She's Innocent. We're Guilty.

The following op-ed by Julia Baird was published by the New York Times on June 15, 2012.

Sydney, Australia

ULURU, the large red rock in the Australian outback, is a sacred site for aboriginal people. Photographs do not convey how dramatically it looms: an enormous crimson heart in the middle of thousands of miles of flat, muted desert.

It was here, on Aug. 17, 1980, that a dingo — an Australian wild dog — dragged a baby called Azaria Chamberlain from a tent as her parents sat by the campfire. Her body was never found.

Azaria’s desperate mother, Lindy, was accused of lying, convicted of murder and sent to prison. The film about her, “A Cry in the Dark,” starring Meryl Streep, spawned a thousand jokes: “A dingo’s got my baby!” It was not until this week that Lindy and her ex-husband, Michael, were finally given the vindication they longed for: a death certificate that stated that the cause of Azaria’s death was a dingo attack.

Why did it take three decades, tens of millions of dollars, a criminal case appealed in Australia’s highest court, a royal commission and four inquests to establish Lindy Chamberlain’s innocence? In that time, Australia’s population grew from 14.5 million to almost 23 million. The case has been a spectacular example of poor forensic science, anxiety about “evil mothers” and suspicion of religiosity — the Chamberlains are members of the Seventh-day Adventist Church, which was wrongly portrayed as an infant-slaying cult. Rumors circulated that Azaria meant “sacrifice in the wilderness” in Hebrew, not “blessed of God.”

Most Australians thought the dingo was a flimsy excuse. Few people, except park rangers, believed a dingo would attack a baby, and the evidence indigenous trackers gave about drag marks near the tent was brushed aside. In a 1984 poll, 76.8 percent of Australians said Lindy Chamberlain was guilty, and the investigation did little to change their minds.

Then there was Lindy Chamberlain herself. She was thought too “sexy” and “cold”; she walked into court with a face set like concrete under large black sunglasses and severely cut black hair. Much was made of her bare, tanned shoulders, her expansive wardrobe and her stoicism. When she did not weep on cue, no one suggested she might have been suffering from shock or trauma. Even worse, she was accused of playing to the cameras that were constantly thrust in her face. She was, we were told, more interested in looking pretty than in the death of her child.

This was a woman, as the prosecution put it, who could murder a baby with nail scissors in the front seat of her car before stuffing the body into a camera case. When a forensic expert claimed there were bloodstains in the front of the Chamberlain’s car, those harboring suspicions were triumphant. Guilty! People spat on her as she walked into the courtroom. It took years before it emerged that the marks were from a chemical spray and old milk.

When “A Cry in the Dark” was released in 1988, it presented a significant challenge to public opinion, coming as it did on the heels of a commission that established serious bungling of evidence by the police and judiciary and overturned the conviction for which Lindy Chamberlain served three years. The movie offered a sympathetic portrayal of a woman struck by an inexplicable tragedy and then accused of an inexplicable crime. By then, she had already given birth in prison to her fourth child, who lived with foster parents until her mother was released. Many people wrote her apologetic letters after seeing the film.

When the coroner tearfully declared the Chamberlains innocent this week and gave them Azaria’s correct death certificate, there was a surprising display of grief and shame in Australia. Comedians issued public apologies for using Lindy Chamberlain as a punch line; TV hosts were grave and emotional. Azaria would have turned 32 on June 11; her parents’ faces crumpled when reminded of it.

The Australian historian Michelle Arrow, who has co-edited a book about the case, believes it was such an engrossing spectacle that we still bear a “psychic scar” from it. Part of the witch hunt, certainly, was about the way white Europeans viewed aboriginal land; as a remote place where sinister things would happen, a place of dark magic where a young mother would slit her baby’s throat as a sacrifice to God.

We see now that our willingness to believe that was a collective failure of empathy. We assumed an innocent woman was guilty. We threw rocks at a grieving mother. And a nation founded by convicts somehow forgot the presumption of innocence.

Lindy Chamberlain is writing a book on forgiveness now. She has learned how to absolve those who mocked, vilified and condemned her. We should take longer to forgive ourselves.

Julia Baird, a journalist, is the author of “Media Tarts: How the Australian Press Frames Female Politicians.”

DA's defeat may offer a good lesson

The following opinion by Bob Ray Sanders was published by Arlington (Texas) Star-Telegram on June 6, 2012.

Although justice can move very slowly, it eventually tends to discover the truth and mete out the appropriate punishment or reward.

Sometimes, it even catches up with those charged with administering it, like the haughty district attorney of Williamson County near Austin.

John Bradley, first appointed Williamson County DA by Gov. Rick Perry in 2001 and subsequently elected to the position, was soundly defeated in his bid for re-election in the May 29 Republican primary. The victor in that race was County Attorney Jana Duty, who used the wrongful conviction of an innocent man to persuade voters that Bradley was unworthy of the office.

Bradley was not district attorney when Michael Morton was convicted in the 1986 murder of his wife and sentenced to life in prison without parole. But Bradley was there when Morton and his attorneys began asking for DNA testing that could prove his innocence. For six years, those requests were denied, with Bradley saying that evidence was irrelevant.

Last December, Morton was officially exonerated after a judge ordered the testing that linked the murder to another man, Mark Norwood, who was charged with the crime in February.

Morton was freed after serving 25 years in prison.

But his case isn't completely over. Morton's lawyers have alleged that the prosecutor in the case, Ken Anderson -- now a state district judge -- had failed to turn over several pieces of evidence that would have been beneficial to Morton's defense.

Earlier this year, a Bexar County judge recommended a court of inquiry after finding probable cause that Anderson had broken the law. Texas Supreme Court Chief Justice Wallace Jefferson selected state District Judge Louis Sturns of Tarrant County to lead the court of inquiry investigation into whether prosecutorial misconduct occurred.

Bradley isn't the target of the misconduct allegation, but his role in resisting Morton's pleas for testing worked against him, just as his hard-line stance in a separate murder case may have.

When the Texas Forensic Science Commission was investigating the case of Cameron Todd Willingham, who was convicted of setting a fire that killed his three young daughters, some arson investigation specialists said bad science had been used to conclude that the blaze was deliberately set. If it was not arson, then it was not murder. Willingham's advocates argue that he was wrongly convicted, but he was executed in 2004.

Shortly before a key commission hearing on the case, the governor replaced four members; their terms had expired, but the timing looked suspicious. Perry appointed Bradley commission chairman, and the new head quickly became an obstructionist to the Willingham investigation.

Bradley called Willingham a "guilty monster," backing up Perry's assertion that he was guilty because a jury had said so. And it appeared that Bradley did not want the investigation to proceed on any level that might show Texas had executed an innocent man.

He favored adoption of a report that said fire investigators in the case had done no wrong. But other commission members resisted that conclusion. The panel's work on the Willingham case was limited by a convoluted 2011 ruling from Texas Attorney General Greg Abbott, who said the commission could not investigate cases that occurred before the Legislature established it in 2005. Abbott said the members could consider whether there was professional misconduct in the investigation, but they could not examine specific evidence used to prosecute Willingham.

Not long before that, the Republican-controlled state Senate had refused to vote on Bradley's reappointment as chairman. He was replaced by Tarrant County Medical Examiner Nizam Peerwani.

The Innocence Project was the major advocate in both the Morton and Willingham cases.

With the organization's help, more than 40 convicted individuals in Texas have been exonerated through DNA testing in the past few years, which makes Bradley's obstinate behavior even more reprehensible.

Perhaps now he's learned a valuable lesson, one I hope is taught to a few more district attorneys around the state.

More on the implications of the national registry of wrongful convictions

The following editorial was published by the Virginian-Pilot on June 4, 2012.

Past time for justice reform

It is no secret that flaws exist in this nation's criminal justice system. As in all human endeavors, there is a margin of error.

The margin, however, may be greater than most Americans are willing to accept when it comes to meting out punishment in the name of justice. New research suggests that lawmakers, who last year cast aside a proposal to reform the nation's criminal justice system, ought to reconsider.

The reforms, proposed by outgoing Virginia Sen. Jim Webb, would have established a blue-ribbon commission to identify ways to make the system more efficient, effective and just.

As Webb repeatedly noted, the United States accounts for 5 percent of the world's people but 25 percent of the world's reported prison population. Programs aimed at rehabilitation - and reducing recidivism - aren't adequately developed or supported.

The nation's endless war on drugs has led to a 1,200 percent increase in inmates convicted of drug offenses in the past 30 years. And even with more people locked up, a majority of Americans report feeling less safe.

The proposed commission would have offered recommendations, which states and localities could have considered for adoption. It was roundly supported by law enforcement and civil rights groups before it was demagogued in the Senate and defeated.

A recent study by two universities underscores yet another reason for reform: The prevalence of mistakes in investigations and trials.

The University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law have compiled a first-of-its-kind national database of people wrongfully convicted of serious crimes since 1989. The researchers contend they've found more than 2,000 people wrongfully convicted, and they've listed details for about 873. Nearly half were imprisoned on murder charges.

Twenty-five are from Virginia.

Some were convicted of lesser charges:

Christopher Prince of Culpeper, convicted of burglary, was exonerated after victims admitted lying to investigators. Some were freed by happenstance: Arthur Lee Whitfield and Julius Ruffin, both of Norfolk, were both cleared of sexual assault convictions after DNA testing of evidence preserved by a state forensic scientist who broke protocol.

Because they were publicized, those cases were relatively easy to compile for the database. Scores of others likely exist.

"We know that there are many more that we haven't found," said Samuel Gross, a Michigan professor and editor of the National Registry of Exonerations.

From a purely financial perspective, the database - and the findings cited by Webb - suggest taxpayers aren't getting nearly the return they deserve on the billions spent to fight crime every year. From a civic perspective, they demonstrate a failure of policies to adhere to justice rather than identifying criminals and racking up convictions.

And until Americans demand change, nothing will.

A new National Registry on Exonerations casts doubt on the accuracy of our criminal justice system

The following editorial was published in the Birgmingham (Alabama) News on May 23, 2012, by the Birmingham News editorial board.

How many is too many?

One?

Five?

Ten?

One hundred?

Eight hundred and seventy-three?

How many people wrongfully convicted of a crime are we willing to accept? Especially those who are sentenced to Death Row?

A report released Monday by the National Registry on Exonerations raises those questions and more. The registry, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, profiles 873 exonerations from January 1989 through February 2012. The report discusses including at least 1,170 other defendants whose convictions were dismissed after more than a dozen major police scandals. Most of those scandals involved the massive planting of drugs and guns on innocent defendants, which led to "group exonerations."

Most of the 873 exonerations profiled in the database are for homicides (416 cases, including 101 resulting in death sentences) and sexual assaults (305). The most common reasons for wrongful convictions are perjury or false accusations (in 51 percent of cases) mistaken eyewitness identification (43 percent) and official misconduct (42 percent), according to the report. False or misleading forensic evidence and false confession are other major causes for false convictions.

"The National Registry of Exonerations gives an unprecedented view of the scope of the problem of wrongful convictions in the United States," said Rob Warden, executive director of the Center on Wrongful Convictions. "It's a widespread problem."

Including, as you might imagine, in Alabama.

Among the 873 exonerations included in the registry are 17 convictions in Alabama -- including five in Jefferson County -- later cleared in Alabama courts. One of those cases was a federal exoneration; the other 16 were state cases. Alabama ranks 14th nationally for total false convictions and 10th per resident, according to the report.

State Attorney General Luther Strange said the numbers actually make the case that Alabama's criminal proceedings result in very few errors.

"Sixteen errors out of tens of thousands of convictions does not indicate a systemic problem but rather supports the high degree of accuracy in our proceedings," he said in a statement.

But the study's authors say the number of exonerations is much higher than they have been able to document. The ones they found are "the tip of the iceberg," according to Michigan Law professor Samuel Gross, editor of the registry and an author of the report.

"Most people who are falsely convicted are not exonerated; they serve their time or die in prison," he said in a statement. "And when they are exonerated, a lot of times it happens quietly, out of public view."

Of the 16 state exonerations in Alabama, six were men sentenced to death. It does not require a vivid imagination to wonder whether a wrongly convicted person awaits execution on Alabama's Death Row or, worse, whether the state has killed an innocent person in our names.

If someone goes to prison for a crime he or she did not commit, it is an injustice. That is especially true in capital murder cases, where a life is at stake. We would like to have as much confidence in Alabama's criminal justice system as Strange professes, but the report on the national registry casts enough doubt to cause grave concern.

The National Registry of Exonerations, which will be updated on an ongoing basis, can be viewed online HERE.

Colorado's wrongful conviction of Robert Dewey holds lessons

The following opinion by Jason Kreag was published by the Denver Post on May 4, 2012 Lawyer: Colorado should compensate the innocent

NEW YORK — During the nearly 18 years he was incarcerated for a rape and murder that DNA evidence finally proved he didn't commit, Robert Dewey coped by imagining that he was riding a motorcycle. In his own words, "I'd hop on and ride in my mind."

Eighteen years is a long time to fantasize about being on a bike, but it would have likely been an even longer ride had the Colorado state attorney general's office and the Mesa County district attorney's office not been willing to work with the Innocence Project and Dewey's long-time counsel, Danyel Joffe, to reopen its investigation of the crime.

Dewey became a suspect in the 1994 rape and murder largely because the police found his actions suspicious. Although DNA testing done at the time excluded Dewey as the source of semen at the crime scene, pretrial DNA testing of his shirt seemed to indicate the presence of the victim's blood on it. Even this evidence was not particularly strong; the analyst testified at trial that the blood on Dewey's shirt was consistent with approximately 45 percent of the population. That was good enough for the jurors, who convicted Dewey despite any other substantial evidence of guilt.

We now know the system got it wrong. Robert Dewey is innocent. Unlike many of our clients, he was fortunate to have been assigned counsel to help with his post-conviction appeals. In 2007, the Innocence Project teamed up with Joffe and retested the trial scene evidence. Advances in DNA technology made it possible to definitively exclude the victim as the source of the blood on Dewey's shirt. The new testing also confirmed that Dewey wasn't the source of the semen recovered from the blanket.

We took this information to the state attorney general's office, which had recently received a federal grant to fund a Justice Review Project. After securing the cooperation of the Mesa County District Attorney's office, the attorney general's office conducted additional testing confirming that it was Dewey's blood, not the victim's, on the shirt.

This testing also yielded DNA results from the semen stain on the blanket which matched profiles of the DNA from the fingernail scrapings and other evidence from the victim's body. The profile of the semen was put in the CODIS databank and matched to Douglas Thames, who is serving a life sentence for a similar crime. The DNA results and some traditional investigative work confirmed Dewey's innocence.

Now that Dewey's innocence has been established, four aspects of the case deserve attention. First, although prosecutors elected not to pursue the death penalty in his case, the crime certainly could have been prosecuted as a capital murder. It's sobering to think what might have happened had he been sentenced to death.

Second, all too often we are forced to close cases because crime scene evidence is no longer available. Fortunately, that is not a problem in Colorado because the state legislature passed a law in 2008 requiring law enforcement to preserve evidence. Colorado lawmakers should pat themselves on the back because these laws not only help to free the innocent but, as we saw in this case, can also help identify the real perpetrator.

Third, Dewey's case is a compelling example of the usefulness of having the prosecution and defense cooperate in post-conviction cases involving innocence claims. DNA evidence has helped to show many in law enforcement that the system doesn't always get it right. In response, prosecutors around the country have started conviction integrity units like Colorado Attorney General John Suthers' project to investigate cases where someone may have been wrongfully convicted.

Dewey's case is the first exoneration to have stemmed from the Colorado project.

The Innocence Project has worked with many of these projects, and we've found that the most successful projects welcome cooperation from defense attorneys. Involving defense attorneys provides an alternative perspective and therefore a more objective examination of the evidence.

After this successful experience, we're hopeful that Attorney General Suthers has seen the value of always including defense lawyers in these investigations. From our experience, those projects that encourage defense cooperation are likely to find cases where the wrong person has been convicted, whereas those that work in a vacuum rarely do.

Finally, while Colorado has done many things right with regard to uncovering wrongful convictions, it is lagging behind in one very important regard: compensation. While he was wrongly incarcerated for the past 18 years, Dewey lost out on some of the best years of his life. He missed out on opportunities to get an education and build a career.

When he was released last week, he walked out of prison with literally nothing but the clothes on his back. While nothing could compensate Dewey for the years he's lost, the state owes it to him to see that he doesn't spend the remainder of his years penniless.

My hope for him is that the state will agree and quickly pass a compensation statute to bring Colorado in line with the majority of the states that have compensation statutes for wrongfully convicted individuals.

I also hope that Dewey has a chance to hop on a real bike soon. I have no doubt that when he does, he'll quickly remember the feeling he had on his last ride nearly 18 years ago, before his odyssey through the criminal justice system began.  

Jason Kreag is a staff attorney at the Innocence Project.

Crime on Campus

We're pleased to share this infographic from onlinecolleges.net, originally published on their blog on April 26, 2012. The full graphic can be seen at http://www.onlinecolleges.net/2012/04/25/crime-on-campus/
Presented By: Online Colleges Blog

Morton case calls for system reforms

The following editorial was published by the (Austin, TX) Statesman on March 30, 2012.

‘My life is great," Michael Morton told the American-Statesman's Chuck Lindell this week. "I have been blessed in a million ways, more than I can count."

It's hard to imagine how someone who spent almost 25 years wrongfully imprisoned can call life great and consider himself blessed, but in a two-part interview published Thursday and Friday by the Statesman, Morton consistently expresses an admirably wise perspective on life.

And it's clear reading Morton's story that his experience must lead to changes that hold prosecutors accountable for wrongful convictions.

Morton believes that prosecutorial misconduct by former Williamson County District Attorney Ken Anderson, who's now a district judge, led to his being convicted of killing his wife, Christine. This summer, a special court will explore whether Anderson hid evidence that could have prevented Morton's conviction. Anderson maintains he did nothing wrong.

No longer seen as "a murderous perv," as he phrased it, Morton is now a man praised for his perseverance through a nightmarish ordeal. From his interview with Lindell, and from video taken by the Statesman's Kelly West, it appears that Morton, 57, is coping very well with life outside prison. He is slowly rebuilding his relationship with his son, Eric, who was only 3 when his mother was murdered and who, until five months ago, thought of his father as his mom's killer.

In his interview with Lindell, Morton talks about the horror of the murder of his wife in August 1986 and the shock of being accused and, in February 1987, convicted of killing her. He discusses the years he spent in prison and how he maintained his innocence while trying to hold on to something positive to get him through the terrible days. He talks about the gradual loss of contact with his son, a religious moment that brought him strength during one of his darkest hours, and the long journey toward freedom and exoneration last fall.

Morton's journey toward freedom began in 2004 when the Innocence Project — a nonprofit group dedicated to using DNA technology to free wrongly convicted inmates — took on his case. John Raley ("Very few people can look to somebody and say that you owe your life to him," Morton says of the tireless Houston attorney) and the Innocence Project's Nina Morrison are the story's legal heroes.

Morton still would be in prison if Raley and the Innocence Project had not finally won, after six years of litigation, DNA testing on a blood-stained bandanna found near Morton's house. It remains incomprehensible that Williamson County District Attorney John Bradley fought DNA testing on the bandanna until ordered to so by an appeals court.

Once tested, Morton's innocence became clear. Christine Morton's DNA was on the bandanna; so, too, police say, was the DNA of Mark Alan Norwood, a man with a criminal history, including a charge of aggravated assault.

Norwood has since been charged with capital murder in Christine Morton's death. He also is a suspect in the 1988 killing of Debra Masters Baker, who, like Morton, was bludgeoned to death while she lay in bed.

Michael Morton's case must motivate the Legislature and State Bar to adopt prosecutorial reforms. One change Morton hopes will occur is simple and should be free of any controversy: Require prosecutors to sign an affidavit saying they've given defense attorneys all possibly exculpatory evidence. Failure to turn over evidence that might benefit a defendant should lead to a fine or, better yet, the loss of a prosecutor's law license.

Rules governing prosecutorial behavior should be expanded and strengthened. Procedures leading to the possible punishment of prosecutors in wrongful conviction cases can be clearly outlined and simplified. Perhaps even citizens outside the closed culture of a courthouse can be given a role in determining misconduct and punishment.

Morton's must be more than a story of justice delayed or derailed, of exoneration, reunion and redemption. It must also be a story of justice reformed.

Thomas Arthur Almost Executed Thursday Despite Proof of Innocence

Thomas Arthur Almost Executed Thursday Despite Proof of Innocence
By Michelle Brunet
http://www.criminaljusticeschoolinfo.com/

Thomas Arthur was scheduled to be executed Thursday at 6pm. On Wednesday, luckily, the 11th U.S. Circuit Court of Appeals upheld the stay granted to him by a federal appeals court last week. I say luckily because, not only has Arthur always claimed his innocence (which, lets face it, might be said by those who are guilty as well), but key factors have come to light since his original conviction that suggest he did not commit the crime. His defense team wants to foot the bill for a crucial DNA test that could affirm his innocence, but have so far been denied. It makes me question whether Arthur’s criminal past has been held against him causing a miscarriage of justice throughout all his legal and court system proceedings for nearly 30 years.

It may surprise you that the temporary suspension of Arthur’s execution has nothing to do with his possible innocence, but for the manner he was to be put to death. His defence attorneys requested a stay because of the cruel nature of the three-drug lethal injection process that was planned. Specifically, opponents to the controversial mode of lethal injection argue that when pentobarbital is injected first it does not effectively render the body unconscious thus leading to potentially high levels of torture and pain.

Arthur has avoided this fatal fate - a punishment sentenced to him when he was convicted for the murder of Troy Wicker - for at least the immediate future. In 1982, Wicker was found dead in his Muscle Shoals, Alabama home, with a gunshot wound to his right eye. Those who believe Arthur is guilty tell that he was hired by the victim’s wife, Judy Wicker, to carry out the murder. Judy had been convicted for her part in the murder which resulted in her collecting $90,000 in life insurance.

According to Thomas Arthur Fight For Life, Judy had been sentenced to life in prison, but was released after serving ten years for issuing a statement condemning Arthur. The website adds that in seven previous statements, she had not once implicated Arthur.

In 2008, Bobby Ray Gilbert confessed that he, not Arthur, murdered Troy Wicker. Gilbert stated that he had been having an affair with Judy and that she had told him her husband was physically abusive. Gilbert is currently serving life in prison for another murder.

Additionally, no physical or DNA evidence links Arthur to the crime scene where Wicker was found dead. Basic DNA tests were conducted on a wig, asserted to be worn by the killer, but the results were inconclusive and yet did not link Arthur or Gilbert. Arthur’s attorneys have asked to pay for a more specialized DNA test (a mini-STR analysis) on the wig to affirm their client’s innocence, but the State has refused the request.

At the time that Wicker was murdered, Arthur was serving time at the Decatur Work-Release Centre for a second-degree murder conviction. The State claims Arthur left the centre and drove the 45 miles to Muscle Shoals. Is it possible that Arthur’s past murder conviction led the prosecutors and the jury to convict him for a murder he very well may not be responsible for?

Earlier this week, Tom Smith (TimesDaily.com) did a piece describing Sherrie Stone’s fears that her father Arthur would be put to death Thursday. Since his 1983 conviction, he has been granted four stays but she felt that this time he would not be so lucky. “If a confession and DNA testing that doesn’t match him won’t work, I don’t expect it to be stopped this time,” Stone shared.

On Wednesday, Stone’s prayers were answered; but will her hopes, of the courts ruling out every doubt before executing her father, be realized? “If we are to continue executions in this country, laws must be put in place in which DNA testing must be allowed at all stages of the process. There is a chance we are executing innocent people.  I know because my father is one of those people,” expressed Stone.

If you believe that the State of Alabama should allow for a more specialized DNA test in the case of Thomas Arthur, you can send a message to Governor Bentley directly from the Innocence Project.

Closing of Point Park University's Innocence Project should be open to public dispute

The following opinion by Cody McDevitt was published in the Point Park Globe on March 18, 2012.

Since March Madness is upon us, I think it's fitting to recall a moviescene from “Hoosiers.” It's my favorite moment from any sports movie. Coach Norman Dale's job is in jeopardy. The town has called a meeting to vote on whether he should be fired.

Here's how the scene goes, for those who haven't seen it:

"I've made some mistakes, but they're mistakes I take full responsibility for," Coach Dale said. "I was hired to teach the boys the game of basketball, and I did that to the best of my ability. I apologize for nothing. You may not be pleased with the results, but I am. I'm ver yproud of these boys."

Later on in the scene, the basketball star Jimmy Chitwood arrives.

"I don't know if it'll make any change, but I figured it's timefor me to start playing ball," he said.

The crowd erupts into applause.

The foreman of the meeting declares as he points to Coach Dale,"I told you once we got rid of him," Jimmy continues. "One other thing. I play. Coach stays. He goes. I go."

I wish I could say my writing abilities were on the level of Jimmy Chitwood's basketball talents, but that would be delusional and narcissistic. There is someone I know though who is close to Norman Dale.His name is Bill Moushey, and he is my professor in the Innocence Institute graduate level class I take at Point Park University. He teaches the game of journalism.

When I was in high school, I got in a passionate disagreement with Kevin Bastos, my media studies teacher. He said he wouldn't mind if one innocent man were in jail so long as 100 guilty men were there with him. I, as an idealist, took the counterpoint. I would rather have the guilty roam free so long as the innocent weren't punished. We didn't get along very well.

My college journalism teachers were more principled. My favorite teacher, Doug Cosper, taught me to "comfort the afflicted and afflict the comfortable."

He travels the world and teaches journalism abroad and in Colorado. He's someone who taught me a lot.

But the person I've met with the most experience, the most wisdom and the most fascinating stories about journalism is Bill Moushey.Up to this semester, my first in graduate school, I had never met a reporter who was once at the wrong end of a gun because of a story he wrote, nor had I met someone who used so many colorful anecdotes and analogies. He epitomizes what you think when you hear the term hard-nosed journalist. He's Pittsburgh's Pete Hamill.

So it was heart-wrenching to see him well up with tears this week. The organization he champions, the Innocence Institute, will no longer exist after this semester. The reason, as it always is with journalism schools, was financial in nature.

For those who aren't familiar with the Innocence Institute, it is an organization dedicated to freeing wrongfully convicted men and women.Point Park is one of only three schools to be affiliated with the Innocence project. It has reversed 14 convictions.
Moushey is the antithesis of what my high school media studies teacher was.Though he knows firsthand from all the letters he receives from convicted pedophiles, rapists and murderers that you assume convicts are guilty, he also knows that innocent men get railroaded by unreliable eyewitness testimony, prosecutorial misconduct or by the withholding of evidence.Furthermore, he takes it upon himself and his students to correct injustice when it is done and to aggressively pursue the truth, however ugly it maybe.

I know I can't stand in front of the Point Park faculty and threaten to "not play." That would make no difference. But I want to bring this decision to the public so lawyers, journalists and community organizers can think about whether they want to write emails or letters to the School of Communication at Point Park to request that they continue this program.

Ultimately, whether or not an innocent man is in jail probably won't affect you unless you are that innocent man or if he's your brother or father. But I hope there are enough idealists out there to not let the Innocence Institute go so easily.

One of my favorite historical quotes expresses a principle that Bill Moushey embodies. Eugene Debs said it on Sept. 18, 1918. If you don't appreciate it, then you probably won't understand why the Innocence Institute is so noble."Years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then and I say now, that while there is a lower class, I am in it; while there is a criminal element I am of it; while there is a soul in prison, I am not free."

Department of Injustice

The following editorial was published by the Wall Street Journal on March 17, 2012.

Prosecutors in the Stevens case deserve severe sanctions.

Something is very rotten at the U.S. Department of Justice. No other reasonable conclusion can be drawn from an independent report on the 2008 prosecution of then-Senator Ted Stevens (shown in photo taken in 2009).

According to the exhaustive study ordered by Judge Emmet Sullivan, government attorneys engaged in "systematic concealment" of "significant exculpatory evidence which would have independently corroborated Senator Stevens's defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness."

Most damaging to Justice's credibility is that, three years after Judge Sullivan set aside the guilty verdicts against Stevens, the department still hasn't disciplined the men and women involved. Nor has it instituted harsher penalties for future abuses. Attorney General Eric Holder told a Senate committee last week that a separate internal inquiry at Justice is almost done, but he would not promise to make all the results public.

Speaking of public scrutiny, you've probably never heard of Matthew Friedrich, Rita Glavin, Brenda Morris, Joseph Bottini, James Goeke or Edward Sullivan. But maybe more people should know them, and learn the various roles they played in a prosecution that not only trampled on the rights of the accused, but denied the people of Alaska a fair election and literally shifted the balance of power in the U.S. government.

The Justice lawyers were not all equally culpable—some withheld evidence; others failed to ensure that their subordinates honored the defendant's basic rights. And while prosecutors acknowledge the violation of Stevens's rights, they generally blame them on communication problems and other process errors rather than any intent to mislead the judge and jury.

Guilty verdicts against the Republican Stevens arrived less than two weeks before Election Day in 2008, causing the previously popular Senator to lose a close race to Democrat Mark Begich. Mr. Begich would go on to provide the 60th Senate vote to pass ObamaCare in 2009.

Virtually the entire case against Ted Stevens hinged on the testimony of the government's star witness, VECO Corporation CEO William Allen. To protect his credibility, prosecutors withheld from the defense evidence that he had suborned perjury in a separate criminal investigation. Nor did prosecutors say a word in court when, according to the report, Mr. Allen offered testimony that the prosecution knew to be false.

The government's seven-count indictment for false statements accused Stevens of accepting free home renovations from Mr. Allen's company and then not reporting these gifts on federal disclosure forms.

Mr. Stevens and his wife said they had paid $160,000 for the renovations and as far as they knew that was the total cost of the work. What the prosecutors learned in interviewing witnesses—but never shared with the defense—is that even the foreman on the job site shared the Stevens' understanding that they had been appropriately billed for all the work. Instead of sharing this evidence supporting Stevens's defense, prosecutors selectively quoted the foreman to make it appear as if he had said the opposite, and they used his comments to falsely attack Stevens.

Stevens died in a 2010 plane crash so he never learned the full story that was revealed this week, nor did he ever get a fair shot to win back his Senate seat.

The report found that the prosecutorial misconduct was "intentional," though it doesn't recommend criminal contempt prosecutions because at trial government lawyers were not specifically ordered to share all exculpatory evidence. They are of course already required to do so under the Supreme Court's Brady decision, and doing so ought to be a matter of basic legal ethics.

It would be nice to think these abuses were rare lapses. But we wonder what else we might learn if every DOJ prosecution was subjected to a review like the one Judge Sullivan wisely demanded.

What is certain is that Ted Stevens was not alone. Guilty verdicts against two Alaska state legislators were also overturned because Justice withheld evidence related to Mr. Allen. In recent years charges against executives at tech company Broadcom were also tossed out because federal prosecutors had improperly pressured and influenced key witnesses for the defense.

Americans hand prosecutors an awesome power—the power to destroy fortunes and futures, and in this case to reallocate national political power. We are seeing a pattern of abuse of this power, in order to win big cases. To help prosecutors remember that their job is to do justice and not simply to beat the defense team, there should be automatic and severe penalties for Brady violations. Prosecutors could also be required to turn over more raw data with potentially exculpatory evidence, except in cases where it threatens national security or endangers witnesses in a criminal case.

Mr. Holder claims to have addressed the problems in the Stevens case by expanding training programs and the like. But as the nation's chief law enforcer, he should know that harsh punishment is the appropriate response when anyone violates the rights of a citizen as badly as prosecutors did in the Stevens case.

Maryland's broken death penalty

The following editorial was published by the Washington Post on March 6, 2012.

ON PAPER, Maryland courts are empowered to impose the death penalty in certain murder cases. In practice, the state’s death penalty is in remission. Five convicts remain on death row, and defendants can be prosecuted for capital murder and sentenced to death, but the state lacks any legal method of carrying out executions. No one has been put to death in Maryland since 2005.

That status quo seems acceptable to the power brokers in Annapolis, who would rather not add to a list of controversies that now includes legalizing same-sex marriage and subsidizing higher education for illegal immigrants.

But by ducking the issue, they are leaving in place a costly, inefficient, unjust and dysfunctional system that exacts a terrible toll on the families of murder victims. Rather than legislating and leading, state lawmakers are in denial.

Three years ago, an effort to abolish the death penalty narrowly failed in the General Assembly, which instead restricted it to cases where there is DNA evidence, a videotaped confession or video linking the suspect to a murder. But the legislature’s reform fixed nothing; if anything, it codified a system even more arbitrary than the one it replaced. Now the nature of the evidence, rather than the barbarity of the crime, is the critical factor. So a murder conviction based on DNA evidence might result in a death sentence, but not a Virginia Tech-style killing spree whose perpetrator is identified by multiple witnesses.

Nor did the changes in the Maryland law address the racial and jurisdictional disparities in the death penalty’s application. And there is no evidence that the death penalty is more effective at deterring murders than is a sentence of life without parole.

The broken system is particularly burdensome for the families of murder victims, who face years, even decades, of litigation. Three of the state’s five death-row prisoners were sentenced nearly 30 years ago; the others were sentenced in the mid-1990s.

Whatever moral convictions one holds about capital punishment — and we think it is wrong — Maryland has failed to find an evenhanded, just and fair-minded way to apply it. As a recent report by some of Maryland’s most prominent attorneys concluded, the state’s current law “is likely to increase the arbitrariness of the imposition of the death penalty because persons who commit the most heinous crimes — the ‘worst of the worst’ — are not necessarily the same people who will be eligible for the death penalty.”

A majority of the Maryland General Assembly favors an end to capital punishment in the state. Still, legislative leaders are reluctant to allow consideration of a bill that would repeal the death penalty and shift the anticipated savings in the state budget to programs to benefit victims’ families. The leaders would rather leave in place a system that is a disgrace to justice, and to Maryland.

Can Bad Evidence Ever Be Good Law?

by Michael G. Brock MA, LLP, LMSW

In an article that ran in the Detroit Free Press on February 8, 2012, and again online under the title: Judges to decide: Can religious confessions be used against you?, David Ashenfelter discusses the case of People v. Bragg. Mr. Bragg is charged with the rape or molestation of a 9 year old girl when he was 15. The girl revealed the molestation to her mother 2 years later after a church function, and her mother told their Baptist pastor, Rev. John Vaprezsan.

Vapreszan then decided to mix pastoral counseling and criminal investigation in much the same way that I have seen people in my line of work mix psychotherapy and forensic investigation, but truly in a way that is more sinister. When therapists mix therapy and forensic investigation, they usually don’t bother to confront the accused. As a rule, they ask direct and leading questions of the presenting parent and the child who has allegedly been abused.

In this case, Vaprezsan apparently decided to deliberately abuse the trust that his congregants place in him by interrogating Mr. Bragg under the guise of religious counseling. After extracting a confession (according to his testimony, but a fact in dispute by Bragg and his mother, who was at the interview), he contacted the police and gave them a statement, then testified at pretrial against Mr. Bragg.

To her credit, Judge Cynthia Gray Hathaway disallowed his testimony, but Prosecutor Teri Odette, appealed the decision, apparently hoping that in this climate in which all close calls go to the prosecution and anyone can be a self-appointed investigator, the appeals court will simply ignore the law.

No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination."

Michigan Compiled Law 600.2156

Any communications between attorneys and their clients, between members of the clergy and members of their respective churches, and between physicians and their patients are hereby declared to be privileged and confidential when those communications were necessary to enable the attorneys, members of the clergy, or physicians to serve as such attorney, member of the clergy or physician.

Michigan compiled law 767.5a

The prosecution has made the argument that the clergyman did not claim privilege, but the law does not say that the privilege pertains only to clergy, but to the confessor as well. The clergyman is not “allowed” to disclose any confession or communication obtained by him in his professional capacity even if he wants to. Had Rev. Vaprezsan informed Mr. Bragg that he was wearing his police investigator hat on this particular occasion, it seems unlikely that Mr. Bragg and his mother would have accepted the invitation of the pastor to pay him a visit and discuss this matter.

He was counting on the special trust that the members of his congregation have in him to obtain information he apparently thought the police would have a more difficult time obtaining. He is probably right; if all clergy were to deputize themselves as law enforcement officers they could routinely pick up the telephone after a conference and provide evidence for one member of their congregation against another. Perhaps they could even be paid in this capacity—or perhaps not.

This alleged man of the cloth is a disgusting affront to all clergy and a menace to his congregation. But if the allegation is true, doesn’t he have an obligation to see that justice is done? Perhaps, but within the parameters of appropriate behavior for a clergyman. If Rev. Vaprezsan had suggested to the child and her mother that they contact the police and Protective Services and file a report it is very likely that a successful prosecution would have been undertaken; one that was both legal and ethical and resulted in a conviction. Instead, we have a case in which a minister is violating a sacred confidence and one of his most important obligations as a member of the clergy, and a prosecutor is asking the appeals court to toss the law because her cause is just.

How did we get to the place where convicting someone with bad evidence replaced getting someone off on a technicality? And which attitude is ultimately more dangerous? Do we really need an imprisonment rate that is ten times higher than any other civilized country in the world? What happened to the axiom that it is better for the guilty to go free than the innocent to be convicted? What happened to the presumption of innocence? And what about Louis Brandeis’ admonition that, “Experience teaches us to be most on our guard to protect liberty when the government's purposes are beneficent.”

Why is it okay to bait a person under arrest into making statements after that person has said they want legal representation? Where do these policies lead? They constitute a serious and ongoing erosion of due process guarantees and lead to a police state mentality. And don’t tell me I don’t have a right to an opinion on the matter, I live in this country.

It is important to recognize that the average citizen has fewer resources than any government, and that government ought not to exploit it citizens because of this discrepancy. This it would seem is the true definition of conservative, if by that we mean the intentions of our founding fathers. A primary concern was that the citizens of our new country should be free from bullying by their government. This notion is clearly out of favor now, however. Take for instance the case of Dr. Labeed Nouri.

According to L.L. Brasier (Detroit Free Press, August 29, 2011) Dr. Nouri was convicted of sexually assaulting a young woman he employed as a favor to a friend. He did 3.5 years in prison, where he was repeatedly attacked by other prisoners, before the woman’s boyfriend came forward to say that it was all lies and he wore a wire to prove it. But what did the most noble prosecutor Jessica Cooper do when she received incontrovertible evidence of the perjury?

Prosecutors, noting Nouri had been convicted, offered a deal: If he pleaded no contest to a low-level misdemeanor assault - with no probation-reporting requirements and no restrictions on obtaining his medical license - he could be free within hours and get it expunged after five years.

Once they found out that Dr. Nouri had been wrongly convicted of a crime, the state should have been falling all over itself to release him and restore him to his rightful place in society. Instead, they let him out of prison, but added insult to injury by requiring him to plead to a crime they know he didn’t commit.

Why? One can think of many reasons, none of them honorable. The prosecution could have been protecting itself against lawsuit or possible criminal charges for maliciously prosecuting a case that had no physical evidence (because the prosecution’s witness refused to provide it), and, in which the facts clearly indicated the accuser was lying, even before the case went to a jury. How did the prosecution know that? Because at the precise time the accuser stated she was being abused—and she was very specific about the time—Dr. Nouri was continuously dictating medical records and there was a documented, accurate record of the fact.

Dr. Nouri’s attorneys should have understood the psychological temper of the times well enough to put him on the stand in his own defense. Regardless of what instructions a judge gives a jury, most people are psychologically predisposed to believe that someone who won’t speak in his own defense is guilty as charged. And especially in sexual abuse cases the presumption is going to be with the prosecution.

I had a case in Dumas, Texas a few years ago where defense counsel thought they had won the case without putting on their own witnesses. They confronted the accuser on cross examination with the documented fact that she had made a false allegation against someone else a year earlier and she had lied about it again on the stand during this trial. But the jury was unmoved. After the defendant was convicted, the prosecutor said to me, “Down here we have a saying, if you don’t talk, you don’t walk.”

That mistake notwithstanding, the fact that these cases are so easy to win should not be a reason for ambitious prosecutors to feather their nests by sending people they should know are innocent to prison. Covering their behind or protecting people who commit malicious perjury should not be a reason for hanging yet another crime on the true victim.

Michael G. Brock MA, LLP, LMSW is licensed as both a master’s level psychologist and social worker. He is in private practice at Counseling and Evaluation Services, 2514 Biddle, Wyandotte MI 48192. Mr. Brock has been in the therapy field since 1974 and, in the past several years, custody evaluations have become the majority of his practice. Mr. Brock has done hundreds of evaluations. His website is at http://michaelgbrock.com/

The West Memphis Three: An A-Z List of Justice Gone Wrong

The following opinion by Meghan Lalonde was originally posted at Law As She Is Spoke, an online project of Program in Law and Journalism at New York Law School, on February 16, 2012.

West Memphis, 1993: Three 8-year-old boys brutally murdered in small-town Arkansas. Three satanic teenage “punks” to blame it on. When looking for suspects, these teenagers fit the bill – long hair, heavy metal fans, all dressed in black. There was even a confession. The story caught the attention of two HBO filmmakers, who decided to make a documentary about the horrible crime that traumatized the community.

The film that introduced the world to defendants Damien Echols, Jason Baldwin, and Jessie Misskelley – the West Memphis Three (WM3) – wasn’t supposed to be about wrongful convictions. It wasn’t supposed to be a project that led to two additional films over the next 18 years. It just turned out that way.

Last month, HBO premiered the third and final chapter of the documentary, “Paradise Lost 3: Purgatory.” I’d heard about it and thought it seemed interesting so on a rainy Friday afternoon I turned on the TV to give the first one a shot. Six hours, two sandwiches, and a full liter of Diet Coke later, I was reeling.

Searching for order in all the disorder, I’ve boiled it down to an A to Z list of some of the haunting and perplexing aspects about this terrible miscarriage of justice. There will be no “Spoiler Alert” here. Google the film and you’ll see that the three convicted murderers are free, released in August 2011 after entering into Alford Pleas (see “P” below). As with so many epic stories, knowing the ending doesn’t minimize the gripping nature of the journey.

Alternative suspects. One of the many critical shortcomings of the West Memphis Police Department was failing to search for leads on additional suspects. First, police never investigated Terry Hobbs, the stepfather of one victim with a history of violence. Mr. Hobbs claimed he hadn’t seen the children the day they went missing, but his neighbors are certain they saw him with the kids after school, around the time they were last seen. In 1993, these neighbors were never questioned. Police also botched the investigation of an unidentified black man who was seen at a local restaurant covered in mud and blood on the evening of the murders. They collected blood samples from inside the restaurant, then lost the evidence.

Blood. When the bodies of the three boys were discovered in a stream they were found naked, hogtied, stabbed, and mutilated. The prosecution argued that the murders occurred near where the bodies were found, but if that were true, wouldn’t there have been blood found at the scene? There wasn’t. Not even a drop. The use of a knife and ritual bloodletting thought to be part of satanic rituals were integral to the prosecution’s theory against the WM3 and yet there wasn’t any blood to be found. Recent forensic analysis has explained that the scratches and skin flaying of the victims were actually due to animal predation.

Celebrity support. Celebrities figured among thousands of supporters who learned about the WM3 from the first film. In 2010, Johnny Depp and Eddie Vedder hosted a benefit concert in their support. When the WM3 were released in August, Damien Echols, the defendant who had spent 18 years on death row, said he wanted to go to Disneyland. Mr. Depp made it happen.

Death row. “Welcome to where time stands still/No one leaves and no one will” are the lyrics to one of Damien Echols’s favorite Metallica songs, “Sanitarium.” It’s a fitting description for solitary confinement at Varner Super Maximum Security Unit in the Arkansas Department of Correction. “You have to create your own world in there or else you’ll go insane from that stuff,” he said in an interview with Piers Morgan after his release. See “S” for more on sentencing.

Eleven. Perhaps the most chilling quote from the entire case came from Chief Investigator Gary Gitchell. At a press conference in the early stages of prosecution, Mr. Gitchell was asked how strong he thought the case was on a scale of 1-10. His answer: “Eleven.” Mr. Gitchell has not spoken publicly about the release of the WM3.

Freaks. In a town filled with bible thumpin’ Christians, you might be able to guess how well three longhaired heavy metal-loving teenagers fit in. They didn’t. “Just look at the freaks,” said Pamela Hobbs, the mother of one victim. “They look like punks.” Damien Echols had even dabbled in Wicca, a religion historically tied to witchcraft, easily making him the strangest and most targeted member of the bunch. At the time, he said, “What people don’t understand they try to destroy or ridicule, try to make it look bad or wrong. West Memphis is a second Salem right now.” He was only 19 at the time but he was right.

Guilty. The WM3 were all found guilty of murder. Given the lack of evidence to tie them to the crimes, these guilty verdicts are both astonishing and frightening.

HBO. Every now and then a documentary can have a direct impact on its subjects (see “The Thin Blue Line”). The WM3 will tell you that if not for the first “Paradise Lost” film they would not be free today.

IQ. One of the WM3, Jessie Misskelley, had an IQ score between 72-73 and functioned at the level of a third grader. When questioned by the police about his friends, he stated he committed the crimes along with them. According to experts on coerced confessions, Jessie is the type of person who is likely to give a false confession — easily confused and wanting to please his interrogators. See “Q” for more.

Justice. As of now, there is no justice for the WM3 because they remain convicted murderers in the eyes of the law, “They sent us to prison for the rest of our lives,” said Jason Baldwin after he was released, “Then we had to come here and the state says ‘we’ll let you go only if you admit guilt.’ That’s not justice no matter how you look at it.” (See “P” to learn more).

Knives. A knife was (conveniently) found in a lake behind Jason Baldwin’s house (months after the WM3 were arrested), and played a critical role for the prosecution, which suggested the knife was used to mutilate the young victims. A second knife was given to HBO filmmakers by John Mark Byers, the stepfather of one victim, just days before his home was searched. This knife was turned over to police after a producer at HBO noticed there was blood on it. Much of the first two films dealt with the suppositions on both sides that one or the other of these knives was the murder weapon. As noted earlier (see “B”) today it seems knives were not involved in the murders.

Love. It’s probably the last thing you’d associate with death row, but here we are. Three years into his prison stay, Damien Echols started receiving letters from a woman in Brooklyn who’d seen “Paradise Lost.” They began exchanging letters and just over a year later, Lorri Davis, the architect turned activist, visited him in prison and moved to Little Rock. In 1999 they were married in the prison visiting room. Ms. Davis has worked tirelessly for his release.

Media coverage. From the moment news broke of the murders the story made national headlines. But back in 1993, the media’s coverage of the arrests painted the WM3 as satanic killers. They were fighting an uphill battle, one that in hindsight, they had no chance of winning.

Natalie Maines. The lead singer of the Dixie Chicks was an active supporter of the WM3 during their time in prison. In fact, she was so vocal that one victim’s stepfather, Terry Hobbs, sued her for defamation after she made remarks suggesting he was involved with the murders. It was in defending her for defamation that her attorneys interviewed Mr. Hobbs and gleaned facts that further incriminated him. Today, he is seen as the most likely murderer, but he has not been arrested. In any case, his suit against Ms. Maines was dismissed.

Occult expert. Prosecutors for the state used the “expert” testimony of Dr. Dale Griffis to show the WM3 were conducting a satanic ritual. The retired police officer who started a second career as an occult expert stumbled on cross-examination when he admitted that he hadn’t taken a single class to receive his PhD from Columbia Pacific University. The university was sued by the state of California and shut down in 1999 for failure to meet minimum academic standards.

Plea, Alford. This plea allows a criminal defendant to plead guilty without admitting guilt and maintaining innocence while still acknowledging that prosecutors have enough “evidence” for a conviction. The plea gets its name from 1970’s North Carolina v. Alford and was proposed by defense attorneys for the WM3 as a way to finally get their clients out of prison. The State of Arkansas agreed to the deal to avoid being sued to the tune of several million dollars for its mishandling of the case and the years of their lives the WM3 lost because of it.

Questioning of Jessie Misskelley. When police picked him up for questioning, Jessie Misskelley told them he had been at a wrestling match in another town. After 12 hours of questioning, for which the police mysteriously only have 45 minutes of audiotape, Jessie offered police a confession that implicated the WM3. “I don’t like people keep on asking me questions when I done told them once,” Jessie said in a recent GQ article. “That’s what they did, they just egged it on. And finally, I just told the cops, look, you know, I did it. I killed them and everything.” This was the all the police had linking Damien Echols and Jason Baldwin to the crime. Jessie Misskelley was convicted for the crimes at his separate trial, but then refused to repeat this confession during the Echols-Baldwin trial — despite being offered considerable time off his own sentence if he agreed.

Robin Hood Hills. This small patch of woods where the neighborhood children conjures innocence and play but sadly, this is where the victim’s bodies were found: naked, hogtied, and submerged in water.

Sentencing. All three defendants were found guilty for the murders of Christopher Byers, Stevie Branch, and Michael Moore. Jessie Misskelley was sentenced to life in prison plus forty years, Jason Baldwin to three consecutive life sentences, and Damien Echols was sentenced to death by lethal injection.

Trailer parks. At one time or another, each of the WM3, lived in or near the Lakeshore and Highland Trailer Parks in northeastern Arkansas. “We were nothing but poor trailer trash,” Damien Echols said of his upbringing while incarcerated. The community was poor and uneducated, and had it not been for the film that shocked its viewers and roused a grassroots protest, it is doubtful that Damien Echols would be alive today.

Unusual supporter. In the first two films, John Mark Byers seemed to be the likely murderer. He figures largely in all three installments, castigating the devilish nature of the WM3, despite mounting evidence of their innocence of the crime. He has since apologized and worked actively on their behalf.

Villains or victims? It’s still a split decision in West Memphis.

West of Memphis. The title of Peter Jackson’s spin on the case made its debut at the Sundance Film Festival last month and it isn’t shy about suggesting Terry Hobbs committed the murders.

Xmas 1993. In the first “Paradise Lost,” the parents of victim Christopher Byers visit his grave and put a small Christmas tree on his tombstone. As strange as Mr. Byers appears to be (you have to see the film to understand what I mean by this) I couldn’t help but grieve with the Byers, celebrating the first Christmas without their son.

Youth. A lot changes in 18 years, just ask the WM3. Damien Echols, reflecting on all his years in prison, said, “It’s odd now when they tell me things like, ‘you’ve got arthritis,’ or when I see my hairline’s receding and my hair’s thinning.” Three teenaged boys were tried as adults, and lost their youth inside maximum-security prisons… for crimes they did not commit.

Zero. Nothing in evidence points to the WM3 being involved with the 1993 murders. Nothing ever has.


Legal As She Is Spoke is an online project of the Program in Law and Journalism at New York Law School. Our site reports on the state of legal journalism and encourages conversation about the accuracy and felicity of reporting on law.

Michael Paul Williams: Virginia must let everyone know about wrongful convictions

The following opinion was published by the Richmond Times-Dispatch on February 7, 2012.

This situation calls for an intervention.

The Virginia Department of Forensic Science has been far too secretive about information that excludes at least 76 felons as the source of biological evidence in their cases. As of last month, 29 of the felons had not been notified that the new DNA reports existed.

Bennett S. Barbour learned only about two weeks ago that authorities — for 18 months — had a report excluding his DNA and identifying the DNA of a known offender in a 1978 rape. Officials said they could not find Barbour, even though he lives 5 miles from where he was arrested in rural Charles City County.

The post-conviction DNA project, paid for with state and federal funding, launched in 2005. It could be a groundbreaking effort to diagnose maladies in our criminal justice system. Instead, it's in danger of becoming a lost opportunity or a potential scandal.

The current notification process is inadequate. It has been shown that simply notifying law enforcement of DNA test results is insufficient. And the Department of Forensic Science is unwilling to share DNA test results with the public. This task must be placed in less-conflicted hands.

"The basic mistake in this situation is assuming that the goal of criminal justice is actually justice," said Kent Willis, executive director of the American Civil Liberties Union of Virginia.

"There is an inherent contradiction in expecting a state system designed, funded and rewarded for convicting criminals to aggressively pursue a course dedicated to proving the innocence of wrongly convicted persons."

One of Barbour's lawyers, Matthew Engle of the Innocence Project Clinic at the University of Virginia School of Law, decried the lack of sunlight in the process.

"We need to know what is the complete list of (DNA) exclusion, what's been done to notify people in those cases … and at this point nobody knows the answers to those questions but the Department of Forensic Science, and they're not telling," he said.

Steven D. Benjamin, a defense attorney and a member of the Virginia Board of Forensic Science, suggested the formation of a new state entity — "a separate independent body charged with the task of investigating any case where there is an indication that we may have gotten it wrong."

Benjamin, president-elect of the National Association of Criminal Defense Lawyers, also said the association would be willing to take on such an effort "in a heartbeat."

We should be offended that a taxpayer-supported department is sitting on public information and gravely concerned about the integrity of the criminal justice system. Each time an innocent person is convicted, a guilty person remains on the street to victimize others.

"It's like having a series of plane crashes and doing nothing to figure out why the plane fell out of the sky," Benjamin said. "It is irresponsible to not learn everything we possibly can from these tragic cases, so we can improve the system and make it work better."

Where wrongful convictions are concerned, the state cannot afford to sit on its mistakes.

Cynic, optimist examine Alvarez' new 'philosophy'

The following column by Eric Zorn was published in the Chicago Tribune on February 3, 2012.

What prompted Cook County State's Attorney Anita Alvarez to announce Thursday a "change in philosophy" and the formation of a special unit in her office to review claims of wrongful convictions?

The cynic wonders what took so long. Alvarez has been with the county prosecutor's office since 1986, during which time scores of old convictions have fallen apart, usually illustrating one or more of the many ways in which human error and human failings can pervert the administration of justice.

Witnesses lie, memories falter, experts blunder. Authorities connect phantom dots, jump to false conclusions and cling to decaying theories

Since Alvarez won the top job in 2008 more than a dozen such miscarriages have come to light, and her response has often been to obstruct and drag her feet, even though the mistakes identified were those of her predecessors.

The cynic notes that she's been under particular fire in the media lately for refusing to appoint a special prosecutor to re-examine the 2004 death of David Koschman of Mount Prospect. Koschman, 21, died from injuries he suffered in a drunken altercation with a group of men that included then Mayor Richard M. Daley's nephew, Richard J. “R.J.” Vanecko, then 29, and some suspect a cover up.

And the cynic observes that Alvarez is running for re-election this year, and voters will be impressed with such passages from her speech Thursday as

My job is not just about racking up convictions, it is about always seeking justice, even if that measure of justice means that we must acknowledge mistakes of the past.

The optimist says oh, come on. Alvarez has no serious opposition for re-election and, if anything, this more soft-nosed approach to prosecution signals political confidence that she can admit to past mistakes without seeming weak or losing the trust of her staff or the Democratic party.

The optimist says that this "change in philosophy" shows Alvarez growing in her job, acquiring the necessary humility to be a wise, not just a winning, prosecutor. And if this move just happens to burnish her credentials for higher office or a judgeship down the line, well, that seems fair.

The optimist knows that outsiders -- investigators, defense attorneys, agitators and journalists -- will still have to do the initial legwork to sound the alarm on behalf of those who make credible claims that they're victims of wrongful prosecutions. But the optimist believes that these outsiders in their search for truth will now find allies, not antagonists, in the state's attorney's office.

Is the cynic right? Or the optimist?

We'll know the answer if and when this new unit starts producing results -- taking initiative, finding new exculpatory evidence and reaching conclusions that embarrass others in the justice system.

"It's a step in the right direction," said David Protess, the former crusading Northwestern Univeristy journalism professor who now heads the Chicago Innocence Project and has clashed with Alvarez. "We should have a common interest in achieving justice in these cases."

But Protess and others who independently investigate allegations of wrongful convictions say the first test is whether Alvarez brings in an outsider to run the unit, or whether she simply staffs it with the old guard.

“We have absolutely no financial resources to create any new positions or hire any new employees from the outside in this area or any other given the budget cuts that have been imposed on this office,” said Alvarez’ spokeswoman Sally Daly when I asked her about this Friday. The six-person staff is “being assigned from within our office.”

So the jury remains out whether this is a change in philsophy for Alvarez or simply a change in public relations strategy.

See Jason Meisner's story Wrongful convictions spur State's Attorney Anita Alvarez to form review unit for controversial prosecution and, below, the full text of the press release based on Alvarez' remarks

STATE’S ATTORNEY ALVAREZ ANNOUNCES FORMATION OF FIRST-OF-ITS-KIND CONVICTION INTEGRITY UNIT IN THE COOK COUNTY STATE’S ATTORNEY’S OFFICE (Feb. 2, 2012)

The subject of wrongful conviction is challenging, but I feel strongly that it is an issue that we must deal with in an open and proactive manner. In my view, my job is not just about racking up convictions, it is about always seeking justice – even if that measure of justice means that we must acknowledge mistakes of the past.

One very important duty of my office is to handle and investigate post-conviction cases. Any time a defendant is convicted of a crime, they have a right to appeal that conviction, and in Illinois we have a statute that allows defendants the right to file post conviction petitions once they have exhausted all of their appellate rights in the state court system.

For many years the Cook County State’s Attorney’s Office has had a dedicated post conviction unit and a DNA unit in which we have attorneys who review and investigate these post conviction cases, many of which are brought to us by innocence projects or defense attorneys when there is a claim of wrongful conviction.

Despite inferences to the contrary, we always take open minded looks at these cases. Obviously, we do not always end up agreeing with those who file these petitions. But we often work together with innocence projects to thoroughly investigate claims of wrongful convictions to make sure that those in prison are there correctly. When we have determined that a convicted person was convicted wrongfully, we have corrected the mistake. When we have acquired evidence that developed in cases that are still pending, where that evidence calls in to question the guilt of the accused, we have moved quickly to dismiss charges.

Many of the older cases involve requests for new or updated DNA testing. Some of these cases do not involve DNA evidence, but rather some other form or claim of new evidence. These are extremely challenging cases for the most part because the crimes occurred fifteen or twenty years ago or even longer -- when DNA testing was just introduced or still very much evolving and when police investigations in murder cases were conducted differently than they are today.

In 2005 the Cook County State’s Attorney’s Office supported efforts in the state of Illinois to change our laws to mandate the recording of all homicide interrogations and confessions. This has been an extremely important reform that makes custodial questioning transparent. It also protects the rights of all of those involved, including the defendant as well as the police and the prosecutors conducting those interviews who may later be falsely accused of misconduct.

This important reform is working and it is working very well and when I became State’s Attorney I felt that we could do even more in this area. In 2009, we worked with the Chicago Police Department to expand the use of videotaping to include interviews with witnesses in murder cases. We started this as a pilot program but we have now expanded its availability to include all homicide cases that occur in the city of Chicago. This is also proving to be an exceptional advancement for the integrity of homicide cases because it helps to capture and preserve the final statements of our witnesses and enhance the strength of our cases as they move to trial.

But I still believe that there is more that we can do in this area and as a prosecutor I have a legal, ethical and moral obligation to do so. Today I am announcing the creation of a Conviction Integrity Unit within the State’s Attorney’s Office that will bring a new emphasis and a new focus on our review of cases involving questionable convictions. This unit will be staffed with three assistant state’s attorneys, two dedicated investigators and one victim witness specialist.

The creation of this new unit marks a shift in philosophy in which we intend to increase our focus and our openness about these cases. It will also allow us to formalize protocols and procedures and to be much more proactive in our review of these cases.

The unit will internally review post-conviction cases that are brought to our attention, and we will pay particular attention to the types of cases that have led to wrongful or questionable convictions such as cases involving single eyewitnesses. Or, cases involving confessions with little or no supporting evidence, particularly those involving juvenile defendants or defendants with mental health issues. We will also examine cases where physical evidence was not examined fully.

Moving forward, a function of the conviction integrity unit will also be to evaluate these cases and identify any problems or patterns so that we can use this information in lessons for future training for assistant state’s attorneys.

With the creation of this new unit I think that my office is demonstrating our commitment and our duty to bringing our very best efforts to ensure that only guilty people are convicted here in Cook County. And if we have any reason to believe that we have prosecuted or are prosecuting someone who is actually innocent, we will continue to take immediate steps to investigate the matter fully to see that justice is served. I remain committed to these values and I look forward to our work in this area in the future.