The following editorial was published by the Los Angeles Times on September 21, 2009.
Making forensic science scientific
Establishing national forensic science standards is crucial when evidence determines life or death.
September 21, 2009
With the busiest death chamber in the nation, it was only a matter of time before Texas positioned itself to become the first state to admit that it executed a person who was wrongfully convicted. And now that day is at hand.
According to a nationally respected fire engineer, the so-called scientific evidence used to convict Cameron Todd Willingham of setting a blaze that killed his three daughters in 1995 was not scientific at all. In his scathing report to the Texas Forensic Science Commission, Craig Beyler found that the arson investigators on the case had a poor understanding of fire dynamics and based their conclusions on erroneous assumptions, sloppy research and a dash of mysticism. For example, one investigator determined that, because the house fire burned "hot and fast," an accelerant such as gasoline had been used to set it. But that theory -- still given credence in some investigatory circles -- is not factual. Gasoline fires are not significantly hotter than those started with wood, Beyler reported.
Willingham's case is heartbreaking: He lost his children to fire and his wife to divorce, spent 12 years in prison and died still protesting his innocence. But his is not an isolated case. There are thousands of Willinghams in prisons across the country. If not on death row, they are nonetheless serving decades-long or even life sentences after having been convicted on the basis of erroneous scientific conclusions made by poorly trained "experts."
In 2006, Congress charged the National Academy of Sciences with studying the application of forensic science in the U.S. judicial system. Its findings, released last year, are grim. Almost every branch of forensics but DNA testing -- hair and fiber analysis, arson investigations, comparisons of bite marks -- lacks the extensive scientific research and established standards to be used in court conclusively.
Consider: Last year, the Innocence Project, a New York-based public policy and litigation organization, helped exonerate Kennedy Brewer, a Mississippi man who had been convicted in 1992 of raping and killing a 3-year-old girl. DNA testing was not available at the time, and the primary evidence against him was that bite marks on the child's body matched his teeth. Examination of the marks by national forensics experts determined that they were not even made by a human mouth: Her body had been dumped in a pond and insects had attacked it. Subsequent DNA testing also excluded Brewer as the rapist.
In February, the science academy issued a report calling for Congress to create a national institute of forensic science, and there is more than enough evidence that one is desperately needed. As an independent agency, not part of the Justice Department, it would be charged with conducting research, setting national standards for forensic disciplines and enforcing those standards. Right now, standards vary wildly. An expert in San Diego, for example, might testify that a fiber is similar to one found at a crime scene, while an expert in San Bernardino might testify that a match is impossible to determine.
Advances in forensics have revolutionized the judicial system, aiding both prosecutors and defense attorneys, exonerating the innocent and confirming the guilty in ways that were impossible just a generation ago. The patchwork state of forensic science should not become an excuse to shy away from its use; rather, the nation should invest in the rigorous research required to standardize techniques and application.
The Senate Judiciary Committee held hearings on the science academy's recommendations this month, and it is to be hoped that the end result is a national forensics institute. The fate of thousands hangs on the correct analysis of a thread, a hair, the fibers of a rug. We can do better by them, even if it's too late for Willingham.
Monday, September 21, 2009
Wednesday, September 16, 2009
Guest Shot: A missed chance for compassion
The following commentary was originally published in the Philadelphia Inquirer on September 14, 2009.
Commentary
A missed chance for compassion
An American Indian activist is denied parole. The sad fact: Nobody notices.
By David Biddle
Saturday was Leonard Peltier's 65th birthday, and he has spent almost half his life in jail.
Peltier, an American Indian Movement (AIM) activist, has been in prison since 1977, found guilty of executing two FBI agents during a shootout at Pine Ridge Reservation in South Dakota.
His case is marred by allegations of witness coercion, judicial fiat, FBI incompetence, and an anti-Indian vigilante mentality. Those of us who followed the militant days of AIM waited hopefully on July 28 for the parole commission to determine whether Peltier had finally paid his dues to society.
Federal parole eligibility for life sentence offenders does not mean freedom or exoneration; it means serving the remainder of a life sentence under supervision of one's community. Eric Seitz, Peltier's attorney, said that his client spoke for more than an hour with "great eloquence . . . we thought it went very well."
Peltier represents one of America's most complex and controversial face-offs between the law-and-order perspective and minority community rights. June 26, 1975, was the culmination of a three-year mini-war between traditionalist and assimilationist factions on the reservation. The assimilationists were using vigilante enforcers to terrorize the traditionalists. AIM, a nationally recognized Indian's rights group that used civil disobedience - and, in those days, weapons - was called in to protect the traditionalists.
The details of that day are twisted now in myth, legend, and distortion - on both sides. We know that two young FBI agents, Jack Coler and Ronald Williams, followed a truck in separate cars onto the Jumping Bull compound and that the truck's occupants eventually jumped out and opened fire on the agents from high ground. Both agents were wounded in this first volley. The truck occupants were joined by a number of AIM members staying in tents on the compound. All were armed, many with high-powered rifles.
Some time after wounding the agents, Peltier and two other AIM members went down to the cars. This is where the story gets twisted up. The government prosecuted Peltier using circumstantial evidence to prove he executed the agents at point-blank range. Peltier and others who were there that day say the agents had already been shot. An AIM member was also killed in the shootout. His death was never investigated. There is no question that this was a senseless, destructive scene arising out of a time of great frustration and fear.
On Aug. 21, we learned that Peltier had been denied parole. The Associated Press offered a brief synopsis of the decision, but few mainstream publications printed this. Most national broadcast outlets posted the AP story online, but offered no TV or radio coverage.
How could Peltier's parole hearing not stir the national media into at least a small frenzy? Forget which side is right. The outcome of that hearing was real news. Peltier's case is the most poignant and powerful reminder of what this society has done to Indian tribes for nearly half a millennium - also what Indians have done to themselves. And we choose, sadly, to ignore all of this.
To grant Peltier parole was an opportunity, albeit very small, for the United States to begin to turn the page on its history with Native America - to show mercy and compassion. Why was this opportunity not news?
But even the denial of parole was a story: law and order trumps human rights; punishment vs. rehabilitation; forgetting the FBI's dark record; one man's political prisoner is another's thug.
What does virtually ignoring this case say about the media? About us as a nation? Do we just not care? Is all that Indian stuff now just water under the bridge?
Media companies are very concerned about profits these days. Maybe if there were more concern about covering issues that no one knows about, rather than issues where everyone thinks he knows everything, people would buy more papers.
--------------------------------------------------------------------------------
David Biddle writes the blog "The Formality of Occurrence" at www.formalityoccurrence.blogspot.com.
Commentary
A missed chance for compassion
An American Indian activist is denied parole. The sad fact: Nobody notices.
By David Biddle
Saturday was Leonard Peltier's 65th birthday, and he has spent almost half his life in jail.
Peltier, an American Indian Movement (AIM) activist, has been in prison since 1977, found guilty of executing two FBI agents during a shootout at Pine Ridge Reservation in South Dakota.
His case is marred by allegations of witness coercion, judicial fiat, FBI incompetence, and an anti-Indian vigilante mentality. Those of us who followed the militant days of AIM waited hopefully on July 28 for the parole commission to determine whether Peltier had finally paid his dues to society.
Federal parole eligibility for life sentence offenders does not mean freedom or exoneration; it means serving the remainder of a life sentence under supervision of one's community. Eric Seitz, Peltier's attorney, said that his client spoke for more than an hour with "great eloquence . . . we thought it went very well."
Peltier represents one of America's most complex and controversial face-offs between the law-and-order perspective and minority community rights. June 26, 1975, was the culmination of a three-year mini-war between traditionalist and assimilationist factions on the reservation. The assimilationists were using vigilante enforcers to terrorize the traditionalists. AIM, a nationally recognized Indian's rights group that used civil disobedience - and, in those days, weapons - was called in to protect the traditionalists.
The details of that day are twisted now in myth, legend, and distortion - on both sides. We know that two young FBI agents, Jack Coler and Ronald Williams, followed a truck in separate cars onto the Jumping Bull compound and that the truck's occupants eventually jumped out and opened fire on the agents from high ground. Both agents were wounded in this first volley. The truck occupants were joined by a number of AIM members staying in tents on the compound. All were armed, many with high-powered rifles.
Some time after wounding the agents, Peltier and two other AIM members went down to the cars. This is where the story gets twisted up. The government prosecuted Peltier using circumstantial evidence to prove he executed the agents at point-blank range. Peltier and others who were there that day say the agents had already been shot. An AIM member was also killed in the shootout. His death was never investigated. There is no question that this was a senseless, destructive scene arising out of a time of great frustration and fear.
On Aug. 21, we learned that Peltier had been denied parole. The Associated Press offered a brief synopsis of the decision, but few mainstream publications printed this. Most national broadcast outlets posted the AP story online, but offered no TV or radio coverage.
How could Peltier's parole hearing not stir the national media into at least a small frenzy? Forget which side is right. The outcome of that hearing was real news. Peltier's case is the most poignant and powerful reminder of what this society has done to Indian tribes for nearly half a millennium - also what Indians have done to themselves. And we choose, sadly, to ignore all of this.
To grant Peltier parole was an opportunity, albeit very small, for the United States to begin to turn the page on its history with Native America - to show mercy and compassion. Why was this opportunity not news?
But even the denial of parole was a story: law and order trumps human rights; punishment vs. rehabilitation; forgetting the FBI's dark record; one man's political prisoner is another's thug.
What does virtually ignoring this case say about the media? About us as a nation? Do we just not care? Is all that Indian stuff now just water under the bridge?
Media companies are very concerned about profits these days. Maybe if there were more concern about covering issues that no one knows about, rather than issues where everyone thinks he knows everything, people would buy more papers.
--------------------------------------------------------------------------------
David Biddle writes the blog "The Formality of Occurrence" at www.formalityoccurrence.blogspot.com.
Sunday, September 06, 2009
Bill Lueders: Justice is everybody's business
The following editorial was published in the September 3, 2009 issue of the Isthmus, Madison, Wisconsin. Bill Lueders is News Editor of the Isthmus.
Justice is everybody's business
The public needs to hold police and prosecutors accountable
Bill Lueders on Thursday 09/03/2009
In April 2008 I wrote a web article about an astonishing legal filing in the Ralph Armstrong case. It alleged that a Dane County prosecutor, by then retired, not only failed to investigate a tip that pointed to a wrongful conviction but set out to destroy evidence that might have proven this.
The article did not take sides. It merely reported what the filing alleged: In the mid-1990s, Dane County prosecutor John Norsetter was contacted by a woman from Texas who said Steve Armstrong had admitted to the 1980 rape and murder of which his brother Ralph was convicted.
Accompanying the filing were detailed affidavits from two women who described this confession, and their efforts to call attention to it. One of them purportedly spoke to Norsetter, Ralph Armstrong's original prosecutor.
Norsetter failed to pass on this information and in 2006 ordered testing that destroyed what remained of a DNA sample, in violation of an existing court order.
Steve Armstrong died in 2005, the same year that the state Supreme Court overturned Ralph Armstrong's conviction on other grounds. He was awaiting retrial when the revelations about his brother came to light.
My article promoted an outraged reaction — but not the sort you might expect.
"Sure we've had our share of mistaken convictions and overzealous prosecution in Dane County, but this is one [case] where people need to tread carefully," wrote one poster on TheDailyPage.com Forum. "What I see is Leuders [real accuracy buff here] being used by Armstrong's defense attorneys in a PR campaign to make Armstrong look like a victim of a corrupt DA.... Shame on you Leuders and shame on Isthmus." Other respondents voiced similar criticisms.
In late July, Reserve Judge Robert Kinney, having heard the allegations against Norsetter, as well as a vigorous defense of his actions by the state, agreed that "a series of conscious decisions" had tainted the conviction beyond redemption. He dismissed the charges, a decision the DA's office has decided not to appeal.
Ralph Armstrong, who has always maintained his innocence (even though it's meant a longer sentence), is on his way to becoming a free man, due to prosecutorial actions Isthmus was skewered for even mentioning.
I tell this story because it points to a larger issue, one that ought to concern the entire community.
Ordinary citizens and even political leaders rarely challenge the criminal justice system, no matter how often we're reminded of its fallibility. Even folks who flock to public meetings on other local issues sit on their hands when it comes to prosecutors and police.
It's a real problem.
Already, we give these people vast powers — to arrest, to prosecute, to overlook transgression, to deprive of liberty — and immunize them from most lawsuits when they screw up. And then, on top of that, we spare them the bother of having to explain themselves. Indeed, the most common public reaction to allegations of injustice is to reflexively defend the system, as though it were too fragile to withstand scrutiny.
In announcing that it was not appealing Judge Kinney's decision, the Dane County District Attorney's Office issued a statement, which read in part:
"[The] record demonstrates that prosecuting attorneys and their colleagues in the Madison Police Department pursued this case in good faith at every stage of the process, and that any errors that occurred during the course of the investigation and prosecution were the product of innocent mistake or oversight."
That settles that. Thanks.
Except, as Columbo might say, for one little thing: Norsetter heard from a woman who said Steve Armstrong had credibly confessed, providing explicit details. He later ordered a DNA test that could not distinguish between brothers but used up the sample.
What makes the system so certain this was an innocent mistake?
Even if it were, that doesn't eliminate the need for answers and accountability. Where are the editorials from Neil Heinen and the dailies? Why hasn't noted local blogger Dave Cieslewicz weighed in?
Because the justice system always gets a pass. We snooze, we lose.
A decade ago I wrote several articles about a 15-year-old girl who was charged with a crime for slightly changing her account of a sexual assault. The person she accused was convicted of a crime. So was the girl's father, for calling her a slut and beating her up after the DA's charges were filed.
Dane County Judge Maryann Sumi dismissed the charge against the girl and chided the DA's office for bringing it. Then it was up to the community to respond. So far as I know, only one person did. Madison resident Moria Cue circulated a petition expressing outrage. She ultimately forced a high-level meeting with the DA's office, and I believe made it less likely that future rape victims will be treated this way.
We need police and prosecutors, and no community has more honorable people at the helm than Madison Police Chief Noble Wray and Dane County DA Brian Blanchard. But we also need citizens like Moria Cue, looking over their shoulders, asking for explanations.
Justice is everybody's business
The public needs to hold police and prosecutors accountable
Bill Lueders on Thursday 09/03/2009
In April 2008 I wrote a web article about an astonishing legal filing in the Ralph Armstrong case. It alleged that a Dane County prosecutor, by then retired, not only failed to investigate a tip that pointed to a wrongful conviction but set out to destroy evidence that might have proven this.
The article did not take sides. It merely reported what the filing alleged: In the mid-1990s, Dane County prosecutor John Norsetter was contacted by a woman from Texas who said Steve Armstrong had admitted to the 1980 rape and murder of which his brother Ralph was convicted.
Accompanying the filing were detailed affidavits from two women who described this confession, and their efforts to call attention to it. One of them purportedly spoke to Norsetter, Ralph Armstrong's original prosecutor.
Norsetter failed to pass on this information and in 2006 ordered testing that destroyed what remained of a DNA sample, in violation of an existing court order.
Steve Armstrong died in 2005, the same year that the state Supreme Court overturned Ralph Armstrong's conviction on other grounds. He was awaiting retrial when the revelations about his brother came to light.
My article promoted an outraged reaction — but not the sort you might expect.
"Sure we've had our share of mistaken convictions and overzealous prosecution in Dane County, but this is one [case] where people need to tread carefully," wrote one poster on TheDailyPage.com Forum. "What I see is Leuders [real accuracy buff here] being used by Armstrong's defense attorneys in a PR campaign to make Armstrong look like a victim of a corrupt DA.... Shame on you Leuders and shame on Isthmus." Other respondents voiced similar criticisms.
In late July, Reserve Judge Robert Kinney, having heard the allegations against Norsetter, as well as a vigorous defense of his actions by the state, agreed that "a series of conscious decisions" had tainted the conviction beyond redemption. He dismissed the charges, a decision the DA's office has decided not to appeal.
Ralph Armstrong, who has always maintained his innocence (even though it's meant a longer sentence), is on his way to becoming a free man, due to prosecutorial actions Isthmus was skewered for even mentioning.
I tell this story because it points to a larger issue, one that ought to concern the entire community.
Ordinary citizens and even political leaders rarely challenge the criminal justice system, no matter how often we're reminded of its fallibility. Even folks who flock to public meetings on other local issues sit on their hands when it comes to prosecutors and police.
It's a real problem.
Already, we give these people vast powers — to arrest, to prosecute, to overlook transgression, to deprive of liberty — and immunize them from most lawsuits when they screw up. And then, on top of that, we spare them the bother of having to explain themselves. Indeed, the most common public reaction to allegations of injustice is to reflexively defend the system, as though it were too fragile to withstand scrutiny.
In announcing that it was not appealing Judge Kinney's decision, the Dane County District Attorney's Office issued a statement, which read in part:
"[The] record demonstrates that prosecuting attorneys and their colleagues in the Madison Police Department pursued this case in good faith at every stage of the process, and that any errors that occurred during the course of the investigation and prosecution were the product of innocent mistake or oversight."
That settles that. Thanks.
Except, as Columbo might say, for one little thing: Norsetter heard from a woman who said Steve Armstrong had credibly confessed, providing explicit details. He later ordered a DNA test that could not distinguish between brothers but used up the sample.
What makes the system so certain this was an innocent mistake?
Even if it were, that doesn't eliminate the need for answers and accountability. Where are the editorials from Neil Heinen and the dailies? Why hasn't noted local blogger Dave Cieslewicz weighed in?
Because the justice system always gets a pass. We snooze, we lose.
A decade ago I wrote several articles about a 15-year-old girl who was charged with a crime for slightly changing her account of a sexual assault. The person she accused was convicted of a crime. So was the girl's father, for calling her a slut and beating her up after the DA's charges were filed.
Dane County Judge Maryann Sumi dismissed the charge against the girl and chided the DA's office for bringing it. Then it was up to the community to respond. So far as I know, only one person did. Madison resident Moria Cue circulated a petition expressing outrage. She ultimately forced a high-level meeting with the DA's office, and I believe made it less likely that future rape victims will be treated this way.
We need police and prosecutors, and no community has more honorable people at the helm than Madison Police Chief Noble Wray and Dane County DA Brian Blanchard. But we also need citizens like Moria Cue, looking over their shoulders, asking for explanations.
Dahlia Lithwick: Innocent Until Executed
The following was published September 3, 2009 in Newsweek Magazine, magazine issue dated Sep. 14, 2009.
Innocent Until Executed
We have no right to exoneration.
By Dahlia Lithwick
For years, death-penalty opponents and supporters have been working their way toward a moment in which each side would rethink things. They were seeking a case in which a clearly innocent defendant was wrongly put to death. In a 2005 Supreme Court case that actually had nothing to do with the execution of innocents, Justices David Souter and Antonin Scalia tangled over the possibility that such a creature even existed. Souter fretted that "the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests." To which Scalia retorted: "The dissent makes much of the newfound capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt." Scalia went on to blast "sanctimonious" death-penalty opponents and a 1987 study on innocent exonerations whose "obsolescence began at the moment of publication," then concluded that there was not "a single case—not one—in which it is clear that a person was executed for a crime he did not commit."
This suggested that if anyone found such a case, the Scalias of the world would rethink matters. As of today, the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, claims there have been 241 postconviction DNA exonerations, of which 17 were former death-row inmates spared execution. The gap between their facts and Scalia's widens every year. And now we may have found that case of an innocent put to death: Cameron Todd Willingham, executed by the state of Texas in 2004 for allegedly setting a 1991 house fire that killed his three young daughters.
Click here to find out more!
David Grann, who wrote a remarkable piece about the case in last week's New Yorker, sifted through the evidence against Willingham to reveal that the entire prosecution was a train wreck. And at every step in his appeal, Willingham's claims of innocence were met with the response that he'd already had more than enough due process for a baby killer.
But you needn't take Grann's word for it. In 2004 Gerald Hurst, an acclaimed scientist and fire investigator, conducted an independent investigation of the evidence in the Willingham case and came away with little doubt that it was an accidental fire—likely caused by a space heater or bad wiring. Hurst found no evidence of arson, and wrote a report to try to stay the execution. According to documents obtained by the Innocence Project, it appears nobody at the state Board of Pardons and Paroles or the Texas governor's office even took note of Hurst's conclusions. Just before Willingham was executed, he told the Associated Press, "[T]he most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake."
Since Willingham's death, two other independent inquiries found no evidence of arson. In 2007 the state of Texas commissioned another renowned arson expert, Craig Beyler, to examine the Willingham evidence. Beyler's report, issued two weeks ago, concluded that investigators had no scientific basis for claiming the fire was arson.
One might think that all this would give a boost to death-penalty opponents, who have long contended that conclusive proof of an innocent murdered by the state would fundamentally change the debate. But that was before the goalposts began to shift this summer. In June, by a 5–4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," wrote Chief Justice John Roberts. And two months later, Justices Scalia and Clarence Thomas went even further when the Supreme Court ordered a new hearing in Troy Davis's murder case, after seven of nine eyewitnesses recanted their testimony. Justice Scalia, dissenting from that order, wrote for himself and Thomas, "[T]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."
As a constitutional matter, Scalia's assertion is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a "truly persuasive demonstration" of innocence. Now, in Scalia's America, the Cameron Todd Willingham whose very existence was once in doubt is legally irrelevant. We may execute a man for an accidental house fire, while the Constitution itself stands silently by.
Lithwick also writes for slate.com.
Innocent Until Executed
We have no right to exoneration.
By Dahlia Lithwick
For years, death-penalty opponents and supporters have been working their way toward a moment in which each side would rethink things. They were seeking a case in which a clearly innocent defendant was wrongly put to death. In a 2005 Supreme Court case that actually had nothing to do with the execution of innocents, Justices David Souter and Antonin Scalia tangled over the possibility that such a creature even existed. Souter fretted that "the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests." To which Scalia retorted: "The dissent makes much of the newfound capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt." Scalia went on to blast "sanctimonious" death-penalty opponents and a 1987 study on innocent exonerations whose "obsolescence began at the moment of publication," then concluded that there was not "a single case—not one—in which it is clear that a person was executed for a crime he did not commit."
This suggested that if anyone found such a case, the Scalias of the world would rethink matters. As of today, the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, claims there have been 241 postconviction DNA exonerations, of which 17 were former death-row inmates spared execution. The gap between their facts and Scalia's widens every year. And now we may have found that case of an innocent put to death: Cameron Todd Willingham, executed by the state of Texas in 2004 for allegedly setting a 1991 house fire that killed his three young daughters.
Click here to find out more!
David Grann, who wrote a remarkable piece about the case in last week's New Yorker, sifted through the evidence against Willingham to reveal that the entire prosecution was a train wreck. And at every step in his appeal, Willingham's claims of innocence were met with the response that he'd already had more than enough due process for a baby killer.
But you needn't take Grann's word for it. In 2004 Gerald Hurst, an acclaimed scientist and fire investigator, conducted an independent investigation of the evidence in the Willingham case and came away with little doubt that it was an accidental fire—likely caused by a space heater or bad wiring. Hurst found no evidence of arson, and wrote a report to try to stay the execution. According to documents obtained by the Innocence Project, it appears nobody at the state Board of Pardons and Paroles or the Texas governor's office even took note of Hurst's conclusions. Just before Willingham was executed, he told the Associated Press, "[T]he most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake."
Since Willingham's death, two other independent inquiries found no evidence of arson. In 2007 the state of Texas commissioned another renowned arson expert, Craig Beyler, to examine the Willingham evidence. Beyler's report, issued two weeks ago, concluded that investigators had no scientific basis for claiming the fire was arson.
One might think that all this would give a boost to death-penalty opponents, who have long contended that conclusive proof of an innocent murdered by the state would fundamentally change the debate. But that was before the goalposts began to shift this summer. In June, by a 5–4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," wrote Chief Justice John Roberts. And two months later, Justices Scalia and Clarence Thomas went even further when the Supreme Court ordered a new hearing in Troy Davis's murder case, after seven of nine eyewitnesses recanted their testimony. Justice Scalia, dissenting from that order, wrote for himself and Thomas, "[T]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."
As a constitutional matter, Scalia's assertion is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a "truly persuasive demonstration" of innocence. Now, in Scalia's America, the Cameron Todd Willingham whose very existence was once in doubt is legally irrelevant. We may execute a man for an accidental house fire, while the Constitution itself stands silently by.
Lithwick also writes for slate.com.
Fred Grimm: Case is among string of bogus convictions
The following op-ed column was published by the Miami Herald on September 5, 2009.
Case is among string of bogus convictions
By FRED GRIMM
fgrimm@MiamiHerald.com
The kid they tried to execute was just 15. An IQ of 67.
The Broward prosecutor demanded the death penalty. But the jury, queasy about killing a mentally deficient teenager with no more evidence than a questionable confession, voted to spare Anthony Caravella's life.
Circuit Judge Arthur J. Franza seemed disappointed. ``I'll tell you this, Anthony: If the jury had recommended death, I would have had you electrocuted.''
Broward was that close to executing an innocent teenager.
Twenty-six years after Caravella was sent off for life, Edward Blake, a leading forensic scientist and a pioneer in DNA analysis, obtained a genetic profile from sperm left by the man who raped and murdered Ada Jankowski behind Miramar Elementary School in 1982. Blake concluded: ``Anthony Caravella is eliminated as the source of the spermatozoa.''
So Caravella's case becomes yet another among the Broward state attorney's string of ignominious convictions of mentally challenged defendants, later found to be innocent.
SHAM CONFESSION
Once again, the deciding ``evidence'' was a sham confession elicited from a feeble-minded suspect after hours of interrogation.
The confession, of course, was the only actual evidence against Caravella. In fact, the cops elicited five contradictory confessions from the teenager, but the last, finally, coincided with the crime-scene evidence.
The new DNA findings suggest the interrogators provided the incriminating information. It must have been easy stuff, manipulating a frightened, mentally deficient suspect into self-incriminating statements. Just like John Purvis, a schizophrenic with the mind of a 12-year-old, who after a rambling, barely coherent confession, did nine years for a murder finally linked to someone else. Jerry Frank Townsend, IQ of 50, served 22 years after confessing to murders committed by Fort Lauderdale serial killer Eddie Lee Mosley. Frank Lee Smith, so mentally disturbed he shouted incoherent inanities at his jury, died of cancer after a dozen years on Death Row before DNA evidence cleared him.
FINE CAREER MOVE
Cops got their bogus statements. Prosecutors got their bogus convictions. And convicting mentally defective innocents proved a fine career move. Prosecutor Robert Carney, who nailed both Purvis and Carvella, now sits as a Broward circuit judge. William Dimitrouleas, who prosecuted Frank Lee Smith, has a lifetime appointment as a federal judge. Meanwhile, actual killers went free. Eddie Lee Mosley continued his hideous rape and murder spree. Miramar police never bothered to discover who stabbed Ada Jankowski 28 times.
In 2001, the Broward Sheriff's Office crime lab was persuaded to reexamine evidence from the Caravella case but failed, mysteriously, to isolate any DNA. Blake said Friday he received a ``harassing'' e-mail this week from the Broward state attorney's office indicating that, contrary to public statements about undoing a terrible injustice, the office would try to undermine his lab's credibility. If so, it would be a stunning tactic, given his national reputation. (With a list of high profile DNA cases that runs 51 pages, including the lab work that cleared Allen Crotzer and Luis Diaz, the wrongly accused Bird Road Rapist.)
``It appears they've gone into full scale cover-up mode,'' Blake said Friday. In Broward, we've been there before.
Case is among string of bogus convictions
By FRED GRIMM
fgrimm@MiamiHerald.com
The kid they tried to execute was just 15. An IQ of 67.
The Broward prosecutor demanded the death penalty. But the jury, queasy about killing a mentally deficient teenager with no more evidence than a questionable confession, voted to spare Anthony Caravella's life.
Circuit Judge Arthur J. Franza seemed disappointed. ``I'll tell you this, Anthony: If the jury had recommended death, I would have had you electrocuted.''
Broward was that close to executing an innocent teenager.
Twenty-six years after Caravella was sent off for life, Edward Blake, a leading forensic scientist and a pioneer in DNA analysis, obtained a genetic profile from sperm left by the man who raped and murdered Ada Jankowski behind Miramar Elementary School in 1982. Blake concluded: ``Anthony Caravella is eliminated as the source of the spermatozoa.''
So Caravella's case becomes yet another among the Broward state attorney's string of ignominious convictions of mentally challenged defendants, later found to be innocent.
SHAM CONFESSION
Once again, the deciding ``evidence'' was a sham confession elicited from a feeble-minded suspect after hours of interrogation.
The confession, of course, was the only actual evidence against Caravella. In fact, the cops elicited five contradictory confessions from the teenager, but the last, finally, coincided with the crime-scene evidence.
The new DNA findings suggest the interrogators provided the incriminating information. It must have been easy stuff, manipulating a frightened, mentally deficient suspect into self-incriminating statements. Just like John Purvis, a schizophrenic with the mind of a 12-year-old, who after a rambling, barely coherent confession, did nine years for a murder finally linked to someone else. Jerry Frank Townsend, IQ of 50, served 22 years after confessing to murders committed by Fort Lauderdale serial killer Eddie Lee Mosley. Frank Lee Smith, so mentally disturbed he shouted incoherent inanities at his jury, died of cancer after a dozen years on Death Row before DNA evidence cleared him.
FINE CAREER MOVE
Cops got their bogus statements. Prosecutors got their bogus convictions. And convicting mentally defective innocents proved a fine career move. Prosecutor Robert Carney, who nailed both Purvis and Carvella, now sits as a Broward circuit judge. William Dimitrouleas, who prosecuted Frank Lee Smith, has a lifetime appointment as a federal judge. Meanwhile, actual killers went free. Eddie Lee Mosley continued his hideous rape and murder spree. Miramar police never bothered to discover who stabbed Ada Jankowski 28 times.
In 2001, the Broward Sheriff's Office crime lab was persuaded to reexamine evidence from the Caravella case but failed, mysteriously, to isolate any DNA. Blake said Friday he received a ``harassing'' e-mail this week from the Broward state attorney's office indicating that, contrary to public statements about undoing a terrible injustice, the office would try to undermine his lab's credibility. If so, it would be a stunning tactic, given his national reputation. (With a list of high profile DNA cases that runs 51 pages, including the lab work that cleared Allen Crotzer and Luis Diaz, the wrongly accused Bird Road Rapist.)
``It appears they've gone into full scale cover-up mode,'' Blake said Friday. In Broward, we've been there before.
Friday, September 04, 2009
Byron Williams: Time to do away with the death penalty
The following op-ed was published in the Oakland (California) Tribune on September 3, 2009.
SEPTEMBER 3, 2009
Byron Williams: Time to do away with the death penalty
Contributing columnist
REGARDLESS OF where you come down on the death penalty, Cameron Todd Willingham is a name you should not forget. In this week's New Yorker, investigative reporter David Grann writes a very convincing article that Willingham, who was executed by the state of Texas in 2004, was most likely an innocent man.
Willingham was convicted of murdering his three children by setting fire to his wood-frame house in Corsicana, Texas.
The first problem Willingham faced was an inability to afford legal representation. Death rows across the country are filled with those who must rely on public defenders.
After reading Willingham's story in The New Yorker, one can't help but ask, at a minimum, have innocent people been executed?
It is a question death-penalty advocates are unable to address without sinking to the depths of the gruesome and barbaric. Since it is impossible to avoid error, the only way one can support the death penalty is to suggest that we have expendable portions of society.
That may sound over-the-top, but what else could explain supporting a policy that is costly, inefficient, economically subjective and, if carried out, offers no adequate recourse should the ultimate mistake be made?
There is no dependable data that proves the death penalty saves lives, as some would suggest. But it has been proven that capital punishment is more costly than life without the possibility of parole because of the expensive appeal process. This leaves some death-penalty advocates to suggest limiting the appeal process.
This option — which is a proven applause line on the campaign trail — reveals the extent to which some people are willing to go to maintain a system that does not work.
Anyone who cavalierly recommends reducing the appeal process is, in effect, arguing on behalf of the best way to ensure more innocent people are put to death.
Since 1976, more than 130 individuals on death row have been exonerated. DNA testing, which was developed in the 1980s, has definitely changed the dynamics. But DNA testing is used sparingly.
Barry Scheck, a co-founder of the Innocence Project, which has used DNA testing to exonerate prisoners, estimates that roughly 80 percent of felonies do not involve biological evidence.
In 2000, former Illinois Gov. George Ryan exonerated 13 individuals on death row and then suspended the state's death penalty. Ryan had been a longtime advocate of capital punishment, but he declared that he could no longer support a system that has "come so close to the ultimate nightmare — the state's taking of innocent life."
Former Supreme Court Justice Sandra Day O'Connor has said that the "execution of a legally and factually innocent person would be a constitutionally intolerable event." But our continued support of the death penalty suggests that it is not intolerable.
A majority of Californians still favor the death penalty, but a new public-opinion poll by UC Professor Craig Haney reveals that support for capital punishment has eroded significantly since 1989, the last time a detailed statewide survey on the topic was conducted.
Sixty-six percent of 800 respondents in the new poll expressed support for the death penalty, compared to 79 percent in 1989.
Haney's findings are consistent with the findings of a recent statewide Field Poll that asked one question about capital punishment. Sixty-seven percent of respondents to that survey support the death penalty, the Field Poll found.
The proportion of adult Californians who view themselves as "strong" supporters of the death penalty has dropped from 50 percent in 1989 to 38 percent today. Conversely, fewer than 9 percent were "strongly opposed" to capital punishment 20 years ago, compared to 21 percent today.
"These changes appear to be related to changes in the way Californians view the system of death sentencing, rather than just the punishment itself," said Haney.
It is easy to parse out the most heinous crimes as Exhibit A as to why we need to maintain the death penalty. Public policy, however, cannot be based on the exception.
Continued support of a system that can possibly execute an innocent person means there is an error percentage higher than zero that one is willing to live with. If there can be no perfect system, why not discontinue the barbarity?
That way, on the rare occasion that an innocent person is wrongfully convicted, there remains the possibility of proving that person's innocence while that person is still alive.
Byron Williams is an Oakland pastor and columnist for Bay Area News Group-East Bay. E-mail him at byron@byronspeaks.com or leave a message at 510-208-6417.
SEPTEMBER 3, 2009
Byron Williams: Time to do away with the death penalty
Contributing columnist
REGARDLESS OF where you come down on the death penalty, Cameron Todd Willingham is a name you should not forget. In this week's New Yorker, investigative reporter David Grann writes a very convincing article that Willingham, who was executed by the state of Texas in 2004, was most likely an innocent man.
Willingham was convicted of murdering his three children by setting fire to his wood-frame house in Corsicana, Texas.
The first problem Willingham faced was an inability to afford legal representation. Death rows across the country are filled with those who must rely on public defenders.
After reading Willingham's story in The New Yorker, one can't help but ask, at a minimum, have innocent people been executed?
It is a question death-penalty advocates are unable to address without sinking to the depths of the gruesome and barbaric. Since it is impossible to avoid error, the only way one can support the death penalty is to suggest that we have expendable portions of society.
That may sound over-the-top, but what else could explain supporting a policy that is costly, inefficient, economically subjective and, if carried out, offers no adequate recourse should the ultimate mistake be made?
There is no dependable data that proves the death penalty saves lives, as some would suggest. But it has been proven that capital punishment is more costly than life without the possibility of parole because of the expensive appeal process. This leaves some death-penalty advocates to suggest limiting the appeal process.
This option — which is a proven applause line on the campaign trail — reveals the extent to which some people are willing to go to maintain a system that does not work.
Anyone who cavalierly recommends reducing the appeal process is, in effect, arguing on behalf of the best way to ensure more innocent people are put to death.
Since 1976, more than 130 individuals on death row have been exonerated. DNA testing, which was developed in the 1980s, has definitely changed the dynamics. But DNA testing is used sparingly.
Barry Scheck, a co-founder of the Innocence Project, which has used DNA testing to exonerate prisoners, estimates that roughly 80 percent of felonies do not involve biological evidence.
In 2000, former Illinois Gov. George Ryan exonerated 13 individuals on death row and then suspended the state's death penalty. Ryan had been a longtime advocate of capital punishment, but he declared that he could no longer support a system that has "come so close to the ultimate nightmare — the state's taking of innocent life."
Former Supreme Court Justice Sandra Day O'Connor has said that the "execution of a legally and factually innocent person would be a constitutionally intolerable event." But our continued support of the death penalty suggests that it is not intolerable.
A majority of Californians still favor the death penalty, but a new public-opinion poll by UC Professor Craig Haney reveals that support for capital punishment has eroded significantly since 1989, the last time a detailed statewide survey on the topic was conducted.
Sixty-six percent of 800 respondents in the new poll expressed support for the death penalty, compared to 79 percent in 1989.
Haney's findings are consistent with the findings of a recent statewide Field Poll that asked one question about capital punishment. Sixty-seven percent of respondents to that survey support the death penalty, the Field Poll found.
The proportion of adult Californians who view themselves as "strong" supporters of the death penalty has dropped from 50 percent in 1989 to 38 percent today. Conversely, fewer than 9 percent were "strongly opposed" to capital punishment 20 years ago, compared to 21 percent today.
"These changes appear to be related to changes in the way Californians view the system of death sentencing, rather than just the punishment itself," said Haney.
It is easy to parse out the most heinous crimes as Exhibit A as to why we need to maintain the death penalty. Public policy, however, cannot be based on the exception.
Continued support of a system that can possibly execute an innocent person means there is an error percentage higher than zero that one is willing to live with. If there can be no perfect system, why not discontinue the barbarity?
That way, on the rare occasion that an innocent person is wrongfully convicted, there remains the possibility of proving that person's innocence while that person is still alive.
Byron Williams is an Oakland pastor and columnist for Bay Area News Group-East Bay. E-mail him at byron@byronspeaks.com or leave a message at 510-208-6417.
Guest Shot: Sex-Registry Flaws Stand Out
The following news article was originally published in the Wall Street Journal on September 3, 2009.
Sex-Registry Flaws Stand Out
By RYAN KNUTSON and JUSTIN SCHECK
The case of Phillip Garrido, who allegedly held Jaycee Dugard in his backyard for 18 years despite monthly law-enforcement visits, is forcing California officials to acknowledge a fundamental problem with the state's sex-offender registry: The list keeps expanding, while the number of officials who monitor sex offenders has grown at a much slower rate.
There are now so many people on the registry it's difficult for law enforcement to effectively track them all, and "it's more helpful for law enforcement to know...who the highest-risk offenders are," said Janet Neeley, a deputy California attorney general and member of the state's sex offender board.
A December study of roughly 20,000 registered sex offenders on parole in California found 9% posed a "high risk" of reoffending, and 29% posed a "moderate-high" to "high" risk, said Ms. Neeley. But law-enforcement officials and academics say vast resources are spent monitoring nonviolent offenders rather than keeping closer tabs on more-dangerous ones.
California's sex-offender registry has ballooned to more than 90,000 people now from about 45,000 in 1994, according to the California attorney general's office. Not only has the number of law-enforcement officers failed to keep pace, but recent state budget cuts have forced some local agencies to cut officers assigned to sex offenders, according to the California Commission on Peace Officer Standards and Training.
The Santa Clara County Sheriff's Office, for example, said funding cuts have forced it to field only five officers dedicated to tracking sex offenders in the county, down from eight officers five years ago.
Last year, California's Sex Offender Management Board criticized the system as it stands in a 225-page assessment, highlighting failures in the collection and analysis of data on sex offenders. It's "difficult if not impossible" to track the effectiveness of registry laws, the report said.
Mr. Garrido, who allegedly kidnapped the 11-year-old girl in 1991, was considered high-risk because of a 1977 conviction for rape and kidnapping. But he received about the same number of visits from officers at his Antioch, Calif., home as the 200 or so other sex offenders in Antioch and adjacent Pittsburg, said the Contra Costa County Sheriff, even though many weren't convicted of violent offenses. During dozens of visits to Mr. Garrido's home, authorities never found the tents and shacks hidden behind a backyard fence.
The growing sex-offender list can dilute the amount of attention on the most dangerous offenders, said Nora Demleitner, the dean of Hofstra University Law School who studies sentencing. Some sex offenders "tend to be not dangerous at all," she said. "You have them register as sex offenders, so when you're law enforcement, all these people look the same. If you had much more focused sex-offender laws, maybe they would have been bothered to go into the shack" in Mr. Garrido's back yard.
California has been trying to sharpen its focus, but federal and state laws passed in 2006 offer conflicting rules for monitoring sex offenders, Ms. Neeley said.
Under its law, California has chosen to use a program called Static 99, which categorizes sex offenders based on their likelihood to reoffend. To predict risk, it looks at things like the nature of the crime, the offender's relationship with the victim and whether the offender has been able to form long-term intimate relationships. But the system hasn't been introduced by most local jurisdictions for those convicted before 2007.
Provisions in the federal Adam Walsh Act aim to move monitoring in the opposite direction, so that it's based solely on an offender's type of conviction, not on a complex assessment of risk.
That's problematic, said Jill Levenson, an associate professor at Lynn University in Florida who studies sex-offender registries, since it "overestimates risk for most people, and underestimates risk for people who pleaded down," or struck plea deals by admitting to lower-level crimes.
Now, the state Sex Offender Management Board is recommending that California forgo some federal funds and not adopt the law, which would add to the number of crimes requiring registration.
"There is no available evidence to indicate that expanding California's list of registerable crimes would promote public safety," the board wrote in a recommendation, noting the federal law would create at least $32 million in costs to the attorney general's office and law-enforcement agencies without improving the system.
Write to Ryan Knutson at ryan.knutson@wsj.com and Justin Scheck at justin.scheck@wsj.com
Sex-Registry Flaws Stand Out
By RYAN KNUTSON and JUSTIN SCHECK
The case of Phillip Garrido, who allegedly held Jaycee Dugard in his backyard for 18 years despite monthly law-enforcement visits, is forcing California officials to acknowledge a fundamental problem with the state's sex-offender registry: The list keeps expanding, while the number of officials who monitor sex offenders has grown at a much slower rate.
There are now so many people on the registry it's difficult for law enforcement to effectively track them all, and "it's more helpful for law enforcement to know...who the highest-risk offenders are," said Janet Neeley, a deputy California attorney general and member of the state's sex offender board.
A December study of roughly 20,000 registered sex offenders on parole in California found 9% posed a "high risk" of reoffending, and 29% posed a "moderate-high" to "high" risk, said Ms. Neeley. But law-enforcement officials and academics say vast resources are spent monitoring nonviolent offenders rather than keeping closer tabs on more-dangerous ones.
California's sex-offender registry has ballooned to more than 90,000 people now from about 45,000 in 1994, according to the California attorney general's office. Not only has the number of law-enforcement officers failed to keep pace, but recent state budget cuts have forced some local agencies to cut officers assigned to sex offenders, according to the California Commission on Peace Officer Standards and Training.
The Santa Clara County Sheriff's Office, for example, said funding cuts have forced it to field only five officers dedicated to tracking sex offenders in the county, down from eight officers five years ago.
Last year, California's Sex Offender Management Board criticized the system as it stands in a 225-page assessment, highlighting failures in the collection and analysis of data on sex offenders. It's "difficult if not impossible" to track the effectiveness of registry laws, the report said.
Mr. Garrido, who allegedly kidnapped the 11-year-old girl in 1991, was considered high-risk because of a 1977 conviction for rape and kidnapping. But he received about the same number of visits from officers at his Antioch, Calif., home as the 200 or so other sex offenders in Antioch and adjacent Pittsburg, said the Contra Costa County Sheriff, even though many weren't convicted of violent offenses. During dozens of visits to Mr. Garrido's home, authorities never found the tents and shacks hidden behind a backyard fence.
The growing sex-offender list can dilute the amount of attention on the most dangerous offenders, said Nora Demleitner, the dean of Hofstra University Law School who studies sentencing. Some sex offenders "tend to be not dangerous at all," she said. "You have them register as sex offenders, so when you're law enforcement, all these people look the same. If you had much more focused sex-offender laws, maybe they would have been bothered to go into the shack" in Mr. Garrido's back yard.
California has been trying to sharpen its focus, but federal and state laws passed in 2006 offer conflicting rules for monitoring sex offenders, Ms. Neeley said.
Under its law, California has chosen to use a program called Static 99, which categorizes sex offenders based on their likelihood to reoffend. To predict risk, it looks at things like the nature of the crime, the offender's relationship with the victim and whether the offender has been able to form long-term intimate relationships. But the system hasn't been introduced by most local jurisdictions for those convicted before 2007.
Provisions in the federal Adam Walsh Act aim to move monitoring in the opposite direction, so that it's based solely on an offender's type of conviction, not on a complex assessment of risk.
That's problematic, said Jill Levenson, an associate professor at Lynn University in Florida who studies sex-offender registries, since it "overestimates risk for most people, and underestimates risk for people who pleaded down," or struck plea deals by admitting to lower-level crimes.
Now, the state Sex Offender Management Board is recommending that California forgo some federal funds and not adopt the law, which would add to the number of crimes requiring registration.
"There is no available evidence to indicate that expanding California's list of registerable crimes would promote public safety," the board wrote in a recommendation, noting the federal law would create at least $32 million in costs to the attorney general's office and law-enforcement agencies without improving the system.
Write to Ryan Knutson at ryan.knutson@wsj.com and Justin Scheck at justin.scheck@wsj.com
Thursday, August 27, 2009
News Release: Faulty fire investigation led to execution
The following news report was written byu Jamie Stengle and published by the Associated Press on August 27, 2009.
Report: Faulty fire investigation led to execution
By JAMIE STENGLE (AP)
August 27, 2009
DALLAS — A fire investigation that led to the execution of a man in the deaths of his three young children was so seriously flawed that its conclusion of arson can't be supported, a fire expert hired by the state said in a new report.
In a report to the Texas Forensic Science Commission released Tuesday, Craig Beyler said the fire investigation in Cameron Todd Willingham's case didn't adhere to the standards of care in place at the time, nor to current standards.
Beyler, chairman of the London-based International Association for Fire Safety Science, said in the report that the opinions of a state fire official in the case were "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."
The commission, created in 2005 to review forensic misconduct allegations, requested the independent analysis after the Innocence Project submitted claims of questionable evidence in the cases of Willingham and another man who was convicted in a similar case but was later released.
Commission Chairman Sam Bassett called Beyler's report "a major step" in the panel's review of both cases.
Before issuing its final report, the commission will seek responses from the State Fire Marshal's Office and other parties, and will interview Beyler in October, Bassett said.
He said he expects the commission to release its report next spring.
Beyler said that in both cases, "The investigators had poor understandings of fire science ... Their methodologies did not comport with the scientific method or the process of elimination."
He said Manuel Vasquez, a deputy state fire marshal who investigated the Willingham case, appeared "wholly without any realistic understanding of fires and how fire injuries are created."
Beyler said witnesses contradicted Vasquez's arson hypothesis and that Vasquez admitted he had not eliminated other possible causes.
Eric Ferrero, spokesman for the Innocence Project, a New York-based organization dedicated to exonerating wrongfully convicted people, said Beyler's findings on the Willingham case "confirms what several experts have found over the last five years after reviewing thousands of pages of evidence."
"Every expert who has looked at this case has determined there was no reason to call it arson," he said.
Willingham, 36, was executed in 2004. He was convicted of setting the fire that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron two days before Christmas 1991 in their Corsicana home.
He told The Associated Press before his execution that he was innocent, calling his 1992 trial "a joke." "The most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake," he said.
Willingham's cousin, Patricia Cox, of Ardmore, Okla., said she has never doubted her cousin's innocence. Family members tried for years to free him.
"I would definitely like the state of Texas to take responsibility and admit in fact they wrongfully executed Todd Willingham," she said. "Is that going to happen? Probably not. I'm not optimistic."
Vasquez investigated the case with Douglas Fogg, the assistant Corsicana fire chief. The report said both cited burn patterns on the floor of the children's room, hallway and porch, indicating an accelerant spill. Beyler said those determinations have no basis in modern fire science.
Ben Gonzalez, a spokesman for the Texas Department of Insurance, of which the State Fire Marshal's Office is a part, said he had no comment on the report, adding that officials there had not yet seen it. He said Vasquez died in 1994.
A call to a Douglas Fogg in Corsicana was not immediately returned Wednesday.
In the other case cited in the report, Ernest Ray Willis was convicted in 1987 in a fatal house fire in Iraan, but was freed after 17 years on death row when a federal judge ruled that authorities concealed evidence and needlessly drugged him during his trial.
Report: Faulty fire investigation led to execution
By JAMIE STENGLE (AP)
August 27, 2009
DALLAS — A fire investigation that led to the execution of a man in the deaths of his three young children was so seriously flawed that its conclusion of arson can't be supported, a fire expert hired by the state said in a new report.
In a report to the Texas Forensic Science Commission released Tuesday, Craig Beyler said the fire investigation in Cameron Todd Willingham's case didn't adhere to the standards of care in place at the time, nor to current standards.
Beyler, chairman of the London-based International Association for Fire Safety Science, said in the report that the opinions of a state fire official in the case were "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."
The commission, created in 2005 to review forensic misconduct allegations, requested the independent analysis after the Innocence Project submitted claims of questionable evidence in the cases of Willingham and another man who was convicted in a similar case but was later released.
Commission Chairman Sam Bassett called Beyler's report "a major step" in the panel's review of both cases.
Before issuing its final report, the commission will seek responses from the State Fire Marshal's Office and other parties, and will interview Beyler in October, Bassett said.
He said he expects the commission to release its report next spring.
Beyler said that in both cases, "The investigators had poor understandings of fire science ... Their methodologies did not comport with the scientific method or the process of elimination."
He said Manuel Vasquez, a deputy state fire marshal who investigated the Willingham case, appeared "wholly without any realistic understanding of fires and how fire injuries are created."
Beyler said witnesses contradicted Vasquez's arson hypothesis and that Vasquez admitted he had not eliminated other possible causes.
Eric Ferrero, spokesman for the Innocence Project, a New York-based organization dedicated to exonerating wrongfully convicted people, said Beyler's findings on the Willingham case "confirms what several experts have found over the last five years after reviewing thousands of pages of evidence."
"Every expert who has looked at this case has determined there was no reason to call it arson," he said.
Willingham, 36, was executed in 2004. He was convicted of setting the fire that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron two days before Christmas 1991 in their Corsicana home.
He told The Associated Press before his execution that he was innocent, calling his 1992 trial "a joke." "The most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake," he said.
Willingham's cousin, Patricia Cox, of Ardmore, Okla., said she has never doubted her cousin's innocence. Family members tried for years to free him.
"I would definitely like the state of Texas to take responsibility and admit in fact they wrongfully executed Todd Willingham," she said. "Is that going to happen? Probably not. I'm not optimistic."
Vasquez investigated the case with Douglas Fogg, the assistant Corsicana fire chief. The report said both cited burn patterns on the floor of the children's room, hallway and porch, indicating an accelerant spill. Beyler said those determinations have no basis in modern fire science.
Ben Gonzalez, a spokesman for the Texas Department of Insurance, of which the State Fire Marshal's Office is a part, said he had no comment on the report, adding that officials there had not yet seen it. He said Vasquez died in 1994.
A call to a Douglas Fogg in Corsicana was not immediately returned Wednesday.
In the other case cited in the report, Ernest Ray Willis was convicted in 1987 in a fatal house fire in Iraan, but was freed after 17 years on death row when a federal judge ruled that authorities concealed evidence and needlessly drugged him during his trial.
Tuesday, August 11, 2009
LA Times Editorial: Wrongful convictions: California is guilty of injustice
The following editorial was originally published by the Los Angeles Times on August 11, 2009.
Editorial
Wrongful convictions: California is guilty of injustice
The Bruce Lisker case is a reminder that state officials have made little progress in dealing with the problem.
Twenty-four years after being sent to prison for murder, Bruce Lisker has finally had his conviction overturned. In her ruling Friday, U.S. District Judge Virginia A. Phillips concluded that Lisker, a San Fernando man who was serving a life sentence for the murder of his 66-year-old mother, had been convicted as a result of "false evidence" and inadequate representation by his attorney.
The judge's findings matched those of Times reporters Scott Glover and Matt Lait, who four years ago retraced the police investigation and found significant errors. On Monday, Phillips said she intended to release Lisker on bail while prosecutors decided whether to appeal her decision, retry Lisker or drop the case against him.
The case is deeply disturbing; there is strong reason to fear that an innocent man spent more than two decades behind bars. What is certain is that Lisker, who was a troubled 17-year-old at the time of his mother's murder, did not get a fair shake at his trial. Even if he does eventually go free, the righting of this one wrong is not reason to celebrate.
What's even more disturbing is that such miscarriages of justice are being uncovered with troubling regularity these days, especially now that DNA evidence is being used to reopen old cases. The public appears to be shocked with each new revelation, but perhaps it is time to get over that. The truth is that this is an ongoing problem in California. And thanks to knee-jerk obstruction by district attorneys and Gov. Arnold Schwarzenegger, the state has made little progress in fixing it.
Last year, the California Commission on the Fair Administration of Justice issued a 196-page report outlining procedural and structural flaws in the state's criminal justice system, along with recommendations to ameliorate them. The Legislature responded by passing bills in 2006 and 2007 regarding eyewitness identification and the video recording of police interrogations, but Schwarzenegger vetoed both. Legislation regulating the use of jailhouse informants passed as well, but met the same fate as did a bill increasing compensation for wrongfully convicted people.
The state's unwillingness to provide meaningful compensation and social services to help the wrongly convicted is particularly galling; it means that even if he is set free, Lisker's only compensation may be a handshake and $200. And don't count on the handshake.
Given California's unwillingness to take the necessary steps to reduce wrongful convictions -- or to pay the price when it errs -- it's a sure bet we'll be hearing about more Bruce Liskers. Perhaps next time we won't be so shocked.
Editorial
Wrongful convictions: California is guilty of injustice
The Bruce Lisker case is a reminder that state officials have made little progress in dealing with the problem.
Twenty-four years after being sent to prison for murder, Bruce Lisker has finally had his conviction overturned. In her ruling Friday, U.S. District Judge Virginia A. Phillips concluded that Lisker, a San Fernando man who was serving a life sentence for the murder of his 66-year-old mother, had been convicted as a result of "false evidence" and inadequate representation by his attorney.
The judge's findings matched those of Times reporters Scott Glover and Matt Lait, who four years ago retraced the police investigation and found significant errors. On Monday, Phillips said she intended to release Lisker on bail while prosecutors decided whether to appeal her decision, retry Lisker or drop the case against him.
The case is deeply disturbing; there is strong reason to fear that an innocent man spent more than two decades behind bars. What is certain is that Lisker, who was a troubled 17-year-old at the time of his mother's murder, did not get a fair shake at his trial. Even if he does eventually go free, the righting of this one wrong is not reason to celebrate.
What's even more disturbing is that such miscarriages of justice are being uncovered with troubling regularity these days, especially now that DNA evidence is being used to reopen old cases. The public appears to be shocked with each new revelation, but perhaps it is time to get over that. The truth is that this is an ongoing problem in California. And thanks to knee-jerk obstruction by district attorneys and Gov. Arnold Schwarzenegger, the state has made little progress in fixing it.
Last year, the California Commission on the Fair Administration of Justice issued a 196-page report outlining procedural and structural flaws in the state's criminal justice system, along with recommendations to ameliorate them. The Legislature responded by passing bills in 2006 and 2007 regarding eyewitness identification and the video recording of police interrogations, but Schwarzenegger vetoed both. Legislation regulating the use of jailhouse informants passed as well, but met the same fate as did a bill increasing compensation for wrongfully convicted people.
The state's unwillingness to provide meaningful compensation and social services to help the wrongly convicted is particularly galling; it means that even if he is set free, Lisker's only compensation may be a handshake and $200. And don't count on the handshake.
Given California's unwillingness to take the necessary steps to reduce wrongful convictions -- or to pay the price when it errs -- it's a sure bet we'll be hearing about more Bruce Liskers. Perhaps next time we won't be so shocked.
Sunday, August 09, 2009
Guest Shot: Once rock-solid child abuse signs now uncertain
The following op-ed was originally published on August 7, 2009 in the Las Vegas Sun.
Once rock-solid child abuse signs now uncertain
By Abigail Goldman
Friday, Aug. 7, 2009
Audrey Edmunds was charged with murdering an infant in her Wisconsin day care center in 1995. At trial, medical experts testified the child’s injuries were pathognomonic — meaning exclusively characteristic — of shaken baby syndrome: retinal bleeding, brain bleeding and brain swelling, conditions sometimes called “the triad.”
Edmunds pleaded not guilty, went to prison and remained there until last year when her conviction was overturned. A court ruled medical and scientific opinions on shaken baby syndrome had changed so much that a new jury might have reasonable doubt about Edmunds’ guilt.
In fact, one of the doctors who initially testified against Edmunds told the judge he was no longer certain she shook the child.
This is a remarkable development, not just for the accused, but for thousands similarly charged. It’s also, some argue, an indication the legal system lags the science. If one-time medical certainties have been undermined, then why are an estimated 95 percent of people prosecuted on the basis of shaken baby syndrome symptoms still being convicted? Was Edmunds an exception to the rule, or has the science expanded such that other wrongly accused people must now be freed, like death row inmates in the wake of DNA evidence?
As is true just about everywhere, the revelation of the Edmunds case has yet to fully play out in Nevada’s courts.
What remains clear, though, is that absent witnesses, shaken baby syndrome is a medical diagnosis of homicide. The victim’s injuries are the evidence, which is complicated when our understanding of those injuries changes. It’s now understood that the triad may indicate something other than child abuse. Some scientists say short falls can cause retinal or brain bleeding. Some doctors say medical disorders, such as blood or infectious diseases, mimic parts of the triad.
And even if it were possible to prove shaking occurred, techniques used to identify who did it may be flawed. Usually, it’s the last person with the baby who is accused of shaking the child. The belief is such violence quickly renders a victim unconscious or worse.
But new studies suggest children who suffer fatal head trauma can appear lucid for up to 72 hours before death. This expanded time line raises a serious question: Did the trauma happen a day or two earlier?
In recent years physicians have replaced “shaken baby syndrome” with other phrases — “abusive head trauma,” for example. The Clark County coroner prefers “blunt force trauma” or “inflicted abusive injuries.” These changes reflect an expanded understanding of the injury, although some note that replacing too-rigid definitions with loose phraseology isn’t really a refinement.
Although the media are raising questions in the wake of a recent study by DePaul University law professor Deborah Tuerkheimer, Clark County Medical Examiner Alane Olson notes that the debate has been ongoing for some time. What is different is Edmunds’ story. Observers such as Tuerkheimer hope it forces the justice system and well-meaning people eager to identify child abusers to recognize their absolutes may be eroding.
Clark County Deputy Public Defender Scott Coffee has been handling “inflicted abusive injury” cases for about eight years, but only gets one about every 18 months. He has never taken one to trial. The defendants usually strike a plea bargain with prosecutors.
Shaken baby syndrome is a loaded issue and the new research is far from perfect. Experts who testify against shaken baby syndrome diagnoses are ostracized and outnumbered by those who defend them, even when there is evidence to the contrary, Coffee says. Defendants would rather spend a few years than risk a lifetime in prison.
Those convictions, Coffee says, even the no contest pleas, where defendants admit nothing, are seen as proof of guilt, when all we really know is that at least one tragedy occurred — and maybe two.
Once rock-solid child abuse signs now uncertain
By Abigail Goldman
Friday, Aug. 7, 2009
Audrey Edmunds was charged with murdering an infant in her Wisconsin day care center in 1995. At trial, medical experts testified the child’s injuries were pathognomonic — meaning exclusively characteristic — of shaken baby syndrome: retinal bleeding, brain bleeding and brain swelling, conditions sometimes called “the triad.”
Edmunds pleaded not guilty, went to prison and remained there until last year when her conviction was overturned. A court ruled medical and scientific opinions on shaken baby syndrome had changed so much that a new jury might have reasonable doubt about Edmunds’ guilt.
In fact, one of the doctors who initially testified against Edmunds told the judge he was no longer certain she shook the child.
This is a remarkable development, not just for the accused, but for thousands similarly charged. It’s also, some argue, an indication the legal system lags the science. If one-time medical certainties have been undermined, then why are an estimated 95 percent of people prosecuted on the basis of shaken baby syndrome symptoms still being convicted? Was Edmunds an exception to the rule, or has the science expanded such that other wrongly accused people must now be freed, like death row inmates in the wake of DNA evidence?
As is true just about everywhere, the revelation of the Edmunds case has yet to fully play out in Nevada’s courts.
What remains clear, though, is that absent witnesses, shaken baby syndrome is a medical diagnosis of homicide. The victim’s injuries are the evidence, which is complicated when our understanding of those injuries changes. It’s now understood that the triad may indicate something other than child abuse. Some scientists say short falls can cause retinal or brain bleeding. Some doctors say medical disorders, such as blood or infectious diseases, mimic parts of the triad.
And even if it were possible to prove shaking occurred, techniques used to identify who did it may be flawed. Usually, it’s the last person with the baby who is accused of shaking the child. The belief is such violence quickly renders a victim unconscious or worse.
But new studies suggest children who suffer fatal head trauma can appear lucid for up to 72 hours before death. This expanded time line raises a serious question: Did the trauma happen a day or two earlier?
In recent years physicians have replaced “shaken baby syndrome” with other phrases — “abusive head trauma,” for example. The Clark County coroner prefers “blunt force trauma” or “inflicted abusive injuries.” These changes reflect an expanded understanding of the injury, although some note that replacing too-rigid definitions with loose phraseology isn’t really a refinement.
Although the media are raising questions in the wake of a recent study by DePaul University law professor Deborah Tuerkheimer, Clark County Medical Examiner Alane Olson notes that the debate has been ongoing for some time. What is different is Edmunds’ story. Observers such as Tuerkheimer hope it forces the justice system and well-meaning people eager to identify child abusers to recognize their absolutes may be eroding.
Clark County Deputy Public Defender Scott Coffee has been handling “inflicted abusive injury” cases for about eight years, but only gets one about every 18 months. He has never taken one to trial. The defendants usually strike a plea bargain with prosecutors.
Shaken baby syndrome is a loaded issue and the new research is far from perfect. Experts who testify against shaken baby syndrome diagnoses are ostracized and outnumbered by those who defend them, even when there is evidence to the contrary, Coffee says. Defendants would rather spend a few years than risk a lifetime in prison.
Those convictions, Coffee says, even the no contest pleas, where defendants admit nothing, are seen as proof of guilt, when all we really know is that at least one tragedy occurred — and maybe two.
Tuesday, August 04, 2009
Guest Shot: Forensic science institute could spare future victims
The following op-ed article was published in the Houston Chronicle on July 31, 2009.
Forensic science institute could spare future victims
By MICHELLE MALLIN
HOUSTON CHRONICLE
July 31, 2009, 9:02PM
It's been more than two decades, but it is still as fresh and as vivid in my mind as it was that night in 1985.
I was a sophomore at Texas Tech, coming back to my dorm on a Sunday night after visiting my family. A man forced his way into my car and put a knife to my throat. He pushed me into the passenger seat, began to drive, and told me he would kill me if I didn't stop screaming. I believed him. He drove to a field in a remote part of town, where he raped me.
Later, I learned that I was the fifth victim of a serial rapist on campus. A man named Timothy Cole was convicted of raping me and sentenced to 25 years in prison. I was relieved that he had been apprehended, that he would pay for what he did to me, and that our criminal justice system had gotten him off the streets. But I also knew my life would never be the same again. I spent years in counseling and tried to move on with my life.
Then, last summer, I was forced to relive the entire nightmare — this time with the added tragedy of knowing that Timothy Cole had been innocent and died in prison before he could be exonerated. New DNA testing proved that another man, not Cole, raped me. I was stunned. And I was determined to get answers.
I put my faith in the criminal justice system, and it failed me. I am back in counseling to grapple with the renewed trauma of the rape and the knowledge that I played a role in Cole's wrongful conviction by identifying him as the man who attacked me.
I have learned a great deal over the last year — about myself, about Cole and about our system of justice. One of the most troubling things I've learned is that juries often hear evidence that is not as solid as it sounds.
In case after case, scientists testify that a hair from a crime scene is similar to the defendant's hair, or that markings on a bullet match a particular gun. These and other forms of forensic science can be persuasive to a jury, but nobody knows how accurate the science is (including the forensic analyst who conducted the tests).
Earlier this year, the National Academy of Sciences released a major report finding serious problems with much of the forensic science that our criminal justice system uses every day. The report urged Congress to create a National Institute of Forensic Science to oversee research that can determine how accurate these scientific disciplines are, set standards for what kind of science should be used and how it should be presented, and oversee the enforcement of those standards.
I hope Congress takes action on this soon, and I hope members of the House and Senate from Texas take the lead, in the name of everyone in our state who has been touched by this issue.
Cole and I weren't the only ones whose lives were forever changed by what happened in 1985. We now know, through DNA testing and his own confession, that Jerry Wayne Johnson raped me. After Cole was convicted, Johnson abducted a couple and raped the woman in a cotton field. When he was out on bond awaiting trial for that rape, he raped a 15-year old girl at knifepoint.
Eventually, Johnson was convicted for those crimes. But they could have been prevented entirely if he had been apprehended after he raped me. It's hard for me to think about that woman and her husband, or that 15-year-old girl. I know what they went through — and, today, we know that they could have been spared the unspeakable horror.
We need to make sure our criminal justice system uses reliable, solid evidence to accurately identify suspects and convict criminals. Right now, forensic science is badly lacking, but creating a National Institute of Forensic Science can start to change that. The stakes are too high to do anything less.
Mallin was born in Houston and raised in Baytown. She resides in Baytown with her husband of 19 years, Jim Mallin.
Forensic science institute could spare future victims
By MICHELLE MALLIN
HOUSTON CHRONICLE
July 31, 2009, 9:02PM
It's been more than two decades, but it is still as fresh and as vivid in my mind as it was that night in 1985.
I was a sophomore at Texas Tech, coming back to my dorm on a Sunday night after visiting my family. A man forced his way into my car and put a knife to my throat. He pushed me into the passenger seat, began to drive, and told me he would kill me if I didn't stop screaming. I believed him. He drove to a field in a remote part of town, where he raped me.
Later, I learned that I was the fifth victim of a serial rapist on campus. A man named Timothy Cole was convicted of raping me and sentenced to 25 years in prison. I was relieved that he had been apprehended, that he would pay for what he did to me, and that our criminal justice system had gotten him off the streets. But I also knew my life would never be the same again. I spent years in counseling and tried to move on with my life.
Then, last summer, I was forced to relive the entire nightmare — this time with the added tragedy of knowing that Timothy Cole had been innocent and died in prison before he could be exonerated. New DNA testing proved that another man, not Cole, raped me. I was stunned. And I was determined to get answers.
I put my faith in the criminal justice system, and it failed me. I am back in counseling to grapple with the renewed trauma of the rape and the knowledge that I played a role in Cole's wrongful conviction by identifying him as the man who attacked me.
I have learned a great deal over the last year — about myself, about Cole and about our system of justice. One of the most troubling things I've learned is that juries often hear evidence that is not as solid as it sounds.
In case after case, scientists testify that a hair from a crime scene is similar to the defendant's hair, or that markings on a bullet match a particular gun. These and other forms of forensic science can be persuasive to a jury, but nobody knows how accurate the science is (including the forensic analyst who conducted the tests).
Earlier this year, the National Academy of Sciences released a major report finding serious problems with much of the forensic science that our criminal justice system uses every day. The report urged Congress to create a National Institute of Forensic Science to oversee research that can determine how accurate these scientific disciplines are, set standards for what kind of science should be used and how it should be presented, and oversee the enforcement of those standards.
I hope Congress takes action on this soon, and I hope members of the House and Senate from Texas take the lead, in the name of everyone in our state who has been touched by this issue.
Cole and I weren't the only ones whose lives were forever changed by what happened in 1985. We now know, through DNA testing and his own confession, that Jerry Wayne Johnson raped me. After Cole was convicted, Johnson abducted a couple and raped the woman in a cotton field. When he was out on bond awaiting trial for that rape, he raped a 15-year old girl at knifepoint.
Eventually, Johnson was convicted for those crimes. But they could have been prevented entirely if he had been apprehended after he raped me. It's hard for me to think about that woman and her husband, or that 15-year-old girl. I know what they went through — and, today, we know that they could have been spared the unspeakable horror.
We need to make sure our criminal justice system uses reliable, solid evidence to accurately identify suspects and convict criminals. Right now, forensic science is badly lacking, but creating a National Institute of Forensic Science can start to change that. The stakes are too high to do anything less.
Mallin was born in Houston and raised in Baytown. She resides in Baytown with her husband of 19 years, Jim Mallin.
Friday, July 31, 2009
Guest Shot: Hidden Evidence
The following editorial was originally published in the print edition of The Economist on July 30, 2009.
Hidden evidence
DNA is changing the way America fights crime, not its policies towards convicts
A JUDGE can tell prospective jurors that in a criminal trial, unlike an episode of “CSI: Crime Scene Investigation”, scientific evidence is not necessary to secure a conviction, an appeals court in Baltimore ruled on July 7th. Quite right, too. The evidence submitted in real courts is often not as cut-and-dried as it seems on television. Yet the use of DNA to secure convictions is growing fast. The people not benefiting from this are those who may have been wrongfully convicted before DNA was routinely examined, and who are being denied access to evidence that could set them free.
Much is being made of a recent Supreme Court ruling that William Osborne, a prisoner in Alaska, has no constitutional right to DNA testing to prove his innocence of the 1994 rape for which he was convicted and jailed. Nina Morrison of the Innocence Project, a New York-based non-profit legal outfit that represents Mr Osborne, fears the decision could lead to many innocent prisoners remaining in jail—or even facing execution.
Since Congress passed the DNA Fingerprint Act in 2005, federal authorities have been collecting DNA samples from everyone they arrest or detain. The FBI’s national DNA database (NDIS) gets more than 1m DNA profiles a year. By last May CODIS, an FBI index that compares forensic evidence at local, state and national level, resulted in 90,900 “cold hits”, where biological evidence from an unsolved crime matches a profile in the database. This has led to many arrests and convictions.
But three states (Alaska, Massachusetts and Oklahoma) give prisoners no statutory rights to a DNA test, even though such a test might exonerate them. Though exonerations have occurred in Massachusetts and Oklahoma by way of appeals from defence attorneys, access to testing is still hard to get. Many other states allow testing only in limited circumstances. Kentucky, for instance, restricts its DNA testing to death-row inmates. Someone serving a life sentence is not eligible.
Texas and Illinois, whose laws do permit simple post-conviction access to testing, boast the highest number of convictions that have been overturned thanks to DNA evidence: 38 and 29 respectively, says the Innocence Project. Texas, which accounts for half of all executions in America, passed a bill in May establishing the Timothy Cole Advisory Panel on Wrongful Convictions, named after a man posthumously exonerated through DNA testing. A team set up to study the causes of wrongful convictions and to devise ways of preventing them is to report to the governor no later than 2011.
Prosecutors can use their state’s statutes of limitations (which set time limits for the introduction of new evidence after sentencing) to decline prisoners’ requests for DNA testing. They argue that cases could be strung along endlessly and expensively by frivolous appeals if there are no such limits. Yet this seems a weak argument when it comes to DNA, which might establish innocence or guilt without much scope for prolonged debate.
Many prisoners might be cleared were DNA testing more routinely available. The American legal system encourages plea bargains, whereby accused people accept a much lower sentence than would be imposed if they were found guilty. In the absence of the DNA evidence that would clear them, even innocent people may conclude that a plea bargain is the safer option. More than 90% of convictions in the United States result from such bargains.
Steven Benjamin of the National Association of Criminal Defense Lawyers contends that the restrictions on post-conviction testing amount to a fear of the truth. He may be right.
Hidden evidence
DNA is changing the way America fights crime, not its policies towards convicts
A JUDGE can tell prospective jurors that in a criminal trial, unlike an episode of “CSI: Crime Scene Investigation”, scientific evidence is not necessary to secure a conviction, an appeals court in Baltimore ruled on July 7th. Quite right, too. The evidence submitted in real courts is often not as cut-and-dried as it seems on television. Yet the use of DNA to secure convictions is growing fast. The people not benefiting from this are those who may have been wrongfully convicted before DNA was routinely examined, and who are being denied access to evidence that could set them free.
Much is being made of a recent Supreme Court ruling that William Osborne, a prisoner in Alaska, has no constitutional right to DNA testing to prove his innocence of the 1994 rape for which he was convicted and jailed. Nina Morrison of the Innocence Project, a New York-based non-profit legal outfit that represents Mr Osborne, fears the decision could lead to many innocent prisoners remaining in jail—or even facing execution.
Since Congress passed the DNA Fingerprint Act in 2005, federal authorities have been collecting DNA samples from everyone they arrest or detain. The FBI’s national DNA database (NDIS) gets more than 1m DNA profiles a year. By last May CODIS, an FBI index that compares forensic evidence at local, state and national level, resulted in 90,900 “cold hits”, where biological evidence from an unsolved crime matches a profile in the database. This has led to many arrests and convictions.
But three states (Alaska, Massachusetts and Oklahoma) give prisoners no statutory rights to a DNA test, even though such a test might exonerate them. Though exonerations have occurred in Massachusetts and Oklahoma by way of appeals from defence attorneys, access to testing is still hard to get. Many other states allow testing only in limited circumstances. Kentucky, for instance, restricts its DNA testing to death-row inmates. Someone serving a life sentence is not eligible.
Texas and Illinois, whose laws do permit simple post-conviction access to testing, boast the highest number of convictions that have been overturned thanks to DNA evidence: 38 and 29 respectively, says the Innocence Project. Texas, which accounts for half of all executions in America, passed a bill in May establishing the Timothy Cole Advisory Panel on Wrongful Convictions, named after a man posthumously exonerated through DNA testing. A team set up to study the causes of wrongful convictions and to devise ways of preventing them is to report to the governor no later than 2011.
Prosecutors can use their state’s statutes of limitations (which set time limits for the introduction of new evidence after sentencing) to decline prisoners’ requests for DNA testing. They argue that cases could be strung along endlessly and expensively by frivolous appeals if there are no such limits. Yet this seems a weak argument when it comes to DNA, which might establish innocence or guilt without much scope for prolonged debate.
Many prisoners might be cleared were DNA testing more routinely available. The American legal system encourages plea bargains, whereby accused people accept a much lower sentence than would be imposed if they were found guilty. In the absence of the DNA evidence that would clear them, even innocent people may conclude that a plea bargain is the safer option. More than 90% of convictions in the United States result from such bargains.
Steven Benjamin of the National Association of Criminal Defense Lawyers contends that the restrictions on post-conviction testing amount to a fear of the truth. He may be right.
Wednesday, July 29, 2009
Guest Shot - You're Probably a Federal Criminal
The following editorial by Brian W. Walsh was originally broadcast on Fox News on July 21, 2009.
You're (Probably) a Federal Criminal
Federal law now criminalizes activities that the average person would never dream would land him in prison. Consequently, every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law and end up serving time in federal prison.
With all the attention that's been paid lately to long federal sentences for drug offenders, it's surprising that a far more troubling phenomenon has barely hit the media's radar screen. Every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law or regulation and end up serving time in federal prison.
What is especially disturbing is that it could happen to anyone at all -- and it has.
We should applaud Reps. Bobby Scott (D-Va.) and Louie Gohmert (R-Texas), then, for holding a bipartisan hearing today to examine how federal law can make a criminal out of anyone, for even the most mundane conduct.
Federal law in particular now criminalizes entire categories of activities that the average person would never dream would land him in prison. This is an inevitable result of the fact that the criminal law is no longer restricted to punishing inherently wrongful conduct -- such as murder, rape, robbery, and the like.
Moreover, under these new laws, the government can often secure a conviction without having to prove that the person accused even intended to commit a bad act, historically a protection against wrongful conviction.
Laws like this are dangerous in the hands of social engineers and ambitious lawmakers -- not to mention overzealous prosecutors -- bent on using government's greatest civilian power to punish any activity they dislike. So many thousands of criminal offenses are now in federal law that a prominent federal appeals court judge titled his recent essay on this overcriminalization problem, "You're (Probably) a Federal Criminal."
Consider small-time inventor and entrepreneur Krister Evertson, who will testify at today's hearing. Krister never had so much as a traffic ticket before he was run off the road near his mother's home in Wasilla, Alaska, by SWAT-armored federal agents in large black SUVs training automatic weapons on him.
Evertson, who had been working on clean-energy fuel cells since he was in high school, had no idea what he'd done wrong. It turned out that when he legally sold some sodium (part of his fuel-cell materials) to raise cash, he forgot to put a federally mandated safety sticker on the UPS package he sent to the lawful purchaser.
Krister's lack of a criminal record did nothing to prevent federal agents from ransacking his mother's home in their search for evidence on this oh-so-dangerous criminal.
The good news is that a federal jury in Alaska acquitted Krister of all charges. The jurors saw through the charges and realized that Krister had done nothing wrong.
The bad news, however, is that the feds apparently had it in for Krister. Federal criminal law is so broad that it gave prosecutors a convenient vehicle to use to get their man.
Two years after arresting him, the feds brought an entirely new criminal prosecution against Krister on entirely new grounds. They used the fact that before Krister moved back to Wasilla to care for his 80-year-old mother, he had safely and securely stored all of his fuel-cell materials in Salmon, Idaho.
According to the government, when Krister was in jail in Alaska due to the first unjust charges, he had "abandoned" his fuel-cell materials in Idaho. Unfortunately for Krister, federal lawmakers had included in the Resource Recovery and Conservation Act a provision making it a crime to abandon "hazardous waste." According to the trial judge, the law didn't require prosecutors to prove that Krister had intended to abandon the materials (he hadn't) or that they were waste at all -- in reality, they were quite valuable and properly stored away for future use.
With such a broad law, the second jury didn't have much of a choice, and it convicted him. He spent almost two years locked up with real criminals in a federal prison. After he testifies today, he will have to return to his halfway house in Idaho and serve another week before he is released.
The other hardened criminal whose story members of Congress will hear today is retiree George Norris. A longtime resident of Spring, Texas, Norris made the mistake of not knowing and keeping track of all of the details of federal and international law on endangered species -- mostly paperwork requirements -- before he decided to turn his orchid hobby into a small business. What was Norris's goal? To earn a little investment income while his wife neared retirement.
The Lacey Act is an example of the dangerous overbreadth of federal criminal law. Incredibly, Congress has made it a federal crime to violate any fish or wildlife law or regulation of any nation on earth.
Facing 10 years in federal prison, Norris pled guilty and served almost two. His wife, Kathy, describes the pain of losing their life savings to pay for attorneys and trying to explain to grandchildren why for so long Poppa George couldn't see them.
Federal criminal law did not get so badly broken overnight, and it will take hard work to get it fixed. It is encouraging that members of Congress such as Reps. Scott and Gohmert are now paying attention to the toll overcriminalization takes on ordinary Americans. Congress needs to begin fixing the damage it has done by starting to restore a more reasonable, limited and just federal criminal law. Today's hearing is an excellent first step.
Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation (heritage.org).
You're (Probably) a Federal Criminal
Federal law now criminalizes activities that the average person would never dream would land him in prison. Consequently, every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law and end up serving time in federal prison.
With all the attention that's been paid lately to long federal sentences for drug offenders, it's surprising that a far more troubling phenomenon has barely hit the media's radar screen. Every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law or regulation and end up serving time in federal prison.
What is especially disturbing is that it could happen to anyone at all -- and it has.
We should applaud Reps. Bobby Scott (D-Va.) and Louie Gohmert (R-Texas), then, for holding a bipartisan hearing today to examine how federal law can make a criminal out of anyone, for even the most mundane conduct.
Federal law in particular now criminalizes entire categories of activities that the average person would never dream would land him in prison. This is an inevitable result of the fact that the criminal law is no longer restricted to punishing inherently wrongful conduct -- such as murder, rape, robbery, and the like.
Moreover, under these new laws, the government can often secure a conviction without having to prove that the person accused even intended to commit a bad act, historically a protection against wrongful conviction.
Laws like this are dangerous in the hands of social engineers and ambitious lawmakers -- not to mention overzealous prosecutors -- bent on using government's greatest civilian power to punish any activity they dislike. So many thousands of criminal offenses are now in federal law that a prominent federal appeals court judge titled his recent essay on this overcriminalization problem, "You're (Probably) a Federal Criminal."
Consider small-time inventor and entrepreneur Krister Evertson, who will testify at today's hearing. Krister never had so much as a traffic ticket before he was run off the road near his mother's home in Wasilla, Alaska, by SWAT-armored federal agents in large black SUVs training automatic weapons on him.
Evertson, who had been working on clean-energy fuel cells since he was in high school, had no idea what he'd done wrong. It turned out that when he legally sold some sodium (part of his fuel-cell materials) to raise cash, he forgot to put a federally mandated safety sticker on the UPS package he sent to the lawful purchaser.
Krister's lack of a criminal record did nothing to prevent federal agents from ransacking his mother's home in their search for evidence on this oh-so-dangerous criminal.
The good news is that a federal jury in Alaska acquitted Krister of all charges. The jurors saw through the charges and realized that Krister had done nothing wrong.
The bad news, however, is that the feds apparently had it in for Krister. Federal criminal law is so broad that it gave prosecutors a convenient vehicle to use to get their man.
Two years after arresting him, the feds brought an entirely new criminal prosecution against Krister on entirely new grounds. They used the fact that before Krister moved back to Wasilla to care for his 80-year-old mother, he had safely and securely stored all of his fuel-cell materials in Salmon, Idaho.
According to the government, when Krister was in jail in Alaska due to the first unjust charges, he had "abandoned" his fuel-cell materials in Idaho. Unfortunately for Krister, federal lawmakers had included in the Resource Recovery and Conservation Act a provision making it a crime to abandon "hazardous waste." According to the trial judge, the law didn't require prosecutors to prove that Krister had intended to abandon the materials (he hadn't) or that they were waste at all -- in reality, they were quite valuable and properly stored away for future use.
With such a broad law, the second jury didn't have much of a choice, and it convicted him. He spent almost two years locked up with real criminals in a federal prison. After he testifies today, he will have to return to his halfway house in Idaho and serve another week before he is released.
The other hardened criminal whose story members of Congress will hear today is retiree George Norris. A longtime resident of Spring, Texas, Norris made the mistake of not knowing and keeping track of all of the details of federal and international law on endangered species -- mostly paperwork requirements -- before he decided to turn his orchid hobby into a small business. What was Norris's goal? To earn a little investment income while his wife neared retirement.
The Lacey Act is an example of the dangerous overbreadth of federal criminal law. Incredibly, Congress has made it a federal crime to violate any fish or wildlife law or regulation of any nation on earth.
Facing 10 years in federal prison, Norris pled guilty and served almost two. His wife, Kathy, describes the pain of losing their life savings to pay for attorneys and trying to explain to grandchildren why for so long Poppa George couldn't see them.
Federal criminal law did not get so badly broken overnight, and it will take hard work to get it fixed. It is encouraging that members of Congress such as Reps. Scott and Gohmert are now paying attention to the toll overcriminalization takes on ordinary Americans. Congress needs to begin fixing the damage it has done by starting to restore a more reasonable, limited and just federal criminal law. Today's hearing is an excellent first step.
Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation (heritage.org).
Friday, July 10, 2009
Guest Shot: Judge Sonia Sotomayor Denied My Appeal and I Spent 16 Years in Prison For a Crime I Didn't Commit
The following was originally published at www.alternet.org on July 10, 2009.
Sotomayor put procedure over innocence as a federal judge.
My name is Jeffrey Deskovic. At age 17, I was wrongfully convicted of murder and rape, a conviction that was based upon a coerced, false confession, the fabrication of evidence, prosecutorial misconduct and fraud by a medical examiner. I was cleared 16 years later -- almost three years ago -- when DNA evidence proved my innocence, while also identifying the real perpetrator, who subsequently confessed to the crime. Since my release, I have made it my life's mission to battle against wrongful convictions and fight for legislation that would minimize the chances of what happened to me happening to someone else. It is this fight that compels me to speak out about Supreme Court nominee Sonia Sotomayor.
Before I was exonerated, I sought out every legal avenue I could to win my freedom. I defended my innocence before the New York Appellate Division, raising such proof as the fact that the physical evidence found did not match me and arguing that the police violated my rights by coercing a false confession from me at the age of 16. The court ruled against me 5 to 0, concluding that there was nothing wrong with my interrogation and stating that there was "overwhelming evidence of guilt," despite the fact that there was no evidence beyond my forced confession. In truth, the DNA and the hairs found on the victim's body were evidence of my innocence.
When my lawyer was denied a chance to reargue the case on the grounds that the court's decision ran counter to the law and to the facts, we moved to the Court Of Appeals, the highest court in New York. I filed a Writ Of Habeas Corpus, in which I argued that my conviction was a violation of the U.S. Constitution. The year was 1997. The year before, Congress had passed Bill Clinton's Anti-Terrorism-Effective-Death-Penalty Act (often called AEDPA in legalese), which mandated that from then on, all state prisoners would have only one year to appeal to a federal court after being denied an appeal by their state's highest court. As a result, there was some confusion in the federal courts regarding the filing procedure; it was not clear how this new law would apply to cases already in the system. Different jurisdictions were answering the question in different ways; my lawyer called the court clerk and asked whether it was enough that my petition be post-marked on the due date, or if it had to physically be filed and in the building on the due date. The court clerk told my attorney that it was enough that it be postmarked. That information turned out to be false. Consequently, my petition arrived four days too late.
Westchester District Attorney Jeanine Pirro seized on the late petition, arguing that the court should dismiss my case without even considering my innocence claim. The court sided agreed. I then appealed my case to the 2nd Circuit. It was there that I first met Judge Sonia Sotomayor.
My lawyer gave three reasons why Judge Sotomayor and her colleague should overturn the procedural ruling: 1) Upholding such a ruling would cause a miscarriage of justice to continue; 2) Reversing the procedural ruling could open the door to more sophisticated DNA Testing; 3) The late petition was not my fault or my attorney's. To our dismay, Judge Sotomayor and her colleague refused to reverse the ruling. "The alleged reliance of Deskovic's attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance," they wrote. "Similarly, we are not persuaded that … his situation is unique and his petition has substantive merit." A second appeal to Sotomayor's court resulted in the same decision. The U.S. Supreme Court refused to hear my case, and I remained in prison for six more years.
When I first learned that Judge Sotomayor was nominated to the U.S. Supreme Court, I was immediately alarmed. What would it mean for other people who were wrongfully convicted? Judge Sotomayor put procedure over innocence in my case. Could she be trusted not to do so again in the future? Could she be counted on to correct injustices when the facts indicated that and/or the legal arguments could demonstrate that a trial was unfair?
Judge Sotomayor condemned me to serve a life sentence for a murder and rape that I did not commit. That other innocent people could be denied relief based on procedural technicalities is no mere possibility; Take the case of Troy Davis, who faces execution in Georgia despite overwhelming proof of his innocence -- proof that has never been allowed in a court room. Consider, too, the recent U.S. Supreme Court ruling in Alaska V.S. Osbourne, in which the U.S. Supreme Court stated that no prisoner has a constitutional right to access DNA Testing even when such testing could demonstrate innocence. That decision came down to a 5 to 4 vote; if Judge Sotomayor had been on the court, can anybody say with confidence that she would have voted in favor of DNA access?
There are human consequences to these decisions. I can still see the prison cell, the barbed wire, the isolation from my family, the depression, helplessness, frustration, abuse by prison guards, the constant physical danger in prison, no opportunities to build for my future, missing births, deaths, and holidays. We need to awaken this country to the role that judges play in perpetuating wrongful convictions by putting procedure over innocence, by putting finality of conviction over accuracy, and by rubber stamping appeal denials regardless of whether a trial was truly fair.
Judge Sotomayor will appear before the Senate next week. Given that she has been nominated to a lifetime appointment that affects all of our rights, what she did in my case -- condemning me to a life sentence based on procedure in the face of an airtight innocence claim -- should be part of the discussion. I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor's putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.
It is deeply dismaying that neither the Republicans nor the Democrats have introduced my case to the national conversation about Judge Sotomayor. Do people remember Anita Hill? As serious as her allegations of sexual harassment were, I would think that my serving time in prison wrongfully and being condemned to a life sentence for a crime that I was innocent of would be even more serious. I lost 16 years of my life. It seems evident that politics is trumping justice; that I am once again being wronged by the system.
Sotomayor put procedure over innocence as a federal judge.
My name is Jeffrey Deskovic. At age 17, I was wrongfully convicted of murder and rape, a conviction that was based upon a coerced, false confession, the fabrication of evidence, prosecutorial misconduct and fraud by a medical examiner. I was cleared 16 years later -- almost three years ago -- when DNA evidence proved my innocence, while also identifying the real perpetrator, who subsequently confessed to the crime. Since my release, I have made it my life's mission to battle against wrongful convictions and fight for legislation that would minimize the chances of what happened to me happening to someone else. It is this fight that compels me to speak out about Supreme Court nominee Sonia Sotomayor.
Before I was exonerated, I sought out every legal avenue I could to win my freedom. I defended my innocence before the New York Appellate Division, raising such proof as the fact that the physical evidence found did not match me and arguing that the police violated my rights by coercing a false confession from me at the age of 16. The court ruled against me 5 to 0, concluding that there was nothing wrong with my interrogation and stating that there was "overwhelming evidence of guilt," despite the fact that there was no evidence beyond my forced confession. In truth, the DNA and the hairs found on the victim's body were evidence of my innocence.
When my lawyer was denied a chance to reargue the case on the grounds that the court's decision ran counter to the law and to the facts, we moved to the Court Of Appeals, the highest court in New York. I filed a Writ Of Habeas Corpus, in which I argued that my conviction was a violation of the U.S. Constitution. The year was 1997. The year before, Congress had passed Bill Clinton's Anti-Terrorism-Effective-Death-Penalty Act (often called AEDPA in legalese), which mandated that from then on, all state prisoners would have only one year to appeal to a federal court after being denied an appeal by their state's highest court. As a result, there was some confusion in the federal courts regarding the filing procedure; it was not clear how this new law would apply to cases already in the system. Different jurisdictions were answering the question in different ways; my lawyer called the court clerk and asked whether it was enough that my petition be post-marked on the due date, or if it had to physically be filed and in the building on the due date. The court clerk told my attorney that it was enough that it be postmarked. That information turned out to be false. Consequently, my petition arrived four days too late.
Westchester District Attorney Jeanine Pirro seized on the late petition, arguing that the court should dismiss my case without even considering my innocence claim. The court sided agreed. I then appealed my case to the 2nd Circuit. It was there that I first met Judge Sonia Sotomayor.
My lawyer gave three reasons why Judge Sotomayor and her colleague should overturn the procedural ruling: 1) Upholding such a ruling would cause a miscarriage of justice to continue; 2) Reversing the procedural ruling could open the door to more sophisticated DNA Testing; 3) The late petition was not my fault or my attorney's. To our dismay, Judge Sotomayor and her colleague refused to reverse the ruling. "The alleged reliance of Deskovic's attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance," they wrote. "Similarly, we are not persuaded that … his situation is unique and his petition has substantive merit." A second appeal to Sotomayor's court resulted in the same decision. The U.S. Supreme Court refused to hear my case, and I remained in prison for six more years.
When I first learned that Judge Sotomayor was nominated to the U.S. Supreme Court, I was immediately alarmed. What would it mean for other people who were wrongfully convicted? Judge Sotomayor put procedure over innocence in my case. Could she be trusted not to do so again in the future? Could she be counted on to correct injustices when the facts indicated that and/or the legal arguments could demonstrate that a trial was unfair?
Judge Sotomayor condemned me to serve a life sentence for a murder and rape that I did not commit. That other innocent people could be denied relief based on procedural technicalities is no mere possibility; Take the case of Troy Davis, who faces execution in Georgia despite overwhelming proof of his innocence -- proof that has never been allowed in a court room. Consider, too, the recent U.S. Supreme Court ruling in Alaska V.S. Osbourne, in which the U.S. Supreme Court stated that no prisoner has a constitutional right to access DNA Testing even when such testing could demonstrate innocence. That decision came down to a 5 to 4 vote; if Judge Sotomayor had been on the court, can anybody say with confidence that she would have voted in favor of DNA access?
There are human consequences to these decisions. I can still see the prison cell, the barbed wire, the isolation from my family, the depression, helplessness, frustration, abuse by prison guards, the constant physical danger in prison, no opportunities to build for my future, missing births, deaths, and holidays. We need to awaken this country to the role that judges play in perpetuating wrongful convictions by putting procedure over innocence, by putting finality of conviction over accuracy, and by rubber stamping appeal denials regardless of whether a trial was truly fair.
Judge Sotomayor will appear before the Senate next week. Given that she has been nominated to a lifetime appointment that affects all of our rights, what she did in my case -- condemning me to a life sentence based on procedure in the face of an airtight innocence claim -- should be part of the discussion. I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor's putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.
It is deeply dismaying that neither the Republicans nor the Democrats have introduced my case to the national conversation about Judge Sotomayor. Do people remember Anita Hill? As serious as her allegations of sexual harassment were, I would think that my serving time in prison wrongfully and being condemned to a life sentence for a crime that I was innocent of would be even more serious. I lost 16 years of my life. It seems evident that politics is trumping justice; that I am once again being wronged by the system.
Thursday, July 09, 2009
Guest Shot: Again, man wrongfully imprisoned faces undeserved trouble
The following editorial was published in The Virginian-Pilot on July 8, 2009.
Arthur Whitfield, 55, has spent half his life trying to undo the damage from wrongful convictions for two rapes in 1981. The documented miscarriages of justice include nearly 22 years in prison before DNA test results set him free, a subsequent pardon that took more than four years, and now, absurd legal technicalities that prevent him from getting a paltry $15,000 from the state for the decades he wrongly spent in prison.
Despite all this, Whitfield remains remarkably free of anger and bitterness. He told The Pilot's Michelle Washington, "I understand that life isn't easy, but I thought it would be a little bit better than what it is."
It should be. Whitfield was 27 when he was sent to prison for 63 years for two rapes in Norfolk's Ghent neighborhood, largely on the basis of an identification by a victim. That was before DNA tests were commonplace, before evidence from a crime scene could provide an irrefutable link to a defendant or eliminate him as a suspect.
While in prison - two decades away from his family, away from any chance of earning a wage or putting money away for retirement - Whitfield earned his general equivalency diploma. He took classes in commercial cleaning and brick masonry.
In 2003, when DNA tests on old evidence began clearing a few defendants across Virginia, Whitfield asked the state to see whether the tests could be done in his case.
Two state officials helped Whitfield's case immeasurably. Mary Jane Burton, a state forensic lab analyst who has since died, preserved biological evidence, including Whitfield's, at a time when it was not required. And Norfolk Commonwealth's Attorney Jack Doyle pursued Whitfield's freedom as soon as the DNA tests in 2004 showed he was innocent.
Doyle, now a judge, petitioned the state parole board for Whitfield's immediate release. In April, three months ago, Gov. Tim Kaine pardoned Whitfield. The pardon erases his conviction, removes his name from the state's sex offender registry and takes him off probation.
But it doesn't result in compensation for the time Whitfield spent behind bars, even though his circumstances are exactly the kind the legislature envisioned addressing. Whitfield's lawyer applied for a $15,000 transition grant to help his client until the legislature can study his case and determine how much compensation Whitfield is owed.
Absurdly, the law says such grants can be given only to people still in prison, a condition that essentially requires Virginia to keep innocent people behind bars.
Whitfield now has a job but no car. The gas and water in his apartment have been turned off because he couldn't pay the bills.
He has suffered enough. More than enough.
This latest situation begs for a lawmaker to navigate the system on Whitfield's behalf and get him the help he needs. Sen. Ken Stolle says he will check into Whitfield's case. So should the rest of the General Assembly. Arthur Whitfield deserves help, not further delay in putting back together a life that the state helped take apart.
Arthur Whitfield, 55, has spent half his life trying to undo the damage from wrongful convictions for two rapes in 1981. The documented miscarriages of justice include nearly 22 years in prison before DNA test results set him free, a subsequent pardon that took more than four years, and now, absurd legal technicalities that prevent him from getting a paltry $15,000 from the state for the decades he wrongly spent in prison.
Despite all this, Whitfield remains remarkably free of anger and bitterness. He told The Pilot's Michelle Washington, "I understand that life isn't easy, but I thought it would be a little bit better than what it is."
It should be. Whitfield was 27 when he was sent to prison for 63 years for two rapes in Norfolk's Ghent neighborhood, largely on the basis of an identification by a victim. That was before DNA tests were commonplace, before evidence from a crime scene could provide an irrefutable link to a defendant or eliminate him as a suspect.
While in prison - two decades away from his family, away from any chance of earning a wage or putting money away for retirement - Whitfield earned his general equivalency diploma. He took classes in commercial cleaning and brick masonry.
In 2003, when DNA tests on old evidence began clearing a few defendants across Virginia, Whitfield asked the state to see whether the tests could be done in his case.
Two state officials helped Whitfield's case immeasurably. Mary Jane Burton, a state forensic lab analyst who has since died, preserved biological evidence, including Whitfield's, at a time when it was not required. And Norfolk Commonwealth's Attorney Jack Doyle pursued Whitfield's freedom as soon as the DNA tests in 2004 showed he was innocent.
Doyle, now a judge, petitioned the state parole board for Whitfield's immediate release. In April, three months ago, Gov. Tim Kaine pardoned Whitfield. The pardon erases his conviction, removes his name from the state's sex offender registry and takes him off probation.
But it doesn't result in compensation for the time Whitfield spent behind bars, even though his circumstances are exactly the kind the legislature envisioned addressing. Whitfield's lawyer applied for a $15,000 transition grant to help his client until the legislature can study his case and determine how much compensation Whitfield is owed.
Absurdly, the law says such grants can be given only to people still in prison, a condition that essentially requires Virginia to keep innocent people behind bars.
Whitfield now has a job but no car. The gas and water in his apartment have been turned off because he couldn't pay the bills.
He has suffered enough. More than enough.
This latest situation begs for a lawmaker to navigate the system on Whitfield's behalf and get him the help he needs. Sen. Ken Stolle says he will check into Whitfield's case. So should the rest of the General Assembly. Arthur Whitfield deserves help, not further delay in putting back together a life that the state helped take apart.
Thursday, June 25, 2009
Guest Shot: DNA tests should be available to prisoners
The following opinion was published in the Philadelphia Inquirer on June 25, 2009.
DNA tests should be available to prisoners
Confirming innocence or guilt is the right of all who claim to be falsely accused.
By Marissa Bluestine and David Rudovsky
Chief Justice John Roberts began last week's opinion in District Attorney's Office of the Third Judicial District v. Osborne by noting: "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." But the ruling by Roberts and four other Supreme Court justices ultimately showed little regard for DNA's power to undo injustice.
In 1993, an Alaska court convicted William Osborne of kidnapping, assault, and sexual assault. On appeal, Osborne requested newly available DNA testing that, everyone agreed, would show definitively whether he was guilty. He also offered to pay for the testing. But the district attorney, without giving a reason, refused to turn over the DNA evidence.
A federal district court ruled that, as a matter of due process, Osborne was entitled to the evidence, and an appeals court agreed. However, the Supreme Court ruled that no such right exists after conviction, and that each state can decide when and under what circumstances a convicted defendant may have access to DNA evidence.
The Supreme Court's willingness to turn a blind eye to wrongly convicted prisoners is troubling - particularly in light of the 240 exonerations through DNA since 1989. As Justice John Paul Stevens noted in his dissent, Alaska never gave a reason for its refusal other than a need for "finality." Stevens called that position "arbitrary."
The court's majority opinion failed to answer the same question: Why, when an inmate has professed his innocence, repeatedly requested such testing since his trial, and agreed to cover all the associated costs, would a prosecutor not provide the evidence? Why, especially, when the test could conclusively prove that he committed the crime?
And if Osborne is in fact proved innocent and the DNA could identify the actual rapist, why is there not an overwhelming societal interest in providing the evidence for testing?
Unfortunately, many prosecutors have aggressively blocked prisoners seeking post-conviction DNA testing. According to a recent New York Times report, the reasons for the denials have included "overwhelming" eyewitness testimony (even though 75 percent of those exonerated by DNA were wrongly convicted based on eyewitness testimony), the purported statistical insignificance of the number of exonerations, and - the most often-cited reason - the need for "finality" in the criminal-justice system.
In response, most states, including Pennsylvania, have passed laws providing post-conviction access to DNA evidence. But many of these statutes are too narrowly framed to ensure sufficient access to DNA testing.
There is no doubt that the paramount aim of the criminal-justice system - to convict the guilty and free the innocent - is promoted by full access to DNA evidence. Incarcerating someone who had nothing to do with a crime does not benefit the victim. Nor does it benefit the victims who have suffered because a true perpetrator was never convicted and was able to commit more crimes - as has happened in the cases of at least 43 percent of the DNA exonerations to date.
When an inmate makes a credible claim of innocence, and when the DNA evidence will be able to conclusively establish the identity of the perpetrator, a genuine interest in "finality" should mean finally and conclusively identifying the true perpetrator.
While the ultimate impact of the Osborne decision is uncertain, its effect on potentially innocent men and women locked away for things they did not do is devastating. Peter Neufeld, a co-director of the Innocence Project in New York, which represented Osborne, has said, "As a result of this decision, more innocent people will languish in prison, and some may die in prison, because they were prevented from proving their innocence."
The Osborne ruling represents a betrayal of our society's core values. In Pennsylvania, the legislature and the courts should make sure that innocent inmates are not denied access to the evidence needed "to exonerate the wrongly convicted and to identify the guilty."
--------------------------------------------------------------------------------
Marissa Bluestine is legal director of the Pennsylvania Innocence Project. David Rudovsky is vice president of its board. They can be contacted at mbluestine@temple.edu and drudovsky@krlawphila.com.
DNA tests should be available to prisoners
Confirming innocence or guilt is the right of all who claim to be falsely accused.
By Marissa Bluestine and David Rudovsky
Chief Justice John Roberts began last week's opinion in District Attorney's Office of the Third Judicial District v. Osborne by noting: "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." But the ruling by Roberts and four other Supreme Court justices ultimately showed little regard for DNA's power to undo injustice.
In 1993, an Alaska court convicted William Osborne of kidnapping, assault, and sexual assault. On appeal, Osborne requested newly available DNA testing that, everyone agreed, would show definitively whether he was guilty. He also offered to pay for the testing. But the district attorney, without giving a reason, refused to turn over the DNA evidence.
A federal district court ruled that, as a matter of due process, Osborne was entitled to the evidence, and an appeals court agreed. However, the Supreme Court ruled that no such right exists after conviction, and that each state can decide when and under what circumstances a convicted defendant may have access to DNA evidence.
The Supreme Court's willingness to turn a blind eye to wrongly convicted prisoners is troubling - particularly in light of the 240 exonerations through DNA since 1989. As Justice John Paul Stevens noted in his dissent, Alaska never gave a reason for its refusal other than a need for "finality." Stevens called that position "arbitrary."
The court's majority opinion failed to answer the same question: Why, when an inmate has professed his innocence, repeatedly requested such testing since his trial, and agreed to cover all the associated costs, would a prosecutor not provide the evidence? Why, especially, when the test could conclusively prove that he committed the crime?
And if Osborne is in fact proved innocent and the DNA could identify the actual rapist, why is there not an overwhelming societal interest in providing the evidence for testing?
Unfortunately, many prosecutors have aggressively blocked prisoners seeking post-conviction DNA testing. According to a recent New York Times report, the reasons for the denials have included "overwhelming" eyewitness testimony (even though 75 percent of those exonerated by DNA were wrongly convicted based on eyewitness testimony), the purported statistical insignificance of the number of exonerations, and - the most often-cited reason - the need for "finality" in the criminal-justice system.
In response, most states, including Pennsylvania, have passed laws providing post-conviction access to DNA evidence. But many of these statutes are too narrowly framed to ensure sufficient access to DNA testing.
There is no doubt that the paramount aim of the criminal-justice system - to convict the guilty and free the innocent - is promoted by full access to DNA evidence. Incarcerating someone who had nothing to do with a crime does not benefit the victim. Nor does it benefit the victims who have suffered because a true perpetrator was never convicted and was able to commit more crimes - as has happened in the cases of at least 43 percent of the DNA exonerations to date.
When an inmate makes a credible claim of innocence, and when the DNA evidence will be able to conclusively establish the identity of the perpetrator, a genuine interest in "finality" should mean finally and conclusively identifying the true perpetrator.
While the ultimate impact of the Osborne decision is uncertain, its effect on potentially innocent men and women locked away for things they did not do is devastating. Peter Neufeld, a co-director of the Innocence Project in New York, which represented Osborne, has said, "As a result of this decision, more innocent people will languish in prison, and some may die in prison, because they were prevented from proving their innocence."
The Osborne ruling represents a betrayal of our society's core values. In Pennsylvania, the legislature and the courts should make sure that innocent inmates are not denied access to the evidence needed "to exonerate the wrongly convicted and to identify the guilty."
--------------------------------------------------------------------------------
Marissa Bluestine is legal director of the Pennsylvania Innocence Project. David Rudovsky is vice president of its board. They can be contacted at mbluestine@temple.edu and drudovsky@krlawphila.com.
Monday, June 22, 2009
Guest shot: Oregon case puts reliability of science itself on trial
The following opinion was originally published on June 20, 2009 in The Oregonian.
Oregon case puts reliability of science itself on trial
by Pamela Cytrynbaum, guest opinion June 21, 2009
Oregon inmate Philip Scott Cannon"Bullet lead analysis" viewed as discredited evidence
Oregon Department of Corrections inmate No. 88329999 is a convicted murderer serving three life sentences for a 1998 triple homicide at a mobile home in West Salem.
Inside the Oregon State Penitentiary, that inmate, Philip Scott Cannon, spends every waking moment poring over legal documents as if his life depends on it. Because it does.
While the 42-year-old inmate may appear to be just another lifer shuffling through the system, he is, in fact, on the front lines of a quiet revolution overtaking the nation's criminal justice system. The "bullet lead analysis" that was the prosecution's primary tool in an otherwise circumstantial case against Cannon has since been discarded as bad science. The FBI no longer uses it.
Cannon and his legal team plan to put this evidence, and his conviction, on trial in a July 7 hearing they hope will result in his release.
We've seen a lot of media coverage of those found innocent, and later released, by the reliable scientific evidence provided by DNA. At the same time, but perhaps with less public attention, many of the other key scientific building blocks used for decades by prosecutors to convict are crumbling. It is not clear how many such tainted convictions exist -- or how often they have resulted in innocent people being convicted.
But for real justice to occur, the news media must shine their most searing and relentless light on the criminal justice system, now more than ever. Fewer investigative reporters have the time or resources to track down witnesses or unearth new evidence, even as more cases of possible wrongful conviction demand attention. For those of us who care about the integrity of the criminal justice system -- and democracy itself -- this case is a canary in the coal mine. What happens next month in Oregon, and in the months to come in courtrooms around the country, should matter to us all.
In fact, forensic science and cases of potential innocence collided again Thursday when the U.S. Supreme Court rejected an Alaska inmate's request for DNA testing, ruling that prisoners do not have a constitutional right to DNA testing that could prove their innocence.
A Polk County jury found Cannon guilty in the 1998 fatal shootings of Jason Kinser, Suzan Osborne and Celesta Graves, whose bodies were found in or beneath a mobile home in West Salem. Cannon testified he was at the residence to fix a plumbing problem but has always maintained his innocence, saying he neither knew about nor had anything to do with the crimes.
A former Oregon State University researcher in the university's Radiation Center provided the evidence now in question when he testified that tests showed bullets found at the crime scene matched those found in Cannon's garage. He told jurors there was only a 1 in 64 million chance of getting that match.
Now Cannon and his legal team are finalizing his claim of "actual innocence" for next month's hearing in Marion County Circuit Court. They will present new evidence intended to show he was convicted primarily on faulty and discredited "junk science" called bullet lead analysis -- evidence so unreliable it has been abandoned by the FBI. This same evidence is also the main forensic tool prosecutors nationwide have used to convict hundreds of defendants, according to a joint investigation last year by The Washington Post and "60 Minutes."
Nobody knows how many cases or convictions have resulted from flawed forensic science, said Eric Ferrero, spokesman for the New York-based Innocence Project, headquarters for the national network of innocence projects. "All that we track is how many of the nation's 239 wrongful convictions overturned with DNA testing involved forensic problems," Ferrero said. "On that score, approximately 50 percent involved what we refer to as invalidated or improper forensic science."
In Cannon's case, the discredited forensic evidence was crucial to the conviction, argues Mark J. Geiger, Cannon's attorney. The rest was circumstantial. "If you're telling the jury the bullets from the crime scene are the same as the bullets from a box in the defendant's garage, well, what else do you need? That's it. It's over," Geiger says. "The problem is, it just wasn't true."
Bullet-related evidence is not the only prosecution tool under a credibility cloud. While DNA analysis -- often seen as the "magic bullet" of the criminal justice system -- has reliably identified the guilty and exonerated the innocent, the accuracy of other scientific techniques is shrouded in far more than reasonable doubt. Such evidence includes techniques claiming to analyze hair, bite-mark comparisons, fingerprints, firearms, tool marks, shoe prints and some techniques used in arson investigations.
In February, the National Academy of Sciences released a comprehensive report citing "serious problems" in the scientific evidence being presented every day in courtrooms around the country. The academy found "no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source."
Where does that leave Cannon and others serving life or living on death row?
Oregon Department of Justice officials declined to comment on Cannon's upcoming hearing while acknowledging the challenge of viewing old cases in light of new scientific standards. "The post-conviction relief process is exactly the appropriate place to sort out these things," said Tony Green, a department spokesman. "The FBI is no longer doing these tests because they don't consider them valid. But, if there is other evidence lined up, then we want to get it in front of a judge to sort it out. We're interested in getting to the truth. We have a higher obligation to the truth."
In addition to attacking the bullet evidence, Cannon's legal team will file sworn affidavits arguing: The prosecution mishandled and withheld key evidence; there are at least five credible alternative suspects with motives who should have been investigated; two more people have died suspiciously on the same site as the original crime scene; and the credibility of the prosecution's key witness, who owned that property, is suspect because she has since been convicted of manslaughter for a killing at that same site.
After a decade of proclaiming his innocence, Cannon is scheduled to be heard in the courtroom of Circuit Court Judge Lynn Ashcroft. Geiger, Cannon's attorney, says his client is "incredibly intelligent" and has worked tirelessly on his own behalf.
Cannon's legal team also has relied on the old-school gumshoe skills of Eric Mason, a former investigative reporter who went from broadcast journalism to private investigating and took on Cannon's case a year ago. Mason has reviewed thousands of documents and talked to witnesses who were overlooked a decade earlier.
At the same time the criminal justice system is facing the implications of all the convictions that hinged on discredited forensic science, Mason's investigative work on Cannon's case represents a parallel and equally crushing national trend: the slashing of newspaper staffs and the grave reduction in investigative journalism available to dig into cases, where the law has left a potentially innocent person to die in prison -- either on death row or as a lifer, like Cannon.
A May 20 front-page story in The New York Times reported the loss of investigative journalists whose pavement-pounding reporting resulted in the ultimate righting of wrongs: the exoneration and release of innocent prisoners, many of whom spent decades on death row. The shuttering and shredding of American newsrooms across the country means even fewer potential miscarriages of justice are being investigated.
This may be the greatest crime of all.
Pamela Cytrynbaum, a former Chicago Tribune reporter, is on the New Media Communications faculty at Oregon State University, where she teaches courses in multimedia writing, reporting and wrongful convictions. She is the former director of the Justice Brandeis Innocence Project and former associate director of the Schuster Institute for Investigative Journalism at Brandeis University. She also has taught in Northwestern University's nationally acclaimed Medill Innocence Project and the University of Oregon's School of Journalism and Communication.
Oregon case puts reliability of science itself on trial
by Pamela Cytrynbaum, guest opinion June 21, 2009
Oregon inmate Philip Scott Cannon"Bullet lead analysis" viewed as discredited evidence
Oregon Department of Corrections inmate No. 88329999 is a convicted murderer serving three life sentences for a 1998 triple homicide at a mobile home in West Salem.
Inside the Oregon State Penitentiary, that inmate, Philip Scott Cannon, spends every waking moment poring over legal documents as if his life depends on it. Because it does.
While the 42-year-old inmate may appear to be just another lifer shuffling through the system, he is, in fact, on the front lines of a quiet revolution overtaking the nation's criminal justice system. The "bullet lead analysis" that was the prosecution's primary tool in an otherwise circumstantial case against Cannon has since been discarded as bad science. The FBI no longer uses it.
Cannon and his legal team plan to put this evidence, and his conviction, on trial in a July 7 hearing they hope will result in his release.
We've seen a lot of media coverage of those found innocent, and later released, by the reliable scientific evidence provided by DNA. At the same time, but perhaps with less public attention, many of the other key scientific building blocks used for decades by prosecutors to convict are crumbling. It is not clear how many such tainted convictions exist -- or how often they have resulted in innocent people being convicted.
But for real justice to occur, the news media must shine their most searing and relentless light on the criminal justice system, now more than ever. Fewer investigative reporters have the time or resources to track down witnesses or unearth new evidence, even as more cases of possible wrongful conviction demand attention. For those of us who care about the integrity of the criminal justice system -- and democracy itself -- this case is a canary in the coal mine. What happens next month in Oregon, and in the months to come in courtrooms around the country, should matter to us all.
In fact, forensic science and cases of potential innocence collided again Thursday when the U.S. Supreme Court rejected an Alaska inmate's request for DNA testing, ruling that prisoners do not have a constitutional right to DNA testing that could prove their innocence.
A Polk County jury found Cannon guilty in the 1998 fatal shootings of Jason Kinser, Suzan Osborne and Celesta Graves, whose bodies were found in or beneath a mobile home in West Salem. Cannon testified he was at the residence to fix a plumbing problem but has always maintained his innocence, saying he neither knew about nor had anything to do with the crimes.
A former Oregon State University researcher in the university's Radiation Center provided the evidence now in question when he testified that tests showed bullets found at the crime scene matched those found in Cannon's garage. He told jurors there was only a 1 in 64 million chance of getting that match.
Now Cannon and his legal team are finalizing his claim of "actual innocence" for next month's hearing in Marion County Circuit Court. They will present new evidence intended to show he was convicted primarily on faulty and discredited "junk science" called bullet lead analysis -- evidence so unreliable it has been abandoned by the FBI. This same evidence is also the main forensic tool prosecutors nationwide have used to convict hundreds of defendants, according to a joint investigation last year by The Washington Post and "60 Minutes."
Nobody knows how many cases or convictions have resulted from flawed forensic science, said Eric Ferrero, spokesman for the New York-based Innocence Project, headquarters for the national network of innocence projects. "All that we track is how many of the nation's 239 wrongful convictions overturned with DNA testing involved forensic problems," Ferrero said. "On that score, approximately 50 percent involved what we refer to as invalidated or improper forensic science."
In Cannon's case, the discredited forensic evidence was crucial to the conviction, argues Mark J. Geiger, Cannon's attorney. The rest was circumstantial. "If you're telling the jury the bullets from the crime scene are the same as the bullets from a box in the defendant's garage, well, what else do you need? That's it. It's over," Geiger says. "The problem is, it just wasn't true."
Bullet-related evidence is not the only prosecution tool under a credibility cloud. While DNA analysis -- often seen as the "magic bullet" of the criminal justice system -- has reliably identified the guilty and exonerated the innocent, the accuracy of other scientific techniques is shrouded in far more than reasonable doubt. Such evidence includes techniques claiming to analyze hair, bite-mark comparisons, fingerprints, firearms, tool marks, shoe prints and some techniques used in arson investigations.
In February, the National Academy of Sciences released a comprehensive report citing "serious problems" in the scientific evidence being presented every day in courtrooms around the country. The academy found "no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source."
Where does that leave Cannon and others serving life or living on death row?
Oregon Department of Justice officials declined to comment on Cannon's upcoming hearing while acknowledging the challenge of viewing old cases in light of new scientific standards. "The post-conviction relief process is exactly the appropriate place to sort out these things," said Tony Green, a department spokesman. "The FBI is no longer doing these tests because they don't consider them valid. But, if there is other evidence lined up, then we want to get it in front of a judge to sort it out. We're interested in getting to the truth. We have a higher obligation to the truth."
In addition to attacking the bullet evidence, Cannon's legal team will file sworn affidavits arguing: The prosecution mishandled and withheld key evidence; there are at least five credible alternative suspects with motives who should have been investigated; two more people have died suspiciously on the same site as the original crime scene; and the credibility of the prosecution's key witness, who owned that property, is suspect because she has since been convicted of manslaughter for a killing at that same site.
After a decade of proclaiming his innocence, Cannon is scheduled to be heard in the courtroom of Circuit Court Judge Lynn Ashcroft. Geiger, Cannon's attorney, says his client is "incredibly intelligent" and has worked tirelessly on his own behalf.
Cannon's legal team also has relied on the old-school gumshoe skills of Eric Mason, a former investigative reporter who went from broadcast journalism to private investigating and took on Cannon's case a year ago. Mason has reviewed thousands of documents and talked to witnesses who were overlooked a decade earlier.
At the same time the criminal justice system is facing the implications of all the convictions that hinged on discredited forensic science, Mason's investigative work on Cannon's case represents a parallel and equally crushing national trend: the slashing of newspaper staffs and the grave reduction in investigative journalism available to dig into cases, where the law has left a potentially innocent person to die in prison -- either on death row or as a lifer, like Cannon.
A May 20 front-page story in The New York Times reported the loss of investigative journalists whose pavement-pounding reporting resulted in the ultimate righting of wrongs: the exoneration and release of innocent prisoners, many of whom spent decades on death row. The shuttering and shredding of American newsrooms across the country means even fewer potential miscarriages of justice are being investigated.
This may be the greatest crime of all.
Pamela Cytrynbaum, a former Chicago Tribune reporter, is on the New Media Communications faculty at Oregon State University, where she teaches courses in multimedia writing, reporting and wrongful convictions. She is the former director of the Justice Brandeis Innocence Project and former associate director of the Schuster Institute for Investigative Journalism at Brandeis University. She also has taught in Northwestern University's nationally acclaimed Medill Innocence Project and the University of Oregon's School of Journalism and Communication.
Thursday, May 28, 2009
Must Watch: America's Most Wanted, Saturday, May 30, 2009
The following was originally published in the Columbia (MO) Tribune on May 27, 2009.
Hoping a brother goes free
TV program re-creates trial of Dale Helmig.
By Terry Ganey
Wednesday, May 27, 2009
Columbia lawyer Kenny Hulshof’s performance as a special prosecutor in the murder trial of Dale Helmig will be re-examined in an unusual episode of “America’s Most Wanted” that will be televised Saturday.
“The show is designed to capture bad people and put them away,” said producer Dave Bolton. “This case jumped to our attention because it looked like a huge miscarriage of justice because the bad guy who did the crime was still out there and the innocent guy was put in prison for a crime he did not commit.”
“America’s Most Wanted,” scheduled for broadcast at 8 p.m. Saturday on KQFX-TV (Fox 38), will devote an hour to the investigation and trial of Helmig, now 53, who in 1996 was convicted of murdering his mother. He was sentenced to life in prison without parole.
The body of Norma Helmig, 55, was found in the flood-swollen Osage River near Linn on Aug. 1, 1993. A concrete block had been tied to her body with a nylon rope.
Although Dale Helmig usually lived with his mother near Linn, he said he spent the night of her murder at a motel in Fulton because flooding had blocked his route home. But Osage County Sheriff Carl Fowler said there was a window of time in which the floodwaters receded long enough to give Helmig an opportunity to commit the crime. Prosecutors said Helmig and his mother had argued over a $200 telephone bill.
Bolton said the program will focus on the sheriff’s investigation and re-create Helmig’s trial.
“When you look at the court transcript and read what the prosecution said and what the prosecution’s witnesses said happened, and you reinvestigate and find what really happened, you learn that the two do not mesh,” Bolton said. “Any objective person looking at the case and looking at the facts and looking into this criminal trial would say he did not get a fair trial and deserves another shot at justice.”
Hulshof, who worked as a special prosecutor for then-Attorney General Jay Nixon, helped argue the case against Helmig. Hulshof did not respond to a request for comment. In previous interviews he said he believed Helmig was guilty as charged and that it was his duty “to try to convince the jury of that.”
“Whatever their decision was would have been justice in that case,” Hulshof said in a 2005 interview. “And they unanimously found him guilty.”
In January, a judge overturned a murder conviction in another Hulshof-argued case. Cole County Circuit Judge Richard Callahan ruled evidence was withheld in the case of Joshua Kezer, who spent more than 14 years in prison for murder. Hulshof said he also stood by that conviction.
Hulshof served 12 years in Congress and was the unsuccessful Republican candidate for governor against Nixon last year. Hulshof is now an attorney with the Polsinelli Shughart law firm in Kansas City.
Helmig, who is being held at the Western Missouri Correctional Center in Cameron, has insisted he is innocent of the crime and that he loved his mother. Two previous documentaries have raised questions about his case. In 2000, a pilot television show, “Was Justice Denied,” challenged the outcome of Helmig’s trial. Later, students at Illinois State University in Normal completed “A Matter of Innocence: The Dale Helmig Story.” In 2005, the St. Louis Post-Dispatch published “Questions of Justice,” a three-part series on Helmig’s case.
Dale Helmig’s younger brother, Richard Helmig of Rocky Mount in Morgan County, contacted “America’s Most Wanted” several years ago about his brother’s predicament.
“I believe he is 100 percent innocent,” Richard Helmig said. “We’re hoping that somebody might call in with some knowledge about the case.” He said “America’s Most Wanted” would protect the identities of those coming forward with new information.
Helmig said he talks to his brother in prison every day by phone. “He’s holding up well,” Richard Helmig said. “He has a lot of high hopes.”
Reach Terry Ganey at 573-815-1708 or e-mail tganey@columbiatribune.com.
Hoping a brother goes free
TV program re-creates trial of Dale Helmig.
By Terry Ganey
Wednesday, May 27, 2009
Columbia lawyer Kenny Hulshof’s performance as a special prosecutor in the murder trial of Dale Helmig will be re-examined in an unusual episode of “America’s Most Wanted” that will be televised Saturday.
“The show is designed to capture bad people and put them away,” said producer Dave Bolton. “This case jumped to our attention because it looked like a huge miscarriage of justice because the bad guy who did the crime was still out there and the innocent guy was put in prison for a crime he did not commit.”
“America’s Most Wanted,” scheduled for broadcast at 8 p.m. Saturday on KQFX-TV (Fox 38), will devote an hour to the investigation and trial of Helmig, now 53, who in 1996 was convicted of murdering his mother. He was sentenced to life in prison without parole.
The body of Norma Helmig, 55, was found in the flood-swollen Osage River near Linn on Aug. 1, 1993. A concrete block had been tied to her body with a nylon rope.
Although Dale Helmig usually lived with his mother near Linn, he said he spent the night of her murder at a motel in Fulton because flooding had blocked his route home. But Osage County Sheriff Carl Fowler said there was a window of time in which the floodwaters receded long enough to give Helmig an opportunity to commit the crime. Prosecutors said Helmig and his mother had argued over a $200 telephone bill.
Bolton said the program will focus on the sheriff’s investigation and re-create Helmig’s trial.
“When you look at the court transcript and read what the prosecution said and what the prosecution’s witnesses said happened, and you reinvestigate and find what really happened, you learn that the two do not mesh,” Bolton said. “Any objective person looking at the case and looking at the facts and looking into this criminal trial would say he did not get a fair trial and deserves another shot at justice.”
Hulshof, who worked as a special prosecutor for then-Attorney General Jay Nixon, helped argue the case against Helmig. Hulshof did not respond to a request for comment. In previous interviews he said he believed Helmig was guilty as charged and that it was his duty “to try to convince the jury of that.”
“Whatever their decision was would have been justice in that case,” Hulshof said in a 2005 interview. “And they unanimously found him guilty.”
In January, a judge overturned a murder conviction in another Hulshof-argued case. Cole County Circuit Judge Richard Callahan ruled evidence was withheld in the case of Joshua Kezer, who spent more than 14 years in prison for murder. Hulshof said he also stood by that conviction.
Hulshof served 12 years in Congress and was the unsuccessful Republican candidate for governor against Nixon last year. Hulshof is now an attorney with the Polsinelli Shughart law firm in Kansas City.
Helmig, who is being held at the Western Missouri Correctional Center in Cameron, has insisted he is innocent of the crime and that he loved his mother. Two previous documentaries have raised questions about his case. In 2000, a pilot television show, “Was Justice Denied,” challenged the outcome of Helmig’s trial. Later, students at Illinois State University in Normal completed “A Matter of Innocence: The Dale Helmig Story.” In 2005, the St. Louis Post-Dispatch published “Questions of Justice,” a three-part series on Helmig’s case.
Dale Helmig’s younger brother, Richard Helmig of Rocky Mount in Morgan County, contacted “America’s Most Wanted” several years ago about his brother’s predicament.
“I believe he is 100 percent innocent,” Richard Helmig said. “We’re hoping that somebody might call in with some knowledge about the case.” He said “America’s Most Wanted” would protect the identities of those coming forward with new information.
Helmig said he talks to his brother in prison every day by phone. “He’s holding up well,” Richard Helmig said. “He has a lot of high hopes.”
Reach Terry Ganey at 573-815-1708 or e-mail tganey@columbiatribune.com.
Monday, May 25, 2009
Wisconsin State Journal Editorial: Impartial justice? More doubts about the Wisconsin Supreme Court
The following editorial was originally published in the Wisconsin State Journal on May 23, 2009.
Impartial justice? More doubts about the Wisconsin Supreme Court
The recent attempt by a lawyer to remove Supreme Court Justice Michael Gableman from a case is a foreboding indicator of a grave problem:
Wisconsin's system of electing justices is putting at risk our trust in fair, impartial justice from our highest state court.
The best solution is a reform called merit selection.
The request that Gableman remove himself from a case concerns a pledge he made during his 2008 campaign for a seat on the Supreme Court. Gableman said he would not "look for loopholes to put criminals back on our streets."
Lawyer Robert Henak claims the statement shows bias or the appearance of bias against Henak's client, appealing a conviction by claiming ineffective counsel at his trial.
Whether Henak's request has substance -- or is nothing more than a lawyer trying every possible argument for his client -- will be up to Gableman, and potentially the other justices, to determine.
However, the request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin's have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises. "Obviously, (Henak's) motion points out the problem as the race has become more issue-oriented," former Supreme Court Justice Janine Geske told the Milwaukee Journal-Sentinel.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.
The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?
Concern is so widespread that the state Supreme Court justices will conduct hearings this fall on whether judges must remove themselves from cases involving campaign contributors. In addition, the U.S. Supreme Court is soon to decide a West Virginia case about a state supreme court justice who remained on a case involving a campaign supporter.
Moreover, as if the current situation weren't questionable enough, "You ain't seen nothin' yet."
Wisconsin law has previously tried to restrain how far judicial candidates can go in making issue-oriented campaign promises. But that restraint is headed to the scrap heap. Court rulings in Wisconsin and elsewhere are paving the way toward full-blown partisan judicial elections.
At the crux of the problem is the threat to the checks and balances so fundamental to American government. Our lawmakers and governors are supposed to be partial to agendas that reflect the will of the majority. That's why we elect them by majority vote.
In contrast, the judicial branch -- especially supreme courts -- serves as an important check on the majority's power to trample on minority rights guaranteed by law.
When justices are elected after big-money campaigns in which partisan sides back candidates partial to their politics, the system of checks and balances is jeopardized.
And so is our trust in the court's fairness.
Reform is required. Merit selection is the right choice.
What’s merit selection?
The State Journal editorial board supports merit selection as an alternative to Wisconsin’s Supreme Court elections, which have become increasingly influenced by partisan politics and misleading ads sponsored by outside interests.
The best merit selection systems employ a diverse, nonpartisan committee appointed by a variety of sources.
The committee recruits candidates and, in a public process, evaluates each according to character, competency, experience and related qualifications.
The committee then submits a list of finalists to the governor or another authority, who makes the selection from the list.
Justices are held accountable for their performance through periodic reviews by the committee or by voters who decide whether to retain a justice in a yes-or-no, uncontested election at the end of a term.
Twenty-four states and the District of Columbia already appoint their highest courts through merit selection. Merit reform is under discussion in Texas and Pennsylvania. In neighboring Minnesota merit selection legislation won committee approval this year before stalling as lawmakers dealt with a budget crisis.
For a fuller explanation of a good merit selection system, see the description of Arizona’s process
Impartial justice? More doubts about the Wisconsin Supreme Court
The recent attempt by a lawyer to remove Supreme Court Justice Michael Gableman from a case is a foreboding indicator of a grave problem:
Wisconsin's system of electing justices is putting at risk our trust in fair, impartial justice from our highest state court.
The best solution is a reform called merit selection.
The request that Gableman remove himself from a case concerns a pledge he made during his 2008 campaign for a seat on the Supreme Court. Gableman said he would not "look for loopholes to put criminals back on our streets."
Lawyer Robert Henak claims the statement shows bias or the appearance of bias against Henak's client, appealing a conviction by claiming ineffective counsel at his trial.
Whether Henak's request has substance -- or is nothing more than a lawyer trying every possible argument for his client -- will be up to Gableman, and potentially the other justices, to determine.
However, the request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin's have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises. "Obviously, (Henak's) motion points out the problem as the race has become more issue-oriented," former Supreme Court Justice Janine Geske told the Milwaukee Journal-Sentinel.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.
The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?
Concern is so widespread that the state Supreme Court justices will conduct hearings this fall on whether judges must remove themselves from cases involving campaign contributors. In addition, the U.S. Supreme Court is soon to decide a West Virginia case about a state supreme court justice who remained on a case involving a campaign supporter.
Moreover, as if the current situation weren't questionable enough, "You ain't seen nothin' yet."
Wisconsin law has previously tried to restrain how far judicial candidates can go in making issue-oriented campaign promises. But that restraint is headed to the scrap heap. Court rulings in Wisconsin and elsewhere are paving the way toward full-blown partisan judicial elections.
At the crux of the problem is the threat to the checks and balances so fundamental to American government. Our lawmakers and governors are supposed to be partial to agendas that reflect the will of the majority. That's why we elect them by majority vote.
In contrast, the judicial branch -- especially supreme courts -- serves as an important check on the majority's power to trample on minority rights guaranteed by law.
When justices are elected after big-money campaigns in which partisan sides back candidates partial to their politics, the system of checks and balances is jeopardized.
And so is our trust in the court's fairness.
Reform is required. Merit selection is the right choice.
What’s merit selection?
The State Journal editorial board supports merit selection as an alternative to Wisconsin’s Supreme Court elections, which have become increasingly influenced by partisan politics and misleading ads sponsored by outside interests.
The best merit selection systems employ a diverse, nonpartisan committee appointed by a variety of sources.
The committee recruits candidates and, in a public process, evaluates each according to character, competency, experience and related qualifications.
The committee then submits a list of finalists to the governor or another authority, who makes the selection from the list.
Justices are held accountable for their performance through periodic reviews by the committee or by voters who decide whether to retain a justice in a yes-or-no, uncontested election at the end of a term.
Twenty-four states and the District of Columbia already appoint their highest courts through merit selection. Merit reform is under discussion in Texas and Pennsylvania. In neighboring Minnesota merit selection legislation won committee approval this year before stalling as lawmakers dealt with a budget crisis.
For a fuller explanation of a good merit selection system, see the description of Arizona’s process
Friday, May 15, 2009
Guest Shot: I put away an innocent man
The following opinion was originally published in the Dallas News.
James A. Fry: I put away an innocent man
03:06 PM CDT on Thursday, May 14, 2009
When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.
Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.
I am proud of having been a prosecutor; it is honorable work. In fact, I still have a portrait of former Dallas County District Attorney Henry Wade in my law office. He was a good man, and he gave me a chance to be a trial lawyer. However, my unknowing involvement in prosecuting an innocent man has been a troubling experience.
Chatman's story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.
As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.
The fault in Chatman's case, however, lies not with the victim, who honestly believed she had identified the right man. Instead, it lies in part with the flawed witness identification procedures used by law enforcement agencies. Research has shown that relatively small changes can greatly improve witness accuracy, changes we urgently need to implement.
Witness identification is not the only contributor to wrongful convictions. Far from it. Politicians – a category that includes elected officials, district attorneys and judges – need to be less concerned about remaining in office and more concerned with determining the truth. More effort needs to be given to see that court-appointed attorneys have adequate compensation and investigation funds. Until these issues are addressed and reforms put in place, the number of innocent men and women sent to prison will continue to rise.
Chatman's case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?
For years, Texas has led the nation in the number of executions. Why don't we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?
For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.
I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.
But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let's get this system fixed.
James A. Fry was a Dallas County assistant district attorney from 1980 to 1982 and currently practices family law in Sherman. His e-mail address is jamesfrypc@verizon.net.
James A. Fry: I put away an innocent man
03:06 PM CDT on Thursday, May 14, 2009
When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.
Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.
I am proud of having been a prosecutor; it is honorable work. In fact, I still have a portrait of former Dallas County District Attorney Henry Wade in my law office. He was a good man, and he gave me a chance to be a trial lawyer. However, my unknowing involvement in prosecuting an innocent man has been a troubling experience.
Chatman's story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.
As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.
The fault in Chatman's case, however, lies not with the victim, who honestly believed she had identified the right man. Instead, it lies in part with the flawed witness identification procedures used by law enforcement agencies. Research has shown that relatively small changes can greatly improve witness accuracy, changes we urgently need to implement.
Witness identification is not the only contributor to wrongful convictions. Far from it. Politicians – a category that includes elected officials, district attorneys and judges – need to be less concerned about remaining in office and more concerned with determining the truth. More effort needs to be given to see that court-appointed attorneys have adequate compensation and investigation funds. Until these issues are addressed and reforms put in place, the number of innocent men and women sent to prison will continue to rise.
Chatman's case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?
For years, Texas has led the nation in the number of executions. Why don't we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?
For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.
I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.
But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let's get this system fixed.
James A. Fry was a Dallas County assistant district attorney from 1980 to 1982 and currently practices family law in Sherman. His e-mail address is jamesfrypc@verizon.net.
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