Low payouts after exoneration

The following Associated Press report was published by the Telegraph-Herald (Dubuque, Iowa/Platteville, Wisconsin) on February 4, 2013.

An innocent Texas man was convicted of rape and robbery and served 30 years in prison before his conviction was overturned. The state paid him $2.4 million in compensation, plus $13,000 per month.

Five years later, this time in Wisconsin, another innocent man was convicted of homicide. He served 23 years in prison before he was exonerated by DNA tests. But a Wisconsin claims board awarded him just $25,000, the maximum allowed under state law.

The compensation gap highlights the disparity between how different states help the wrongfully convicted get a fresh start. Texas, Tennessee and Florida offer million-dollar payouts, while others limit payouts to a mere $25,000 or less. And others offer no compensation at all. Activists who fight for the wrongfully convicted, as well as the innocent people who have received payouts, say it's time for lawmakers across the nation to acknowledge their obligations to innocent convicts by awarding them enough money to help them regain their lost lives.

Robert Lee Stinson was 21 when he was convicted in the 1984 slaying of a Milwaukee woman whose nearly naked body was found bloody and beaten in an alley near her home. He was arrested the next day because police said he couldn't adequately explain his whereabouts at the time of the crime.

At trial, a forensic dentist inexplicably determined that Stinson's bite matched those on the victim. The testimony ignored the fact that Stinson was missing a tooth where the bite marks indicated a tooth should have been, and he had an intact one where the perpetrator didn't.

Stinson served 23 years of a life sentence before his conviction was overturned. He asked the state claims board for $115,000, or $5,000 for every year behind bars. Wisconsin law allows for a maximum of $5,000 per year up to $25,000, although the board can ask the Legislature for more.

The board awarded the full $25,000 and recommended that state lawmakers give him the other $90,000.

"That's not nearly enough to compensate me for spending 23 years in prison," Stinson, 48, said at the time. "But it will really help me purchase a vehicle and pay for tuition."

A Democratic lawmaker proposed a measure last year to give him the extra money, but it went nowhere in the Legislature's budget committee.

Other Wisconsin cases also have raised eyebrows. In one case, another Milwaukee man wrongfully convicted of homicide before being cleared by DNA testing also got $25,000 for his six years in prison.

While $25,000 might not sound like much, 23 states don't even offer that. They have no statutes regarding compensating the wrongly convicted, according to an analysis by the National Conference of State Legislatures.

In those cases, exonerated people can petition for individual relief, but they shouldn't expect much, said Stephen Saloom, the policy director for the New York-based Innocence Project. Saloom said he would like to see every state match the federal policy: up to $50,000 for each year of incarceration, plus another $50,000 for each year on death row.

Why Police Lie Under Oath

The following opinion by Michelle Alexander was published by the New York Times on February 2, 2013.

THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”

The New York City Police Department is not exempt from this critique. In 2011, hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units. “I thought I was not naïve,” he said when announcing a guilty verdict involving a police detective who had planted crack cocaine on a pair of suspects. “But even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

Remarkably, New York City officers have been found to engage in patterns of deceit in cases involving charges as minor as trespass. In September it was reported that the Bronx district attorney’s office was so alarmed by police lying that it decided to stop prosecuting people who were stopped and arrested for trespassing at public housing projects, unless prosecutors first interviewed the arresting officer to ensure the arrest was actually warranted. Jeannette Rucker, the chief of arraignments for the Bronx district attorney, explained in a letter that it had become apparent that the police were arresting people even when there was convincing evidence that they were innocent. To justify the arrests, Ms. Rucker claimed, police officers provided false written statements, and in depositions, the arresting officers gave false testimony.

Mr. Keane, in his Chronicle article, offered two major reasons the police lie so much. First, because they can. Police officers “know that in a swearing match between a drug defendant and a police officer, the judge always rules in favor of the officer.” At worst, the case will be dismissed, but the officer is free to continue business as usual. Second, criminal defendants are typically poor and uneducated, often belong to a racial minority, and often have a criminal record. “Police know that no one cares about these people,” Mr. Keane explained.

All true, but there is more to the story than that.

Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence. Law enforcement has increasingly become a numbers game. And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in.

THE pressure to boost arrest numbers is not limited to drug law enforcement. Even where no clear financial incentives exist, the “get tough” movement has warped police culture to such a degree that police chiefs and individual officers feel pressured to meet stop-and-frisk or arrest quotas in order to prove their “productivity.”

For the record, the New York City police commissioner, Raymond W. Kelly, denies that his department has arrest quotas. Such denials are mandatory, given that quotas are illegal under state law. But as the Urban Justice Center’s Police Reform Organizing Project has documented, numerous officers have contradicted Mr. Kelly. In 2010, a New York City police officer named Adil Polanco told a local ABC News reporter that “our primary job is not to help anybody, our primary job is not to assist anybody, our primary job is to get those numbers and come back with them.” He continued: “At the end of the night you have to come back with something. You have to write somebody, you have to arrest somebody, even if the crime is not committed, the number’s there. So our choice is to come up with the number.”

Exposing police lying is difficult largely because it is rare for the police to admit their own lies or to acknowledge the lies of other officers. This reluctance derives partly from the code of silence that governs police practice and from the ways in which the system of mass incarceration is structured to reward dishonesty. But it’s also because police officers are human.

Research shows that ordinary human beings lie a lot — multiple times a day — even when there’s no clear benefit to lying. Generally, humans lie about relatively minor things like “I lost your phone number; that’s why I didn’t call” or “No, really, you don’t look fat.” But humans can also be persuaded to lie about far more important matters, especially if the lie will enhance or protect their reputation or standing in a group.

The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.

And, no, I’m not crazy for thinking so.

Michelle Alexander is the author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”

Exonerees: The numbers are small, but the toll is immense — and growing

The following opinion by Tony Freemantle was published by the Houston Chronicle on February 1, 2013.

If it could happen to Michael Morton, it could happen to anyone.

With no physical evidence linking Morton to the crime and only a wildly implausible hypothesis for why he committed it, the district attorney of tough-on-crime Williamson County convinced a jury in February 1987 that Morton had bludgeoned his young wife to death in their suburban Austin home.

He was sentenced to life in prison and served nearly 25 years before he managed to prove he didn’t do it. Relative to the millions serving time in U.S. prisons, the number of people exonerated for crimes they did not commit is small. But it continues to grow. Most troubling is that this relatively small number of exonerations points to a potentially huge unseen number of people who have been wrongfully convicted.

False convictions occur for a number of reasons: Victims identify the wrong person; prosecutors withhold exculpatory evidence from the accused; false or misleading forensic evidence points to the wrong person; defendants receive inadequate legal representation; witnesses perjure themselves.

In May, the National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, released its first report analyzing 873 exonerations between January 1989 and February 2012. (Since then, the number of identified exonerations in the registry has grown to 1,050, and more are added almost daily.)

In the 873 cases that were studied, the registry found the most common reasons for wrongful conviction were perjuryor false accusation (51 percent), mistaken witness identification (43 percent) and official misconduct (42 percent).

Ninety-three percent of those exonerated were men, 50 percent were black, 38 percent were white and 11 percent were Hispanic. DNA evidence helped clear 37 percent of them.

In total they spent more than 10,000 years in prison for crimes they did not commit.

While stark and sobering in and of themselves, the statistics don’t begin to describe the human tragedy of wrongful convictions.

Michael Morton was about as “Average Joe” as you can get. He and his wife Christine owned a house in a suburban subdivision in northwest Austin. He worked as the toiletries and housewares manager at a Safeway; she worked as a manager at Allstate; together they cared for their only son, Eric.

On the morning of Aug. 13, 1986, the day after his 32nd birthday, Morton woke before dawn and left for work. When he returned that afternoon, his house was wrapped in crime scene tape, Eric was with a neighbor, Christine lay dead on their water bed, and the sheriff of Williamson County already was convinced that Morton beat his wife to death in a rage because she would not have sex with him.

A jury found him guilty and sentenced him to life. He was released on Oct. 4, 2011, only after a protracted battle by the Innocence Project and Houston attorney John Raley to have a bloody bandana found near the crime scene tested for DNA.

Christine’s DNA was found on the bandana; Michael’s was not. But there was the DNA of another man, a felon named Mark Alan Norwood. A search of the FBI’s DNA database linked Norwood to another, similar murder in Austin of Debra Baker in January 1988.

Norwood is about to go to trial, and a special court of inquiry is investigating whether Ken Anderson, the Williamson County district attorney who prosecuted Morton and who is now a state district judge, committed a crime by withholding evidence from Morton’s attorneys.

Like many exonerated convicts, Morton displays no bitterness or anger at what happened to him. Instead he has set about repairing the relationship with his son and is working with state lawmakers to make sure that what happened to him does not happen to anyone else.

And then, he says, he’ll buy a place “out West,” and listen to the solitude.

The ripples of tragedy spread in widening, concentric circles from the center of a wrongful conviction.

The stories of each of the 20 men and women in these pages, are, like DNA, uniquely their own. But the one thing they have in common is that their lives and the lives of their families, the jurors who convicted them, the judges who presided over their conviction, and the witnesses or victims who got it wrong, were irrevocably altered.

Michele Mallin was a 24-year-old student at Texas Tech in Lubbock in March 1985 when she was abducted at knifepoint by a black man wearing a yellow shirt and sandals and raped in a field outside of town.

Police showed her six pictures to see if she could identify her attacker — five photos in black and white of men in profile, and one color Polaroid of Timothy Cole, a black, 26-year-old Army veteran and business student. “That’s him,” she said.

She was wrong. Cole was convicted and sentenced to 25 years in prison, where he died in 1999 unaware that another man had confessed to Mallin’s rape and that his confessions had been ignored. Posthumous DNA testing by the Innocence project cleared Cole, and he was granted a full pardon on March 1, 2010.

Mallin now devotes her time to writing and raising awareness about mistaken witness identification.

Cole’s case prompted the state to enact legislation in his name to increase the wrongful imprisonment compensation to $80,000 for each year of confinement. It was a big step; Texas is one of only 27 states that has such a law. To date, Texas has paid 87 exonerees a total of more than $58 million.

But to be eligible for compensation, a person must be officially found innocent.

Some, like George Rodriguez, who was wrongfully convicted of the sexual assault of a child, instead decided to sue the City of Houston over the botched forensic evidence that helped convict him. The city fought back and seven years after his exoneration, during which time he had to borrow money from his attorneys to buy a couch, he finally settled the case for $3.1 million.

Others, like Joyce Ann Brown of Dallas, haven’t received a dime. Brown, wrongfully convicted of the robbery and murder of a fur store owner, served nine years of a life sentence before being freed.

Compensation, however, does little to repair the damage done by sending an innocent person to jail.

James Curtis Giles was sentenced to 30 years for the gang rape of a pregnant 18-year-old woman in Dallas in 1983. He was paroled 10 years later and placed on probation for 20 years, during which he had to register as a sex offender. In 2007, post-conviction DNA testing cleared him.

Giles received nearly $1.2 million in compensation from the state, but it did little to help him heal from the trauma of 10 years in prison and 14 as a pariah on the outside.

“A billion dollars can’t bring those 120 months back that I’ve been in prison,” said Giles after his exoneration. “Every day I got up knowing I had to register as a sex offender once a year, knowing that a sex offender was the scum of the earth. They watch you, look at you, even if you didn’t do it.”

Better Late Than Never

The following editorial was published by the Dallas News on January 9, 2013.

Breakthroughs take time in criminal justice reform, and they get messy, but they are no less impressive when they happen.

Just this week in Houston, the state fire marshal’s office sat down with outside experts to pore over a short list of old arson cases suspected of using junk science to put someone behind bars. One of those suspect cases, from the Central Texas town of Hewitt, is on a separate review track in McLennan County. The district attorney there has cited “serious and complex issues” involving arson forensics in the murder conviction of Ed Graf, who will get a hearing Friday on a writ to reopen his 26-year-old case.

All this traces back to the noisy early days of the Texas Forensic Science Commission and its first case, the arson-murder conviction of Cameron Todd Willingham, executed in 2004. Critics were prone to calling reformers out of bounds, grandstanders who were out to undermine Texans’ support of the death penalty.

Those critics need to take a look today. The fight was a righteous one and has yielded a kind of systematic re-examination of the science in arson convictions that is unprecedented in the nation.

As a fledgling agency, the Forensic Science Commission took heat for stretching its authority in 2008 and accepting the Willingham case for review. This newspaper is glad it did, even though the law creating the commission didn’t expressly list arson as a forensic science under its purview.

The commission’s final report — while not commenting on Willingham’s guilt or innocence — said prosecutors relied on arson investigators who had a poor understanding of fire science and learned their craft when there were no uniform standards.

Those very themes surfaced in the Graf case, in reports compiled by experts retained by the Innocence Project of Texas. Prosecutors put Graf away for life after his two stepsons burned to death in a frame storage shed behind his house.

Yet the state arson investigator had little grasp of how fire burns and employed “old wives’ tales” in reaching conclusions, one expert wrote. Worse, there was no “crime scene” to examine, since the burned-up shed had been knocked down by volunteer firefighters and hauled off to a dump.

Graf, at the very least, deserves another day in court.

That’s consistent with one major theme in the Forensic Science Commission’s final Willingham report. It stressed the “duty to correct” when investigators become aware of advances in fire science that could reverse a criminal conviction.

State Fire Marshal Chris Connealy is taking that seriously and breaking ground with the panel of experts for re-evaluation of old cases. He’s working closely with lawyers from the Innocence Project of Texas, a group sometimes marginalized by law enforcement types.

Breakthroughs come even with odd bedfellows, and that’s progress, too, if justice is the goal.

Alvarez lacks insight into wrongful convictions

The following opinion by Peter Neufeld, co-director of The Innocence Project, was published by the Chicago Tribune on December 21, 2012.


Cook County State's Attorney Anita Alvarez claimed that "60 Minutes" misrepresented her in an episode about the wrongful convictions of nine juveniles who falsely confessed. It's important to remember the two cases involving these teenagers that motivated "60 Minutes" to report on the miscarriages of justice in Cook County.

A year after the 1991 rape and murder of a 14-year-old girl from Dixmoor, police, lacking any physical evidence or eyewitness accounts, aggressively interrogated five teenagers until three confessed. Two later pleaded guilty when told that their sentences would be decades shorter if they cooperated. Not surprisingly, in nearly 10 percent of the nation's 301 DNA exonerations, innocent men pleaded guilty to crimes they did not commit to reduce their sentences. According to the confessions, all five teenage boys had unprotected intercourse with the girl, yet astonishingly, none of their DNA was found in her. Instead, the semen recovered from the victim matched a 35-year-old convicted sex offender who had recently been paroled into her community and had no known relationship with her. Prosecutors have not charged the man.

In 1994, a prostitute was raped and strangled in Englewood. The investigation had grown cold until police picked up a boy who may have been selling marijuana. Police interrogated him for two days before he supposedly implicated four teenagers, who were convicted after each falsely confessed to the crime. Again, there were no eyewitnesses and no physical evidence connecting them to the deceased. According to the four confessions, each of the boys had unprotected intercourse with the victim, yet just as in Dixmoor, none of their DNA was present. Instead the DNA profile of the semen matched Johnny Douglas.

On "60 Minutes," Alvarez acknowledges that Douglas, now deceased, was a "bad guy" but claims his background doesn't prove he committed the Englewood crime. Douglas had been convicted of murdering another prostitute by strangulation and assaulting others by attempted strangulation. Indeed, Douglas was tried in a second prostitute murder case in which prosecutors introduced evidence that he was nicknamed "Maniac" and had a modus operandi of strangling prostitutes. A police report from the murder places Douglas at the crime scene and, when interviewed by police, claimed falsely that he "knew nothing." His semen was inside her, yet he claimed to know nothing?

After the "60 Minutes" piece aired, Alvarez criticized the TV news magazine for its portrayal of her in a public letter and in an op-ed in this paper. Incredibly, she never acknowledged in either communication that the young men were innocent and never apologized for the catastrophic loss that they endured of the best years of their lives. Instead, she vehemently fought to maintain the convictions — in Dixmoor waiting eight months to agree to a dismissal, and in Englewood opposing the court vacating the convictions to the bitter end; even after she lost, she persisted in opposing the young men's efforts to secure certificates of innocence. They had to spend needless extra months confined for crimes they didn't commit.

Through her actions, it has become abundantly clear that Alvarez lacks insight into the causes of wrongful conviction, which, incidentally, doesn't bode well for her newly formed conviction integrity unit. In almost 30 percent of the DNA exonerations, false confessions were the primary cause. Juveniles are particularly vulnerable. While the public may have a hard time believing someone could falsely confess, law enforcement has long known that it happens frequently and is trained to look for other evidence to corroborate a confession.

The public should be equally concerned with Alvarez's inability to admit that mistakes were made and that misconduct cannot be ruled out.

The first step to remediating mistakes and misconduct is to admit errors were made. The admission of error is fundamental whether a shuttle crashes, a hospital mishandles a patient in the operating room or an innocent man languishes in prison for a crime he did not commit. If you can't admit error, there is no hope for meaningful improvement or change. The most serious aspect of the way in which Alvarez handled these cases is her utter unwillingness to admit that the convictions of nine teenage boys were tragic failures of the criminal justice system.

Peter Neufeld is co-director of the Innocence Project, which uses DNA evidence to exonerate people who have been wrongly convicted and advocates for reforms to prevent further injustices. The project represented two of the young men in the discussed cases above.

Exoneration but no justice for wrongly imprisoned man in Va.

The following editorial was published by the Washington Post on November 29, 2012.


ONCE THE PAPERWORK reached his desk, Virginia Gov. Robert F. McDonnell (R) needed just one day to grant a conditional pardon to Johnathan Montgomery, the young man who served four years of a seven-year sentence for a “crime” apparently invented from whole cloth by his accuser. Mr. Montgomery, 26, was released Nov. 20, just in time for Thanksgiving, after receiving a phone call from the governor himself; his accuser, who recanted her claims, has been charged with perjury.

Mr. McDonnell was right to move swiftly. Unfortunately, there is little likelihood that Virginia will act with similar speed to compensate Mr. Montgomery for what the governor rightly called “a travesty of justice.” Even if the courts officially exonerate Mr. Montgomery — a slow process at best — he is eligible to receive shockingly little money, and even less help, from the state whose criminal justice system dealt him such an injustice.

Unlike about half the states, Virginia does have legal guidelines for compensating people who have been wrongly convicted. They are entitled to an amount equal to 90 percent of the state’s individual per-capita income for each year they spent behind bars, up to an arbitrary maximum of 20 years. If the state Court of Appeals rules that Mr. Montgomery is innocent — and it is hard to imagine why it would not — he would be entitled to roughly $160,000.

That’s a paltry amount for a young man who has lost not just four years of income but also four years of vocational or professional development, not to mention the physical, psychological and emotional toll he suffered in confinement. While Mr. Montgomery’s peers were starting their careers, learning skills and courting and marrying, he was sitting behind bars.

Virginia takes no account of the non-economic suffering of those who are wrongly convicted. Unlike prisoners who are paroled, who might at least receive some career counseling, Mr. Montgomery is not entitled to any state-sponsored help after having been denied his liberty for four years.

What’s more, the financial compensation is not even automatic. Even if the courts declare his innocence, Mr. Montgomery would receive no monetary compensation until a bill authorizing payment is enacted by the General Assembly. That is unlikely to happen before 2014.

At that point, Mr. Montgomery would likely receive an initial lump payment of only 20 percent of the amount to which he is entitled, with the balance to be paid as an annuity after that. At a guess, he might get a monthly check for $1,000 over the course of 15 or 20 years. That is considerably less than the U.S. government pays to people wrongly convicted in federal courts.

In issuing his pardon, the governor sounded suitably outraged and sympathetic. But if the state truly wants to demonstrate remorse and make up for the wrong it has done to Mr. Montgomery, it should rewrite its laws to provide for treatment and counseling, as well as more money.

Jonathan Kay: When accused sex-criminals are exonerated, the media too often goes silent

The following opinion by Jonathan Kay was published by the National Post (Canada) on November 12, 2012.

Last month, The New York Times ran a headline that sums up the frustration of those who are victimized by trumped up criminal charges: “An arrest in the news, an exoneration in silence.”

The article focused on Travis Tremell, a Brooklyn man who was accused of killing a 52-year-old man named Early Williams in a botched 2006 armed robbery. Four months after his arrest, the charges were dismissed. Prosecutors admitted that Tremell had a solid alibi.

Yet on Google, Tremell remains a killer. Or at least he did until the Times’ “Crime Scene” correspondent, Michael Wilson, published the above-described article on October 19. The story leapfrogged straight to the top of the search results — which formerly were dominated by headlines such as “Man Charged in Killing After Brooklyn Robbery.”

Tremell was one of the lucky ones: Thanks to a random meeting with a Times photographer, a prominent columnist ended up publishing an article setting the record straight. But in the vast majority of cases, that never happens. Unless you’re someone on the scale of Lord McAlpine — the retired British politician falsely accused of pedophilic crimes in recent weeks — there’s no systematic way to clear one’s name on the Internet, or even in the same mass media outlets that originally aired the accusations against you.

Try getting a job when the first Google hit that lands on your name tells the world you’re a criminal — even if you’re not. It’s kafkaesque.

“Why was an article about [Tremell's] exoneration never written [before Oct. 19]?” Wilson asks. “Pick a reason. There is no indication it was announced by the prosecution or the police, and neither Mr. Tremell nor his family or lawyer called reporters with the news. The homicide was not the sort of high-profile case that led newspapers to routinely update its status. It went unnoticed.”

This is a problem I’ve been thinking about since June, when I published a column detailing the experiences of those falsely accused of sex crimes. As I noted at the time, “police have a vested interest in making arrests, laying charges, and putting out press releases — even in weak cases that just ruin lives and clog up the courts.”

We lazy journalists often act as unwitting collaborators in this cruel drama. In our reporting, we will cite police accusations when an alleged criminal is arrested — and then ignore the story thereafter, even when the original accusations are shown to be bogus.

A fellow I know who was falsely accused of underage sex crimes has spent hundreds of thousands of dollars trying to scrub lies about him from the internet. But it’s insanely difficult: One Canadian newspaper he contacted refused to take down its original story about his arrest — which still pops up in the first few Google hits on his name — because it was nominally based on a (completely discredited) police press release, and so does not constitute libel.

And then there are the American rumor- and comment-based aggregators, such as Topix.com, which don’t even pretend to engage in responsible reporting, and thrive on crowdsourced character assassination. Indeed, a whole shakedown industry has evolved in this area. A site such as mugshots.com will publish public-domain mug shots of people who are arrested. And then another site, unpublishmugshots.com, will charge you $399 to get the image removed.

All told, you can easily spend hundreds of thousands of dollars on lawyers and IT specialists to help you scrub the internet of false accusations — and you still won’t get everything. The most maddening aspect of all is that there are no consequences for the police and prosecutors who casually — or sometimes recklessly — got the ball rolling in the first instance by distorting the truth, or by giving credence to clearly made up accusations.

In some cases, police continue harassing falsely accused citizens, even after the cases against them fall apart.

Consider Ray Collingham, the Toronto-area gym coach who was arrested in 2007 on the basis of emails that obviously had been fabricated by the mother of the boy whom Colligham had been accused of abusing. Collingham is fighting back with a $5-million lawsuit against the Peterborough Lakefield Police Services Board.

“Since my civil lawsuit, I have had the police directly call my landlord where I am trying to start a personal training gym, to ‘inform’ him of what I was charged with,” Collingham tells me. “They have also called other personal and martial art gyms that I network with about my charges. Some will not associate with me now because of this.”

In some cases, employers can compound the injustice of false accusations by firing or disciplining an employee before he has had his day in court.

Jean Lauzon, for instance, was an Ottawa paramedic until 2009, when he was falsely accused of sexually assaulting a mentally unbalanced patient in the course of treatment. While on bail, he wasn’t permitted to work, and received no paycheque from his employer. This trained medical professional is paying his massive legal expenses with the proceeds from a temporary job as a line cook at Cora’s Restaurant.

Even after Mr. Lauzon’s acquittal, his employer launched its own “investigation,” which is still in limbo to this day. More than three years after being falsely accused, Mr. Lauzon is still not back to work as a paramedic.

All medical professionals are at risk for this type of false accusation. “Nursing — and medicine [in general] — require close contact with patients,” one Toronto ER doctor told me, after relating the story of a colleague who’d been led away in handcuffs after being accused by an intoxicated female patient who’d been brought in at 4am. “Male nurses are expected to perform duties similar to their female colleagues that are sensitive, such as performing EKG’s (chest must be exposed), auscultating a chest (stethoscope over a breast), inserting catheters, etc. Also, the nature of the ER is that we deal with a high percentage of altered patients (due to intoxication, drugs or their medical condition). Someone that is altered is more likely to misinterpret events as abuse, or have incorrect memories of events.”

“My male nursing colleagues are afraid that they no longer can do their jobs without a female chaperone,” he adds. “I have already had a conversation with my wife, that in my career I will probably be charged with sexual assault due to the nature of my job. I have already pre-empted this by discussing potential situations with lawyers so that I may be prepared when it happens.”

This doctor is one of the lucky ones: He can talk about the issue with his wife in a candid way. Unfortunately, many false assault accusations occur in the aftermath of broken relationships, when divorce lawyers encourage women to fabricate lurid abuse claims. One father who emailed me from B.C. described how this sort of invented claim in family court actually led to criminal charges. Those charges were dismissed, but not before his career was destroyed. “The litigation on multiple fronts was financially and emotionally devastating, causing me to fall into depression and eventually declare bankruptcy,” he told me. “I am not aware of any legal remedy available to fathers falsely accused of assault or sexual abuse of their children during divorce proceedings.”

The problem is one of incentives. The system provides plenty of encouragement to police and ex-spouses to run up false claims against men — just as “zero-tolerance” workplace policies encourage bosses to fire these defendants before they’ve had their day in court. Yet when exoneration comes, suddenly everyone loses interest, and the falsely accused victim is left to rebuild his life as a fast-food worker. Sound like justice?

I can’t change the system. But I can provide a small media outlet to those men — like Travis Tremell and Ray Collingham — who have been acquitted or had their cases formally dismissed, and want the Google record to reflect the resolution of their case in a factual way. If you are in this situation, email me your details, along with corroborating documents, and I will do what I can to help.

National Post
jkay@nationalpost.com

Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus

The following commentary by Harvey Silvergate was published by Forbes on October 18, 2012.


Inherent in any human endeavor is the possibility of error. In few arenas is this axiom more consequential—or more steadfastly ignored—than in the criminal justice system.

The week of September 17th, the Wilmington, NC, federal district court held a long-awaited evidentiary hearing in the case of Jeffrey MacDonald. This murder case, which occasionally has dominated (and of late has returned to) the headlines, offers a chilling reminder of the importance of accuracy over the finality of criminal verdicts when weighing innocence claims of the convicted. In seeking to balance the supposed necessity of finality against the obvious need to protect the innocent from all-too-frequent errors, the case probes the viability and scope of the constitutionally-protected writ of habeas corpus, the procedural device for reviewing otherwise final judgments based on newly-discovered evidence.

This ancient legal right is deemed by scholars to be the single most important right inherited from the ancient Anglo-Saxon legal system and incorporated into the Constitution. Yet controversy has long swirled around habeas corpus on the question of whether it is aimed at assuring only that certain procedures be followed, or whether a case can be revisited, years or even decades later, if evidence arises that a convict turns out to be demonstrably innocent.

The MacDonald case puts front-and-center the pivotal question of whether the writ of habeas corpus should be available to the convicted, regardless of how many times a defendant has unsuccessfully attacked his conviction in the past. But this gets us ahead of the remarkable story of this case.

In 1970, the two young daughters and pregnant wife of Dr. Jeffrey R. MacDonald, an army physician stationed at Fort Bragg, North Carolina, were murdered. Such brutal slayings pock-marked an era of unparalleled tumult—a half year after the Manson Family murders, and two months after Altamont, at which four concert-goers died, the MacDonald murders underscored innocence lost.

It is perhaps for this reason that fascination surrounded the case. It didn’t hurt that the prime suspect—Jeffrey MacDonald himself—was a Princeton-educated Green Beret. Though badly injured, he survived. Could he have perpetrated the killings, and orchestrated an elaborate cover-up in which he even stabbed himself within less than an inch of his heart?

MacDonald told investigators that four drugged-out intruders, three men and one woman, invaded his home, beat him unconscious, and murdered his family. To this day, he has stuck unwaveringly to this account.

Early on, MacDonald’s version of events was lent credence when an Army judicial officer found no credible evidence to bring formal charges against him. Though tasked only with determining whether cause existed to bring the case to a formal court martial, the officer went one step further: he declared the allegations “not true” and recommended that civilian authorities investigate Helena Stoeckley, a possible suspect who fit MacDonald’s description of the female intruder. Importantly, immediately after MacDonald, seriously injured and woozy, phoned for emergency assistance, a military policeman speeding to the scene spotted a woman with long blond hair and a distinctive floppy hat standing in the rain on a street corner near the MacDonald home. The MP’s description of this woman very much lined up with MacDonald’s description of the female intruder, even though neither MacDonald nor the MP had heard the other’s description of her.

After MacDonald left the Army, U.S. Department of Justice prosecutors picked up the case, ignoring the Army investigator’s advice and instead focusing on MacDonald as their prime suspect. Nearly five years after his family was killed, MacDonald was indicted for murder. After a lengthy trial, he was convicted in July 1979 and sentenced to consecutive life sentences. Over the years the case became notorious for the mountain of evidence that the jurors did not hear.

It wasn’t long thereafter that a best-selling book by author Joe McGinniss, Fatal Vision, and a made-for-TV movie by the same name cemented MacDonald’s guilt in the public and judicial eye. His repeated attempts to have courts look anew at his conviction were, until recently, for naught.

This has been due to the doctrine of “finality” of criminal judgments. In the early 1990s, efforts to end post-verdict attacks on findings of guilt blossomed in all three branches of the federal government. In 1991, just days before my colleagues and I were to file a brief seeking a new trial for MacDonald, the Supreme Court, in McCleskey v. Zant, raised the bar for habeas corpus petitions. Despite accumulating evidence implicating Stoeckley and exonerating MacDonald, our petition, a federal district court ruled in 1991, did not overcome the heavy burden that suddenly favored finality.

Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, which further raised the bar for repetitive habeas claims, and so the federal courts again rebuffed MacDonald’s plea for review in 1997. The Court of Appeals in Richmond warned MacDonald’s lawyers (including me) to exercise caution before undertaking to file another petition.

MacDonald and his lawyers nonetheless persisted. Yet even as new evidence questioning his guilt mounted, lower courts were allowed to reject his requests for a new trial by relying on technicalities and viewing evidence in a piecemeal fashion. Finally, on April 19, 2011, the Court of Appeals for the Fourth Circuit ordered the lower court to sweep aside the technical barriers and, at long last, execute a “fresh analysis” of the “evidence as a whole”— hence the evidentiary hearing that took place last month in Wilmington.  There has been much speculation over what prompted the Fourth Circuit court to take the dramatic step of ordering the lower court to review MacDonald’s conviction. My own view is that the enormous accretion of evidence of innocence finally overcame the notoriously conservative court’s reluctance to disturb a conviction that for so long has been deemed “final.”

The combination of two factors in the MacDonald case, not likely replicated in others, accounts for this remarkable turn-around. First, court-ordered DNA tests of crime-scene evidence revealed specimens found on the wife and one daughter that matched no one in the MacDonald family, thus pointing to unknown outside assailants. Second, a retired deputy United States Marshal, diagnosed with terminal cancer, swore as he was dying that he witnessed one of the prosecutors threatening Helena Stoeckley at the time of the trial. She appeared prepared to testify that she was with three friends at the scene of the crime; after this prosecutorial intervention, she suddenly backed down and had amnesia.

Three decades and countless hearings after the guilty verdict, MacDonald finally won the right to present the full panoply of evidence supporting his innocence at the long-awaited hearing the week of September 17th. If, as some have predicted, the federal district court judge in Wilmington again rules against MacDonald, the case will be back in the hands of the same Court of Appeals that finally saw the light and ordered the hearings after decades of judicial dawdling.

The enormity of the injustice done to Jeffrey MacDonald, as well as the case’s catastrophic effects on the criminal justice system as a whole, can be ascertained from a perusal of Academy Award-winning filmmaker Errol Morris’ recently released book, A Wilderness of Error: the Trials of Jeffrey MacDonald. Morris succeeded decades ago in helping free wrongly convicted Randall Dale Adams from death row with his 1988 film “The Thin Blue Line.” Now with A Wilderness of Error, Morris has aggregated a gigantic mass of evidence powerfully refuting the myths and lies that have kept Jeffrey MacDonald behind bars for 33 years. Morris’ book almost certainly will get noticed by the appellate court judges who ordered last month’s evidentiary hearing on the basis of the evidence accumulated before the book’s publication. A massive piece of investigative journalism that demonstrates a convict’s innocence, and the unfairness of the trial that arrived at the wrong conclusion, never escapes notice by the judges in whose hands is placed the + Comment now
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Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, which further raised the bar for repetitive habeas claims, and so the federal courts again rebuffed MacDonald’s plea for review in 1997. The Court of Appeals in Richmond warned MacDonald’s lawyers (including me) to exercise caution before undertaking to file another petition.

MacDonald and his lawyers nonetheless persisted. Yet even as new evidence questioning his guilt mounted, lower courts were allowed to reject his requests for a new trial by relying on technicalities and viewing evidence in a piecemeal fashion. Finally, on April 19, 2011, the Court of Appeals for the Fourth Circuit ordered the lower court to sweep aside the technical barriers and, at long last, execute a “fresh analysis” of the “evidence as a whole”— hence the evidentiary hearing that took place last month in Wilmington.  There has been much speculation over what prompted the Fourth Circuit court to take the dramatic step of ordering the lower court to review MacDonald’s conviction. My own view is that the enormous accretion of evidence of innocence finally overcame the notoriously conservative court’s reluctance to disturb a conviction that for so long has been deemed “final.”

The combination of two factors in the MacDonald case, not likely replicated in others, accounts for this remarkable turn-around. First, court-ordered DNA tests of crime-scene evidence revealed specimens found on the wife and one daughter that matched no one in the MacDonald family, thus pointing to unknown outside assailants. Second, a retired deputy United States Marshal, diagnosed with terminal cancer, swore as he was dying that he witnessed one of the prosecutors threatening Helena Stoeckley at the time of the trial. She appeared prepared to testify that she was with three friends at the scene of the crime; after this prosecutorial intervention, she suddenly backed down and had amnesia.

Three decades and countless hearings after the guilty verdict, MacDonald finally won the right to present the full panoply of evidence supporting his innocence at the long-awaited hearing the week of September 17th. If, as some have predicted, the federal district court judge in Wilmington again rules against MacDonald, the case will be back in the hands of the same Court of Appeals that finally saw the light and ordered the hearings after decades of judicial dawdling.

The enormity of the injustice done to Jeffrey MacDonald, as well as the case’s catastrophic effects on the criminal justice system as a whole, can be ascertained from a perusal of Academy Award-winning filmmaker Errol Morris’ recently released book, A Wilderness of Error: the Trials of Jeffrey MacDonald. Morris succeeded decades ago in helping free wrongly convicted Randall Dale Adams from death row with his 1988 film “The Thin Blue Line.” Now with A Wilderness of Error, Morris has aggregated a gigantic mass of evidence powerfully refuting the myths and lies that have kept Jeffrey MacDonald behind bars for 33 years. Morris’ book almost certainly will get noticed by the appellate court judges who ordered last month’s evidentiary hearing on the basis of the evidence accumulated before the book’s publication. A massive piece of investigative journalism that demonstrates a convict’s innocence, and the unfairness of the trial that arrived at the wrong conclusion, never escapes notice by the judges in whose hands is placed the power to redeem both the system and the wrongly-convicted defendant’s life.

This case should force a re-examination of current habeas corpus law and its Byzantine procedural obstacles. Its fixing requires both legislative and judicial rethinking of the importance of juries and judges having access to the fullest array of available evidence. Currently, demonstration of “mere innocence” is not by itself deemed an adequate basis for release of a prisoner. Habeas corpus relief depends upon a combination of newly-discovered evidence plus a demonstration of innocence. And litigation over the meaning of “newly discovered” can itself take years and many trips up to appellate courts.

This notion should be condemned to the scrap heap of American judicial history. As University of Virginia Law Professor Brandon L. Garrett has written in his recent book, Convicting the Innocent, currently “the one claim that no convict can easily bring is a claim that he is innocent and should be freed for that reason alone.”

Garret’s work examines the common themes among the first 250 inmates that the Innocence Project, a nonprofit dedicated to exonerating the wrongfully convicted, has helped free to date, a development that owes its success in no small part to the advancement in DNA science. (The Innocence Project filed a friend-of-the-court brief supporting MacDonald.) Indeed, we’re living in an age of science and information, one that allows for the re-examination of verdicts often buried in history. But first the legal barriers to the presentation of facts—those most stubborn of things—must be removed. And when those facts add up to a picture of actual innocence, immediate release, rather than endless and obstructive procedural games, should be the result.

Miriam Elliott: Time to abolish the death penalty

The following opinion was published by the Gainesville (Florida) Sun on October 7, 2012.

Once again a death row inmate has been exonerated. This time it is Damon Thibodeaux of Louisiana, exonerated after 15 years on death row. He makes the 300th person proven innocent by DNA evidence. This is living proof that the death penalty risks lives.

Some are not so lucky as to have their innocence proven.After 20 years of fighting to prove his innocence, Troy Anthony Davis was executed, in Georgia, one year ago on Sept 21st, 2011. Troy Davis was convicted of murdering an off-duty police officer primarily on the testimony of 9 people. Over time, all but 2 recanted their testimony, some claiming police coercion. One of the 2 remaining was a potential suspect in the case. There was no physical evidence linking Troy to the murder.

These cases underscore the reasons why the death penalty should be abolished. 141 people have been exonerated from U.S. death rows since 1973; 27 in Florida; others may have been executed despite serious doubt about their guilt. There is no convincing evidence that the death penalty has a special deterrent effect and capital prosecutions come with huge financial costs, far higher than ordinary criminal justice cases. The cost of the death penalty diverts resources from more constructive solutions, such as support for law enforcement and crime prevention and services for murder victims’ families. We can have justice without the death penalty.

The reality is that good people make mistakes and therefore the justice system makes mistakes. Life in prison without the possibility of parole protects us and punishes killers, but leaves open the possibility of correcting a wrongful conviction.

Connecticut, in May, became the fifth state in five years to abandon the death penalty, and other states are lining up to follow suit. When will Florida?

It's time to end the death penalty once and for all. I am certainly frustrated and saddened every time I hear of an inmate being exonerated, whether they are on death row or in the general prison population. Their unnecessary years of incarceration are a tragedy. And with advances in DNA testing it is happening with far too much frequency. The impact on the innocent person and their family is horrific. And the real perpetrator goes unpunished.

I'm a member of Floridians for Alternatives to the Death Penalty (www.fadp.org) and I invite everyone to reflect on this issue and to join this movement. Any killing of an innocent life is an outrage and when it is at the hands of our government it is barbaric. Wrongful convictions are the tragic consequence of our desire for revenge instead of our seeking real justice. Florida is long overdue to reform it's justice system and to eliminate a costly policy that threatens innocent lives.

Miriam Welly Elliott, Co-Coordinator
Gainesville Citizens for Alternatives to the Death Penalty

Editorial: Disproving proven theories that led to injustice

The following editorial was published by the Chicago Sun-Times on September 1, 2012.


Too often, cutting-edge scientific theories send people to prison only to turn out to have more holes than Swiss cheese.

here was the medical theory — later discredited — that helped land about 30 adults from Bakersfield, Calif., in prison for sexually abusing children in the 1990s.

There were the arson theories that helped send Cameron Todd Willingham to a Texas execution chamber in 2004, only to be rejected later by other experts relying on advances in fire science.

There was the theory of identifiable unique shoe-wear patterns that helped send at least eight men to prison for life in the United States and Canada in the 1980s before scientists concluded the whole idea was fiction.

So when a case involving the theory of “shaken-baby syndrome” returns to the DuPage County courthouse this fall, the theory should be put under a microscope. Only proof that puts all doubt to rest will suffice.

A decade or so ago, many medical experts thought that a “triad” of symptoms in a dead infant — bleeding behind the retinas, brain swelling and bleeding on the brain surface — could be caused only by major trauma, such as a car wreck, or by violent shaking.

If those symptoms were found in a baby or young child who died — and no major trauma occurred — it followed that the baby died by violent shaking at the hands of a caregiver. No witness to the shaking was really necessary. Thousands of Americans have been sent to prison based on medical shaken-baby evidence.

But here’s where the doubt comes in. In the intervening years, some medical experts have traced the “triad” of symptoms to other causes. Even Norman Guthkelch, the Evanston pediatric neurosurgeon who was among the first to describe shaken-baby syndrome, has his doubts about how the diagnosis is used in court. Sometimes, he says, illness can cause the same symptoms.

Other scientists say the symptoms could even be caused by ordinary falls.

Shaken-baby medical evidence is at the heart of the case of Pamela Jacobazzi, 57, a former Bartlett day care owner who was convicted 13 years ago of murdering a 10-month-old boy. She was sentenced to 32 years.

Jacobazzi didn’t confess, and no witness saw her shaking the child. But at the time of her trial, symptoms of shaken-baby syndrome were enough.

DuPage County State’s Attorney Robert Berlin has said prosecutors are prepared to defend the conviction at a new evidentiary hearing scheduled for November.

At the hearing, new science that wasn’t available at the time of trial will be presented, as well as pediatric records that the defense will argue show the child’s symptoms could have been caused by disease.

“The general consensus is that the medical evidence used at her trial is no longer valid,” said Bill Clutter, of the Illinois Innocence Project, which is working on behalf of Jacobazzi.

And DuPage County lawyer Terry Ekl, who defended a similar shaken-baby case in DuPage County, said authorities should be wary of basing a case largely on shaken-baby syndrome: “Everybody wants to see someone be convicted when a baby dies.”

But, he said, “I think this is an area where there are innocent people in jail who have been convicted as a result of flawed theories.”

The medical evidence in this case must be weighed carefully. If any doubt remains, this conviction must be overturned.

The Skeptical Juror and the Texas Condemned Man

The Skeptical Juror and the Texas Condemned Man
by David Protess

Originally posted at HuffPost Chicago on August 14, 2012.

He is an unlikely watchdog over the criminal justice system, a 64-year-old former aerospace engineer from Southern California with no formal legal training. Yet his blog, The Skeptical Juror, has rapidly become must-reading for journalists, lawyers and lay persons interested in wrongful conviction cases that otherwise might escape attention.

Meet the man behind the blog, J. Bennett Allen, who stopped an injustice in its tracks as a juror in a 2007 child molestation trial. Allen, the foreperson, came to believe the defendant was innocent. The 11 other jurors thought otherwise. Using his training as an engineer, Allen skeptically questioned each piece of evidence until -- in a scene that reprised Henry Fonda's 12 Angry Men -- he converted all but two of the jurors. The judge declared a mistrial, the defendant was eventually freed and Allen morphed from a skeptical juror to The Skeptical Juror.

"It was eye-opening to see how easily an innocent man could have been convicted," Allen recently told me. The experience compelled him to begin scrutinizing court records in other cases, and his blog was born. Altogether, Allen has deconstructed the evidence in 97 criminal cases and written four books about wrongful convictions, including The Skeptical Juror and the Trial of Todd Cameron Willingham -- about a Texas man who was executed for a crime he likely did not commit.

Now he is faced with his "most daunting" case, one that involves another Texas death row prisoner. And he worries that his scientific assessment of the condemned man's innocence will fall on deaf ears.

Allen has cause for concern. The clock is ticking for Preston Hughes, 46, who won't turn 47 this Christmas Eve if Texas lawmen have their way. Hughes is scheduled for execution on Nov. 15 for the 1988 stabbing deaths of a teenage girl and her 3-year-old cousin in west Houston.

Allen acknowledges that the case against Hughes seems, at first blush, to be "insurmountable." He confessed his guilt not once, but twice. As troubling, the teenager uttered Hughes' name before she died, the authorities said. Physical evidence? A knife said to be the murder weapon was found in Hughes' apartment, not far from the crime scene, and there was evidence of blood on his clothing. And what were the teen's eyeglasses doing on Hughes' couch, discovered during a police search?

But Hughes has steadfastly professed his innocence since his arrest, and Allen decided to revisit the evidence, as he had as a juror. "I was curious," he said, "and a bit suspicious" because of irregularities by Houston's crime lab in previous cases. The more Allen looked, the more skeptical he became.

After poring over documents and interviewing experts, Allen became convinced that Hughes had been wrongfully convicted. Since March, he has posted 49 blogs that reveal the following:

•     The confessions. Allen discovered that the confessions were not only mutually inconsistent, but both were fundamentally at odds with the crime scene evidence. For example, Hughes confessed to wildly stabbing the victims, but in fact each was killed with two precisely inflicted wounds. The confessions were taken in the middle of the night and not videotaped.
•     The dying declaration. Reviewing the autopsy report of the teen's body, Allen noticed that her carotid artery and jugular vein had been severed. Consulting the scientific literature and a noted pathologist, he learned that the victim would have lost brain function within 90 seconds -- at most. Since the first cop did not arrive at the scene for at least 15 minutes, the victim could not possibly have identified Preston Hughes, or anyone else, as her assailant.
•     The murder weapon. Using 3-D and 2-D models, and the forensic evidence, Allen determined that the neck wounds on both victims were made with a double-edged blade approximately 5/8 inches wide. But Hughes' knife has a single-edge blade approximately 1 inch wide. Allen concluded that it was "impossible" for Hughes' knife to have been the murder weapon. As for the blood on the knife, the Houston crime lab was unable to link it to either victim.
•     The bloodied clothing. Reading the trial testimony revealed to Allen that no blood was actually found on Hughes' clothing. A crime lab official may have misled the jury into believing that a positive preliminary test for blood was proof of its presence. In fact, follow-up tests did not determine that spots on the clothing were human blood.
•     The eyeglasses. The authorities claimed that the teen victim's glasses were found on Hughes' couch during a search, but Allen checked the initial inventory of items taken from the apartment and noticed that the glasses were not listed. Suspiciously, they later appeared in a photograph of the couch. In his latest post about the case, he opined that the glasses were most likely planted by police.

And, the kicker: Allen has identified an alternative suspect, a man who lived in walking distance from the crime scene, knew the victims and vanished from the Houston area the day after the murders. Police never investigated this man, who is now serving life in a Texas prison for a violent crime spree in 1991.

In light of Allen's digging, will Hughes be freed? It's unlikely. Although 12 condemned prisoners in Texas have been exonerated in recent years -- the third highest number of death row exonerations of any state -- Hughes is facing an uphill battle.

The biggest obstacle: He is black and poor and does not have a legal team that is pushing for a new trial based on factual innocence. Just as a court-appointed lawyer failed to spot the holes in Texas' case at the time of Hughes' trial, another court-appointed lawyer has similarly let him down in what could be the final three months of his life.

It is inspiring that J. Bennett Allen has relentlessly challenged Texas' version of the evidence. But it is equally dismaying that this scientist-turned-blogger might be a condemned man's last hope.

Two Important Documentary Film Projects About Wrongful Conviction

Two young documentary filmmakers, Sheila Sofian and Nicholas Kleczewski, are seeking support to help bring their projects to completion.  Both projects -- Ms. Sofian's TRUTH HAS FALLEN and Mr. Kleczewski's SEALED FATE -- address the issue of wrongful conviction.  DNA has forced the American public to admit what police, lawyers and judges have always known, that innocent people are convicted every day.  Ms Sofian and Mr. Kleczewski go beyond the laboratory exonerations, however, and expose the roles of witness perjury, police and prosecutor misconduct, and "tough on innocence" judges.  Here, in their own words, these filmmakers share their visions, and offer us the opportunity to become part of it.

TRUTH HAS FALLEN

For over ten years I have been working on the film “Truth Has Fallen,” an animated/live action documentary about wrongful convictions. This film examines the cases of three people who were convicted for murders they did not commit, and highlights weaknesses in our justice system. Painted animation expresses the fury and grief of their testimony, and represents their version of events. Surreal live action film portrays the experts’ testimony, providing a more detached perspective. “Truth Has Fallen “ exposes causes of wrongful convictions, such as the inaccuracy of eyewitness identification, the unreliability of “snitch” testimony, and forced confessions. Experts advocate for relatively simple changes to our justice system in order to reduce the rate of wrongful convictions. A massive undertaking, I have so far animated over 30 minutes of footage in 7 years (over 22,000 individual paintings.)

Please consider supporting this film. After all these years the animation and live action has been shot. I need to raise the money to hire a composer and sound editor, and for post-production lab expenses in order to take this film to the finish line.


You can view the campaign HERE, which includes a trailer of the film.  A Longer trailer is available HERE.   For more information on the film you can check out the website: TruthHasFallenMovie.com

Thank you for your support! -- Sheila Sofian

SEALED FATE

SEALED FATE

I'm Nicholas Kleczewski a full time editor and documentary filmmaker. I'm not one for talking about myself much, but as a constant kickstarter backer myself, I know how important establishing legitimacy to a project can be. I've directed and or edited seven feature documentaries, worked directly with big music artists like Beyonce, Tina Turner, Pink, etc, my films have appeared in over 40 film festivals worldwide and I've won numerous awards including the Audience and Grand Jury Awards for Best Documentary at Slamdance which runs during the Sundance Film Festival. Some of the other festival wins with my work is shown below. My latest reel as a commercial director/editor can be found at www.trsociety.com.

SEALED FATE is a feature documentary about two Navy SEAL trainees who were convicted of one of the most famous murders in Hampton Roads Virginia history. The case was highly publicized and quickly became a media frenzy. The film follows the news reporting of the time but also goes deeper with interviews, footage, reenactments, facts and analysis from everyone involved with the case. Not only is the case covered in great detail with everyone involved but it is also gives the audience a closer look into Navy SEAL training and culture than nearly any film has shown before due to unprecendeted footage access at BUD/S, the Navy SEAL training program. But like any great documentary, what seems to be just a retelling of a notable story from the past quickly transforms into something much more. We don't want to give that away completely, but since we are asking you to invest in this project we will say that as you can see in the promo trailer above, things are not as they seem, who's guilty, who isn't, who was motivated for personal or political gain and who just wanted justice no matter the cost quickly come to light and by the end the audience will have a whole different take on the story then when it began.

I've launched a kickstarter project to help raise funding to complete the long in development film and all the info you could ever want to know and a trailer can be found at: SEALED FATE

Thanks so much for your support! -- Nick Kleczewski

A Novel Approach

Ray Dix is one of our favorite novelists.  Why?  Because he draws his inspiration from his own experience and expertise as a death row defender -- one of those courageous attorneys who takes on the worst cases, with the grimmest outcomes.  A Public Defender in Florida, Ray has tried cases, written appeals, and served as a research and writing attorney for the judges of two judicial circuits over a twenty-two year career.

And, of course, Ray can write.  His characters spring to life, fully formed and three-dimensional. We love them or we hate them, we understand them or we are confounded by them.  They are REAL to us, because Ray makes them real.  It's a rare gift.

Ray's second novel, TAMPA BAY BLUES, has just been published.  The back cover gives a brief -- and tantalizing -- description:

TAMPA BAY BLUES takes you deep into the fellowship of Alcoholics Anonymous and the unsettling world of police interrogation techniques.

Ex-Public Defender Woody Thomas’ friend from Alcoholics Anonymous, David Ingel, is murdered and Woody represents Robbie Battles, a mutual friend from AA who is charged with murdering David during an alcoholic blackout. Woody turns to detective Kyle Murdock, a former Navy SEAL, for help in an investigation that leads from the horse country of Ocala, to suburban Tampa and the beaches of Tampa Bay.

Unfortunately, Robbie Battles has confessed to the murder, the police have a murder weapon, and David's beautiful widow has a snub-nosed .38 Special and a passion for revenge.

You can find and purchase TAMPA BAY BLUES at Amazon any time.  But from August 3 to August 5, you can download the Kindle version -- FREE.  Click HERE to check it out. Even if you miss the free download, don't miss the opportunity to meet Ray's characters.  You'll never forget them.

And more good news -- Ray's first novel, DEATH ROW DEFENDER, is being re-released as CLEARWATER RUN.  Check for it at Amazon in September (2012).

Innocence Commission: Justice Worth Price

The follow editorial was published by The Ledger on July 21, 2012.

A commission that was set up to propose ways for Florida to avoid convicting innocent people has finished its work. It came up with several concrete recommendations — mostly already proven effective in other states — but its major proposal boiled down to one word.

Money.

More specifically, the Florida Innocence Commission said the state's criminal-justice system doesn't have enough money to function properly and prevent grievous injustices from occurring.

That's not a problem unique to the criminal courts, of course. The Legislature has been cutting and slashing agencies from all three branches of government for several years, with no relief in sight. The chronically weak economy isn't the Legislature's fault. The blame for that goes far beyond Florida's — and America's — borders.

But one thing that is the Legislature's fault is its absolute refusal to even consider any form of new revenue, regardless of how equitable it might be. Sometimes, cost cutting can be even more expensive than meeting needs head-on.

One major example given by the Innocence Commission — which was created by the Florida Supreme Court — is a law passed this year that tightens up the amount of money the state will allow lawyers to be paid for representing indigent defendants who can't be represented by public defenders for various reasons. It sets a maximum compensation for defending the most serious crimes at $15,000 in capital cases. In many instances, a lawyer would be paid less than the state's minimum wage.

EFFECTIVE LAWYERS NEEDED

What kinds of lawyers would be willing to accept such a fee system? Would you want one of them defending you? The Innocence Commission, which included a number of prosecutors and law-enforcement officials, said no — unanimously. The commission said the fee system "invites ineffective assistance of counsel and wrongful convictions."

Commission Chairman Belvin Perry, a circuit judge from Orlando who has presided over many high-profile criminal cases, spelled it out: "Someone in jail who is wrongfully convicted, or someone who is inexperienced, has to battle in court against experienced attorneys. The only thing the criminal-justice system has is the confidence that people have in it. The underfunding of this system in this state is going to lead us to a situation where people will look at the system and have no faith or confidence in it.

"We hear about the executive branch hiring out-of-state counsel for three to four hundred dollars an hour. It would be one thing if we start paying someone one hundred to one hundred twenty-five dollars an hour to represent a person charged with murder in the first degree, considering the state wants to impose the ultimate sanction to forfeit that person's life. Now an attorney has to sign an agreement to take $15,000 for a case lasting more than a year. That is a mockery in and of itself. When we have 10-20-life, we still have to give the person a chance to come to court and require the state to prove guilt. I challenge you to pull out the Declaration of Independence and read what led to this country breaking away from England. Read what the King of England did and ask if we are heading down that path."

The commission said court-appointed defense attorneys should be paid on the basis of the level of felony involved, without flat fees.

JURY INSTRUCTIONS

The commission also recommended that jurors be instructed to use caution in accepting the testimony of jailhouse "snitches," who may expect a reward for cooperating with prosecutors. It also urged that steps be taken to ensure that a witness' identification of a criminal defendant isn't prompted by the actions of police or prosecutors, or that confessions haven't been coerced or obtained through egregious deception. The commission also said the court system needs to take better notice of cases in which attorney misconduct has been persuasively shown.

And it urged that more money be spent in DNA testing and record-keeping, because DNA testing has resulted in the freeing of many innocent people who were convicted of crimes before the tests were available.

Some of the commission's proposed reforms were incorporated in a bill proposed in the 2012 legislative session by Sen. Joe Negron, R-Stuart, who was a member of the commission. The bill didn't pass, so the Legislature should resolve now to make these reforms a much higher priority for the 2013 session.

The dark side of forensic science

The following opinion by The Editorial Board of the Washington Post was published on July 16, 2012.

KIRK L. ODOM is innocent.

Federal prosecutors finally have confirmed that Mr. Odom was wrongfully convicted of a 1981 D.C. rape, for which he served 20 years in prison. Mr. Odom was sentenced at age 18; this nightmare has consumed more than half his life, and all because of errors in forensic techniques.

Worse still is that he isn’t alone. As The Post’s Spencer Hsu and others reported in a series of investigative articles this spring, similar errors have led to the convictions of two other men in the District: Santae A. Tribble, who served 28 years in prison, before a judge overturned his conviction in May, and Donald E. Gates, who served the same number of years for a 1981 Rock Creek rape and murder he didn’t commit.

These three cases should serve as a call to explore forensic errors that could have put more innocent men behind bars — or could do so in the future. In the wake of The Post’s reports, the Justice Department and the FBI announced last Tuesday the largest-ever post-conviction review, which will examine all cases after 1985 that relied on hair and fiber examinations. This is necessary and long overdue.

However, while the review’s results almost surely will uncover deficiencies in previous uses of forensic evidence, many flawed practices — including hair-sample analysis — are no longer in standard usage. Beyond finding and acknowledging errors of the past, a focus should be on taking every conceivable step to eliminate future wrongful convictions.

In terms of forensics, there’s still considerable work to do. As the National Academy of Sciences recommended in a 2009 report to Congress: “Research is needed to address issues of accuracy, reliability, and validity in the forensic science disciplines.” Although hair-sample analysis may be obsolete, uncertainty attaches to other techniques still in common use, such as firearm examination and fingerprint analysis. To that end, Sens. Patrick J. Leahy (D-Vt.) and John D. Rockefeller IV (D-W.Va.) each have proposed bills that would, among other things, promote more scientific research and develop uniform forensic standards. These reforms are critical steps that should have been enacted long ago, and they should be enacted without further delay.

U.S. Attorney Ronald C. Machen Jr. expressed his office’s sympathy with Mr. Odom: “Though we can never give him back the years that he lost,” he wrote, “we can give Mr. Odom back his unfairly tarnished reputation.” He’s right: No amount of recompense — financial or otherwise — could right the wrongs done to Mr. Odom, Mr. Tribble, Mr. Gates and however many others have been wrongfully convicted.

All the more reason to take every possible step to avoid similar mistakes in the future.

Wrongful Convictions: Justice Denied

The following editorial was published by the Richmond (Virginia) Times-Dispatch on June 22, 2012.

An innocent person wrongfully imprisoned is the stuff of Hollywood movies, real-life TV shows — and authoritarian regimes. It is also, tragically, the story of too many men in Virginia's prison system.

A new study — the most authoritative to date — based on DNA testing indicates that at least 8 percent, and perhaps as many as 15 percent, of persons convicted of sexual-assault crimes during the 15-year-period studied may be innocent. This is horrifying news.

It is horrifying on a number of levels. One is the grave injustice done to those who are branded sex offenders and consigned to a miserable life behind bars for years on end, though they have done nothing wrong. And though the prisoners' families are not locked up, they suffer right alongside them. Imagine having a father, son or brother consigned to barred hell through no fault of his own. (Those who say guests of the prison system have a soft and easy life are invited to try it for a few months and see for themselves.)

Wrongful imprisonment also compounds that injustice by letting the real perpetrator go free — perhaps to commit further heinous acts. From the perspective of deterrence and punishment, locking up the wrong person is even worse than leaving a case unsolved. At least in an unsolved case, the authorities know the perpetrator is still out there somewhere. With a wrongful conviction, they can rest easy in the false belief they have put him away.

What's more, wrongful conviction victimizes all over again those who have suffered sexual assault — who find themselves stripped of the comfort of knowing their attackers are behind bars. And finally, it diminishes public confidence in the criminal-justice system.

Police and prosecutors do their best. Many of them enter their professions precisely because they are motivated by a powerful thirst for justice and a felt duty to root out evil. But like everyone else on the planet, those who work in law enforcement fall short of perfection. The Urban Institute report on wrongful convictions shows the extent to which human shortcomings can combine to create systemic failure.

The report does not provide the final word. Much more scrutiny and analysis are in order. But the report should serve as a call to action for state lawmakers. It also should sound alarms elsewhere. Virginia's DNA testing project sets the commonwealth apart from and above the other 49 states, which have undertaken no such examination. Perhaps they should.

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.