliable eyewitness: a traumatized 9-year-old. Witness misidentification is the single greatest cause of wrongful convictions, contributing to more than 75 percent of convictions overturned through DNA testing nationwide, the Innocence Project reported.

The second biggest cause is faulty forensics, and that played a starring role in Mr. Gates's conviction. A FBI special agent testified that two pubic hairs found on the victim's body were microscopically identical to those of Mr. Gates. Even if, as later examination showed, the agent hadn't basically been making up his findings, the science behind the technology is suspect. Indeed, a report this year from the National Research Council found such serious deficiencies in the nation's forensic science system that it called for major reforms and new research.

It's also clear from Mr. Gates's case that improvements are needed in how the government discloses information. Even after a 1997 inspector general's report questioned the credibility of FBI agent Michael P. Malone, prosecutors were still, as late as this year, touting his findings. Only after the D.C. public defender's office did its own digging were the problems with Mr. Malone's performance, and the government's failure to disclose them, brought to light.

In a letter to the court admitting that they had received information almost six years ago that called Mr. Gates's conviction into doubt, prosecutors at the U.S. Attorney's Office said that they have referred the matter to the Justice Department's Office of Professional Responsibility. They also should follow the lead of states such as North Carolina in establishing innocence commissions that bring together judges, police, prosecutors, defense attorneys and victim's advocates in an attempt to identify the practices that lead to wrongful convictions and to recommend reforms.

When justice system crashes

The following editorial was published in the Palm Beach (Florida) Post on December 23, 2009.

When justice system crashes

James Bain is enjoying his first Christmas as a free man since 1973, even though for all those years he was an innocent man. Florida must create a commission to investigate such catastrophic failures of the criminal justice system.

In 1974, Mr. Bain was arrested for the kidnap and rape of a 9-year-old boy. Polk County prosecutors got a conviction, despite relying only on what was a very shaky eyewitness identification. Attorneys for The Innocence Project of Florida pressed for DNA testing, which prosecutors rejected several times before agreeing. Results confirmed Mr. Bain's innocence, and he went home last week.

The state owes Mr. Bain $1.75 million, based on $50,000 for each stolen year. The Florida Supreme Court owes it to the state justice system to create an Innocence Commission.

Mr. Bain became just the latest example of system failure. In 2004, it was Wilton Dedge (22 years). In 2005, it was Luis Diaz (26 years). In 2008, it was Alan Crotzer (24 years) and William Dillon (28 years). Then there are the 23 exonerations from Florida's Death Row.

As Innocence Project co-founder Barry Scheck has noted, these cases are to the justice system what a crash is to the airline industry: a tragedy, but also a chance to learn. When a ValuJet plane crashed in the Everglades 13 years ago, for example, we learned the dangers of outsourcing maintenance. Miscommunication led to the storing of full oxygen canisters in the hold. They ignited.

One week before Mr. Bain's release, Talbot "Sandy" D'Alemberte petitioned the Florida Supreme Court to create a Florida Actual Innocence Commission. According to the petition, the commission would "investigate the circumstances of cases where actual innocence of a crime has been demonstrated and to develop recommendations for reforms to reduce wrongful convictions." Mr. D'Alemberte is a former president of the American Bar Association and Florida State University, where he also was law school dean. Joining the petition at this point are roughly 70 lawyers, among them prosecutors and former Florida Supreme Court justices. Fifty are required for the court to consider a petition.

The petition suggests that the court establish a commission modeled after the one in North Carolina. The court has no timetable to decide, but Mark Schlackman, who works with Mr. D'Alemberte at the Florida State University Center for the Advancement of Human Rights, said, "We are very optimistic."

Other studies, one by the ABA in 2006, identified flaws with the state's criminal justice system. When that system gets it so wrong, so badly, so often, the search for justice demands that the system understand why.

Where’s the Justice for Wrongly Imprisoned Man?

The following editorial was published by the Jacksonville (FL) Observer on December 18, 2009.

Where’s the justice in this?

Donald Eugene Gates spent 28 years in prison for a crime he didn’t commit. Convicted in 1981 of the brutal rape and murder of Catherine Schilling, a 21-year-old Georgetown University student, Gates got 20 years to life and was sent to federal prison in Arizona.

Gates was released a few days ago after DNA testing proved he didn’t commit that crime. To help him restart his life, the government gave Gates some winter clothes, $75 and a bus ticket to his hometown, Akron, Ohio. The cab ride from the Tucson prison to the Greyhound bus station cost him $35.

Gates was forced to spend nearly half his 58 years behind bars after an FBI crime lab analyst linked two pubic hairs found at the crime scene to Gates. The reliability of that analyst, Michael Malone, was called into question in several subsequent cases.

A 1997 FBI inspector general’s report concluded Malone and other analysts in the bureau’s Washington crime lab had submitted false reports and performed inaccurate tests in criminal cases. In 2003, a forensic scientist found problems with Malone’s work in the Gates case, but prosecutors never gave that information to Gates’ lawyer.

Gates languished in prison for six more years until the District of Columbia’s Public Defenders Service persuaded the judge who had sentenced him to order a DNA test on the pubic hairs. An earlier test, using a less reliable method, had proved inconclusive. The new test exonerated Gates.

Now, with whatever’s left of his $75 from the federal government, Gates is expected to get on with his life.

When he went to prison in 1981, Ronald Reagan was in the first year of his presidency. “Dallas” was the top-rated television show. The Oakland Raiders had won the Super Bowl, and 5-year-old Tiger Woods appeared on the TV show “That’s Incredible.” Motorola didn’t introduce the first commercial cell phone until two years later.

The world Gates has just entered bears little resemblance to the one he left behind after his wrongful conviction. The nature of work – and the skills needed to land a job – have changed dramatically over the past quarter-century. There’s little chance Gates will find a job that will make him self-sufficient without some special training.

And there’s little hope he won’t fall back into the clutches of the criminal justice system if something isn’t done to compensate him for his lost years.

Such an act of contrition shouldn’t be slow in coming.

The District of Columbia allows people who were wrongfully convicted to seek compensation, but why make Gates go through the motions? Why make him get a lawyer and litigate this in court? Why force him to sue for the help he needs to recover from the injustice he’s suffered?

In ordering Gates’ release, D.C. Superior Court Judge Fred Ugast said, “We are fortunate … that the technology has been developed that permits us to at least try to right a wrong.” But while setting Gates free may soothe the judge’s conscience, much more needs to be done to free him from the ravages of his wrongful conviction.

Guest Shot: Eric Schneiderman: NY Bill would let wrongly convicted prove innocence

The following opinion was originally published in the Buffalo News on December 19, 2009.

Another Voice / Criminal justice
Eric Schneiderman: Bill would let wrongly convicted prove innocence
By Eric Schneiderman
December 19, 2009

Three weeks ago, Fernando Bermudez became a free man after serving 18 years in prison for a murder he did not commit. This will be his first Christmas at home since 1991.

A Manhattan judge threw out his conviction after a cooperating witness lied in court, and witnesses were improperly allowed to discuss a mug shot of Bermudez before identifying him as the shooter. Each one has since recanted.

In a powerfully worded decision, Judge John Cataldo found “clear and convincing evidence” that Bermudez demonstrated his “actual innocence.”

This decision represents a major turning point in the actual innocence movement — an effort to make courts weigh convincing evidence of innocence without procedural roadblocks in cases like this. Here in New York, as in most other states, too many technical obstacles are preventing innocent people like Bermudez from getting the justice they deserve. And when an innocent man is sent to prison, the real criminal remains free to terrorize new victims.

To fix this problem, I have introduced a bill in the State Legislature to establish “actual innocence” as a lawful basis for vacating a prior conviction, giving the wrongfully convicted an opportunity to directly prove their innocence.

Innocent people locked up in prison deserve a hearing when they can produce evidence conclusively proving they are not guilty.

This bill prevents the rejection of innocence claims on technicalities. Had this law been in place in the 1990s, it’s possible that Bermudez could have been a free man years ago.

Indeed, his first application to have the court re-examine evidence establishing his innocence — 14 years ago — and nine subsequent applicants were all denied.

Despite the recantation of five witnesses who had previously identified Bermudez as the killer, and the advocacy of many public officials including Assemblyman Adriano Espaillat, Bermudez’s 10 previous attempts to establish his innocence were denied based on a series of technicalities.

This legislation is particularly important in cases like this one, where there is no DNA evidence. In the last five years, approximately 64 percent of all the exonerations in the United States were based on non-DNA evidence.

Experts observe that the percentage of exonerations based on non-DNA evidence in New York State is only increasing.

The Bermudez case is a wake-up call. It is completely inconsistent with American values of justice and fairness to imprison innocent people without giving them a chance to reverse wrongful convictions where convincing evidence exists.

We have the momentum — it’s time to reform our criminal justice system and ensure that no one does time for a crime he didn’t commit.

Eric Schneiderman, D-New York City, representsthe 31st State Senate District.

David Protess: Reaction to State's Filing

The following was sent out over a Northwestern University listserve. David Protess is responding the the Cook County DA's subpoena for grades and similar records of his journalism students who investigated Anthony McKinney's innocence claims.

Reaction to the state's filing
David Protess
November 16, 2009

On October 10, the State’s Attorney’s Office (SAO) filed a 54-page document alleging my students paid witnesses in their investigation of the Anthony McKinney case. Breathless accounts by journalists rapidly appeared in print, broadcast and on-line publications across the country. Unfortunately, reporters focused almost entirely on the prosecutors’ allegations in the first part of the document and ignored the actual interviews with the witnesses, which were recounted as exhibits at the end of the court filing.

Here’s what we know from those exhibits — the SAO’s own investigative reports:

1. Two alleged witnesses — and no others — claimed my students and our private detective paid them money. One is convicted killer and armed robber Tony Drake, who, after murdering a disabled man in 1985, has been re-incarcerated twice for aggravated domestic battery. The other is a Wisconsin drug dealer, Michael Lane.

2. Tony Drake was interviewed, in prison, by two prosecutors and a state's attorney's investigator, and questioned about the videotaped interview with my students in which he confessed to being present for the murder of Donald Lundahl. It is not surprising that, under the circumstances, Drake recanted.

3. Even though he stated on the videotape that he had not received any compensation for talking with my students, Drake told the trio from the SAO that he'd been paid $100. Yet, the state's evidence of the alleged payment was a $60 cab fare given to the driver, for which we have a receipt. When prosecutors asked Drake about being paid for the interview, here's how he responded, according to their own report: ". . . the students told him they could not give him money for an interview." (emphasis added.)

4. Anthony McKinney's lawyers have filed seven affidavits from our sources indicating that Drake confessed the Lundahl murder to them. There is no reference to this corroborative evidence in the SAO report.

5. The second witness, Michael Lane, told a state's attorney's investigator that my students had paid him "a couple hundred dollars." The investigator was openly dubious of this claim. According to his report, he said that "it seemed unlikely the students gave him a couple hundred dollars."

6. Lane described the investigator who accompanied the students as "a male black with a ponytail maybe in his late forties." Sergio Serritella, the only investigator I have worked with since 2000, is a male white with short wavy hair and (at the time) was in his mid-twenties. Since the SAO investigator knows Serritella, he must have wondered who Lane was talking about.


7. The SAO investigator gave Lane $10 "as a travel expense," according to his report. The reason: "[Lane] was driving a Denali and it was costly to operate."

8. The SAO interview with Lane took place on June 22, 2009 — one month after the state issued a subpoena for grades because prosecutors purportedly had hard evidence that questioned Medill students’ "motivation." But the sole pre-subpoena evidence regarding motivation was their interview with Tony Drake.

9. The only other source to raise the issue of money was Robert McGruder, who was named by Tony Drake as an alternative suspect in the crime. In response to questioning by a SAO investigator, McGruder did not claim that Medill students paid him at any point for their two interviews. However, McGruder did report that the lead detectives in the McKinney case paid him “30.00 to 40.00 dollars.” When asked to explain, McGruder said it was their way of apologizing “for hitting him in the police station.”

In sum, except for Tony Drake’s claims, no witness offered any evidence that my student-journalists paid for interviews, while two witnesses said they were paid by law enforcement. And, in the case of Tony Drake, SAO investigators acknowledged Drake was specifically told by the students that “they could not give him money for an interview.”

Why would law enforcement officers believe a convicted killer's account over my student-journalists — unless their motivation was to discredit the students and to direct attention away from the powerful evidence of Anthony McKinney's innocence?

Moreover, in view of the filing, it seems the state has undermined its own legal position on the subpoena by acknowledging they have live witnesses who are available to impeach the evidence we tendered to them. So why do they need our notes and grades? Let their witnesses take the stand, and let the truth be known.

David Protess
Northwestern University
d-protess@northwestern.edu

Editorial: Prosecutor misconduct has a high public cost

The following op-ed was published by the San Jose, CA Mercury-News on November 11, 2009.

Prosecutor misconduct has a high public cost

By Kathleen 'Cookie' Ridolfi and Maurice Possley

Special to the Mercury News
Posted: 11/11/2009 08:00:00 PM PST

For the fourth time in as many years, Santa Clara County residents must cough up hundreds of thousands of their tax dollars due to allegations of prosecutorial misconduct.

Last month, the county authorized paying $750,000 to settle a lawsuit brought by Donna Auguste, whose Colorado home was illegally searched by police six years ago. As the citizens of Santa Clara County feel the sting of the $750,000 settlement, they should realize that this is not an isolated instance. It raises the cost to taxpayers due to prosecutorial misconduct accusations since 2005 to more than $5 million.

Earlier this year, the county forked over $1 million to settle a lawsuit alleging, in part, prosecutorial misconduct brought by Jeffrey Rodriguez, who was wrongfully convicted and released after five years in prison.

Two years ago, the county settled a similar suit brought by Rick Walker, who served 12 years in prison for a murder he did not commit. Santa Clara County paid $1.3 million in taxpayer dollars on top of $1.45 million paid by the county's insurance carrier. The state of California paid an additional $409,500 to compensate him for the 12 years he lost.

In 2005, the county paid nearly $1 million to Glen Nickerson, who spent nearly 19 years behind bars before his murder conviction was overturned following evidence of police and prosecutorial misconduct.

Remarkably, not a single prosecutor faced discipline in these prosecutions, with the exception of Santa Clara County prosecutor Ben Field. Field, who orchestrated the illegal search in the Auguste case and whose multiple prosecutorial misdeeds have been exposed by the Mercury News, has been ordered to surrender his law license for four years.

But the cost of prosecutorial misconduct goes far beyond the dollars removed from taxpayer wallets.

Donna Auguste, for example, spent $900,000 to free her nephew. There is the cost of the hundreds of hours racked up by attorneys in the office of Santa Clara County Counsel who defended the lawsuit. This is time that could have been spent on other matters of importance to the citizenry.

And what price do you put on the more than 40 years that Walker, Nickerson, Rodriguez and Damon Auguste spent behind bars before they were exonerated? The cost of housing them alone is more than $1 million. The personal cost to these men cannot be quantified. Those years are gone.

Perhaps most significant is the immeasurable cost and risk to society of having the real perpetrators still out there.

Prosecutors rarely suffer personal consequences for engaging in misconduct. They have absolute immunity for their official conduct as advocates, and when acting as investigators, they can be held liable for their misconduct only if it violates the law.

A recent study by the California Commission on the Fair Administration of Justice examined California appellate court rulings and found that during the ten year period ending in 2007, prosecutors committed misconduct in 444 cases, yet only two were disciplined. Thirty of them committed misconduct more than once. Two of them did it three times. Virtually all of these prosecutors walked away unscathed.

In these difficult economic times, taxpayers might well wonder if they can continue to spend this kind of money to support a criminal justice system that allows prosecutors to avoid personal responsibility, innocent defendants to be locked up, and true criminals to go free. But this is not a decision that should be based solely on dollars, no matter what the economy is doing.

Too much is at stake.

KATHLEEN RIDOLFI is executive director of the Northern California Innocence Project at Santa Clara University School of Law. MAURICE POSSLEY, a Pulitzer Prize winning former investigative reporter for the Chicago Tribune, is an investigator and researcher with the project. They wrote this article for the Mercury News.

Editorial: The right not to be framed

The following editorial was published by the Washington Post on November 2, 2009.

The right not to be framed
Can prosecutors be sued?

Monday, November 2, 2009

"THERE IS NO Freestanding Constitutional 'Right Not To Be Framed.' " So states a brief filed by Iowa prosecutors hoping to persuade the Supreme Court to dismiss a lawsuit against them for allegedly fabricating evidence that led to the 25-year incarceration of two innocent men. It's a breathtaking proposition that the justices should roundly reject when they hear the case Wednesday.

According to court documents, the prosecutors took a leading role in 1977 in investigating the murder of a recently retired white police officer at an Iowa automobile dealership where he was working security. The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight. Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit.

These contradictions and prosecutors' apparent hand in the alleged fabrications came to light years after the men were sentenced to life without parole when a prison barber made a public records request of police files in the case and came across exculpatory information that had been kept from defense lawyers. The witness ultimately recanted his story. Mr. Harrington's conviction was overturned by the Iowa Supreme Court, which concluded that the star witness was a "liar and perjurer," and Mr. Harrington was freed. Mr. McGhee petitioned for a new trial but ultimately entered a conditional guilty plea that allowed him to go free with time served.

Mr. McGhee and Mr. Harrington, who say that they were targeted because of their race, later sued the two prosecutors and the Iowa county that employed them, using a Reconstruction-era law that gives individuals the right to seek damages from government officials who knowingly deprive them of their constitutional rights. The prosecutors argue that they should be immune from such lawsuits and point to a line of Supreme Court cases that shield prosecutors from legal consequences when they carry out their duties. They argue that state and bar disciplinary structures are best able to deal with accusations of prosecutorial misconduct and that prosecutors will be chilled in doing their jobs if they worry about being sued for innocent missteps.

Prosecutors need to be able carry out their duties without fear that they'll become the targets of personal lawsuits if defendants are found not guilty or charges are dropped. But such lawsuits face high hurdles. The Supreme Court has recently -- and correctly -- made it even more difficult for plaintiffs to make officials personally liable unless there's convincing evidence that they were directly involved in knowingly violating a clearly established constitutional right. Mr. McGhee and Mr. Harrington have shouldered that burden and should be allowed to proceed with their case.

The vast majority of prosecutors perform honorably and understand that they are duty-bound not just to secure convictions but to seek justice. Those who don't often suffer no consequences at the hands of state or bar organizations, as a brief in support of Mr. McGhee and Mr. Harrington convincingly argues. For these few renegades, perhaps the prospect of being held liable will help to keep them in line or, at least, hold them accountable.