The following commentary by Harvey Silvergate was published by Forbes on October 18, 2012.
Inherent in any human endeavor is the possibility of error. In few arenas is this axiom more consequential—or more steadfastly ignored—than in the criminal justice system.
The week of September 17th, the Wilmington, NC, federal district court held a long-awaited evidentiary hearing in the case of Jeffrey MacDonald. This murder case, which occasionally has dominated (and of late has returned to) the headlines, offers a chilling reminder of the importance of accuracy over the finality of criminal verdicts when weighing innocence claims of the convicted. In seeking to balance the supposed necessity of finality against the obvious need to protect the innocent from all-too-frequent errors, the case probes the viability and scope of the constitutionally-protected writ of habeas corpus, the procedural device for reviewing otherwise final judgments based on newly-discovered evidence.
This ancient legal right is deemed by scholars to be the single most important right inherited from the ancient Anglo-Saxon legal system and incorporated into the Constitution. Yet controversy has long swirled around habeas corpus on the question of whether it is aimed at assuring only that certain procedures be followed, or whether a case can be revisited, years or even decades later, if evidence arises that a convict turns out to be demonstrably innocent.
The MacDonald case puts front-and-center the pivotal question of whether the writ of habeas corpus should be available to the convicted, regardless of how many times a defendant has unsuccessfully attacked his conviction in the past. But this gets us ahead of the remarkable story of this case.
In 1970, the two young daughters and pregnant wife of Dr. Jeffrey R. MacDonald, an army physician stationed at Fort Bragg, North Carolina, were murdered. Such brutal slayings pock-marked an era of unparalleled tumult—a half year after the Manson Family murders, and two months after Altamont, at which four concert-goers died, the MacDonald murders underscored innocence lost.
It is perhaps for this reason that fascination surrounded the case. It didn’t hurt that the prime suspect—Jeffrey MacDonald himself—was a Princeton-educated Green Beret. Though badly injured, he survived. Could he have perpetrated the killings, and orchestrated an elaborate cover-up in which he even stabbed himself within less than an inch of his heart?
MacDonald told investigators that four drugged-out intruders, three men and one woman, invaded his home, beat him unconscious, and murdered his family. To this day, he has stuck unwaveringly to this account.
Early on, MacDonald’s version of events was lent credence when an Army judicial officer found no credible evidence to bring formal charges against him. Though tasked only with determining whether cause existed to bring the case to a formal court martial, the officer went one step further: he declared the allegations “not true” and recommended that civilian authorities investigate Helena Stoeckley, a possible suspect who fit MacDonald’s description of the female intruder. Importantly, immediately after MacDonald, seriously injured and woozy, phoned for emergency assistance, a military policeman speeding to the scene spotted a woman with long blond hair and a distinctive floppy hat standing in the rain on a street corner near the MacDonald home. The MP’s description of this woman very much lined up with MacDonald’s description of the female intruder, even though neither MacDonald nor the MP had heard the other’s description of her.
After MacDonald left the Army, U.S. Department of Justice prosecutors picked up the case, ignoring the Army investigator’s advice and instead focusing on MacDonald as their prime suspect. Nearly five years after his family was killed, MacDonald was indicted for murder. After a lengthy trial, he was convicted in July 1979 and sentenced to consecutive life sentences. Over the years the case became notorious for the mountain of evidence that the jurors did not hear.
It wasn’t long thereafter that a best-selling book by author Joe McGinniss, Fatal Vision, and a made-for-TV movie by the same name cemented MacDonald’s guilt in the public and judicial eye. His repeated attempts to have courts look anew at his conviction were, until recently, for naught.
This has been due to the doctrine of “finality” of criminal judgments. In the early 1990s, efforts to end post-verdict attacks on findings of guilt blossomed in all three branches of the federal government. In 1991, just days before my colleagues and I were to file a brief seeking a new trial for MacDonald, the Supreme Court, in McCleskey v. Zant, raised the bar for habeas corpus petitions. Despite accumulating evidence implicating Stoeckley and exonerating MacDonald, our petition, a federal district court ruled in 1991, did not overcome the heavy burden that suddenly favored finality.
Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, which further raised the bar for repetitive habeas claims, and so the federal courts again rebuffed MacDonald’s plea for review in 1997. The Court of Appeals in Richmond warned MacDonald’s lawyers (including me) to exercise caution before undertaking to file another petition.
MacDonald and his lawyers nonetheless persisted. Yet even as new evidence questioning his guilt mounted, lower courts were allowed to reject his requests for a new trial by relying on technicalities and viewing evidence in a piecemeal fashion. Finally, on April 19, 2011, the Court of Appeals for the Fourth Circuit ordered the lower court to sweep aside the technical barriers and, at long last, execute a “fresh analysis” of the “evidence as a whole”— hence the evidentiary hearing that took place last month in Wilmington. There has been much speculation over what prompted the Fourth Circuit court to take the dramatic step of ordering the lower court to review MacDonald’s conviction. My own view is that the enormous accretion of evidence of innocence finally overcame the notoriously conservative court’s reluctance to disturb a conviction that for so long has been deemed “final.”
The combination of two factors in the MacDonald case, not likely replicated in others, accounts for this remarkable turn-around. First, court-ordered DNA tests of crime-scene evidence revealed specimens found on the wife and one daughter that matched no one in the MacDonald family, thus pointing to unknown outside assailants. Second, a retired deputy United States Marshal, diagnosed with terminal cancer, swore as he was dying that he witnessed one of the prosecutors threatening Helena Stoeckley at the time of the trial. She appeared prepared to testify that she was with three friends at the scene of the crime; after this prosecutorial intervention, she suddenly backed down and had amnesia.
Three decades and countless hearings after the guilty verdict, MacDonald finally won the right to present the full panoply of evidence supporting his innocence at the long-awaited hearing the week of September 17th. If, as some have predicted, the federal district court judge in Wilmington again rules against MacDonald, the case will be back in the hands of the same Court of Appeals that finally saw the light and ordered the hearings after decades of judicial dawdling.
The enormity of the injustice done to Jeffrey MacDonald, as well as the case’s catastrophic effects on the criminal justice system as a whole, can be ascertained from a perusal of Academy Award-winning filmmaker Errol Morris’ recently released book, A Wilderness of Error: the Trials of Jeffrey MacDonald. Morris succeeded decades ago in helping free wrongly convicted Randall Dale Adams from death row with his 1988 film “The Thin Blue Line.” Now with A Wilderness of Error, Morris has aggregated a gigantic mass of evidence powerfully refuting the myths and lies that have kept Jeffrey MacDonald behind bars for 33 years. Morris’ book almost certainly will get noticed by the appellate court judges who ordered last month’s evidentiary hearing on the basis of the evidence accumulated before the book’s publication. A massive piece of investigative journalism that demonstrates a convict’s innocence, and the unfairness of the trial that arrived at the wrong conclusion, never escapes notice by the judges in whose hands is placed the + Comment now
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Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, which further raised the bar for repetitive habeas claims, and so the federal courts again rebuffed MacDonald’s plea for review in 1997. The Court of Appeals in Richmond warned MacDonald’s lawyers (including me) to exercise caution before undertaking to file another petition.
MacDonald and his lawyers nonetheless persisted. Yet even as new evidence questioning his guilt mounted, lower courts were allowed to reject his requests for a new trial by relying on technicalities and viewing evidence in a piecemeal fashion. Finally, on April 19, 2011, the Court of Appeals for the Fourth Circuit ordered the lower court to sweep aside the technical barriers and, at long last, execute a “fresh analysis” of the “evidence as a whole”— hence the evidentiary hearing that took place last month in Wilmington. There has been much speculation over what prompted the Fourth Circuit court to take the dramatic step of ordering the lower court to review MacDonald’s conviction. My own view is that the enormous accretion of evidence of innocence finally overcame the notoriously conservative court’s reluctance to disturb a conviction that for so long has been deemed “final.”
The combination of two factors in the MacDonald case, not likely replicated in others, accounts for this remarkable turn-around. First, court-ordered DNA tests of crime-scene evidence revealed specimens found on the wife and one daughter that matched no one in the MacDonald family, thus pointing to unknown outside assailants. Second, a retired deputy United States Marshal, diagnosed with terminal cancer, swore as he was dying that he witnessed one of the prosecutors threatening Helena Stoeckley at the time of the trial. She appeared prepared to testify that she was with three friends at the scene of the crime; after this prosecutorial intervention, she suddenly backed down and had amnesia.
Three decades and countless hearings after the guilty verdict, MacDonald finally won the right to present the full panoply of evidence supporting his innocence at the long-awaited hearing the week of September 17th. If, as some have predicted, the federal district court judge in Wilmington again rules against MacDonald, the case will be back in the hands of the same Court of Appeals that finally saw the light and ordered the hearings after decades of judicial dawdling.
The enormity of the injustice done to Jeffrey MacDonald, as well as the case’s catastrophic effects on the criminal justice system as a whole, can be ascertained from a perusal of Academy Award-winning filmmaker Errol Morris’ recently released book, A Wilderness of Error: the Trials of Jeffrey MacDonald. Morris succeeded decades ago in helping free wrongly convicted Randall Dale Adams from death row with his 1988 film “The Thin Blue Line.” Now with A Wilderness of Error, Morris has aggregated a gigantic mass of evidence powerfully refuting the myths and lies that have kept Jeffrey MacDonald behind bars for 33 years. Morris’ book almost certainly will get noticed by the appellate court judges who ordered last month’s evidentiary hearing on the basis of the evidence accumulated before the book’s publication. A massive piece of investigative journalism that demonstrates a convict’s innocence, and the unfairness of the trial that arrived at the wrong conclusion, never escapes notice by the judges in whose hands is placed the power to redeem both the system and the wrongly-convicted defendant’s life.
This case should force a re-examination of current habeas corpus law and its Byzantine procedural obstacles. Its fixing requires both legislative and judicial rethinking of the importance of juries and judges having access to the fullest array of available evidence. Currently, demonstration of “mere innocence” is not by itself deemed an adequate basis for release of a prisoner. Habeas corpus relief depends upon a combination of newly-discovered evidence plus a demonstration of innocence. And litigation over the meaning of “newly discovered” can itself take years and many trips up to appellate courts.
This notion should be condemned to the scrap heap of American judicial history. As University of Virginia Law Professor Brandon L. Garrett has written in his recent book, Convicting the Innocent, currently “the one claim that no convict can easily bring is a claim that he is innocent and should be freed for that reason alone.”
Garret’s work examines the common themes among the first 250 inmates that the Innocence Project, a nonprofit dedicated to exonerating the wrongfully convicted, has helped free to date, a development that owes its success in no small part to the advancement in DNA science. (The Innocence Project filed a friend-of-the-court brief supporting MacDonald.) Indeed, we’re living in an age of science and information, one that allows for the re-examination of verdicts often buried in history. But first the legal barriers to the presentation of facts—those most stubborn of things—must be removed. And when those facts add up to a picture of actual innocence, immediate release, rather than endless and obstructive procedural games, should be the result.
Saturday, October 20, 2012
Wednesday, October 10, 2012
Miriam Elliott: Time to abolish the death penalty
The following opinion was published by the Gainesville (Florida) Sun on October 7, 2012.
Once again a death row inmate has been exonerated. This time it is Damon Thibodeaux of Louisiana, exonerated after 15 years on death row. He makes the 300th person proven innocent by DNA evidence. This is living proof that the death penalty risks lives.
Some are not so lucky as to have their innocence proven.After 20 years of fighting to prove his innocence, Troy Anthony Davis was executed, in Georgia, one year ago on Sept 21st, 2011. Troy Davis was convicted of murdering an off-duty police officer primarily on the testimony of 9 people. Over time, all but 2 recanted their testimony, some claiming police coercion. One of the 2 remaining was a potential suspect in the case. There was no physical evidence linking Troy to the murder.
These cases underscore the reasons why the death penalty should be abolished. 141 people have been exonerated from U.S. death rows since 1973; 27 in Florida; others may have been executed despite serious doubt about their guilt. There is no convincing evidence that the death penalty has a special deterrent effect and capital prosecutions come with huge financial costs, far higher than ordinary criminal justice cases. The cost of the death penalty diverts resources from more constructive solutions, such as support for law enforcement and crime prevention and services for murder victims’ families. We can have justice without the death penalty.
The reality is that good people make mistakes and therefore the justice system makes mistakes. Life in prison without the possibility of parole protects us and punishes killers, but leaves open the possibility of correcting a wrongful conviction.
Connecticut, in May, became the fifth state in five years to abandon the death penalty, and other states are lining up to follow suit. When will Florida?
It's time to end the death penalty once and for all. I am certainly frustrated and saddened every time I hear of an inmate being exonerated, whether they are on death row or in the general prison population. Their unnecessary years of incarceration are a tragedy. And with advances in DNA testing it is happening with far too much frequency. The impact on the innocent person and their family is horrific. And the real perpetrator goes unpunished.
I'm a member of Floridians for Alternatives to the Death Penalty (www.fadp.org) and I invite everyone to reflect on this issue and to join this movement. Any killing of an innocent life is an outrage and when it is at the hands of our government it is barbaric. Wrongful convictions are the tragic consequence of our desire for revenge instead of our seeking real justice. Florida is long overdue to reform it's justice system and to eliminate a costly policy that threatens innocent lives.
Miriam Welly Elliott, Co-Coordinator
Gainesville Citizens for Alternatives to the Death Penalty
Once again a death row inmate has been exonerated. This time it is Damon Thibodeaux of Louisiana, exonerated after 15 years on death row. He makes the 300th person proven innocent by DNA evidence. This is living proof that the death penalty risks lives.
Some are not so lucky as to have their innocence proven.After 20 years of fighting to prove his innocence, Troy Anthony Davis was executed, in Georgia, one year ago on Sept 21st, 2011. Troy Davis was convicted of murdering an off-duty police officer primarily on the testimony of 9 people. Over time, all but 2 recanted their testimony, some claiming police coercion. One of the 2 remaining was a potential suspect in the case. There was no physical evidence linking Troy to the murder.
These cases underscore the reasons why the death penalty should be abolished. 141 people have been exonerated from U.S. death rows since 1973; 27 in Florida; others may have been executed despite serious doubt about their guilt. There is no convincing evidence that the death penalty has a special deterrent effect and capital prosecutions come with huge financial costs, far higher than ordinary criminal justice cases. The cost of the death penalty diverts resources from more constructive solutions, such as support for law enforcement and crime prevention and services for murder victims’ families. We can have justice without the death penalty.
The reality is that good people make mistakes and therefore the justice system makes mistakes. Life in prison without the possibility of parole protects us and punishes killers, but leaves open the possibility of correcting a wrongful conviction.
Connecticut, in May, became the fifth state in five years to abandon the death penalty, and other states are lining up to follow suit. When will Florida?
It's time to end the death penalty once and for all. I am certainly frustrated and saddened every time I hear of an inmate being exonerated, whether they are on death row or in the general prison population. Their unnecessary years of incarceration are a tragedy. And with advances in DNA testing it is happening with far too much frequency. The impact on the innocent person and their family is horrific. And the real perpetrator goes unpunished.
I'm a member of Floridians for Alternatives to the Death Penalty (www.fadp.org) and I invite everyone to reflect on this issue and to join this movement. Any killing of an innocent life is an outrage and when it is at the hands of our government it is barbaric. Wrongful convictions are the tragic consequence of our desire for revenge instead of our seeking real justice. Florida is long overdue to reform it's justice system and to eliminate a costly policy that threatens innocent lives.
Miriam Welly Elliott, Co-Coordinator
Gainesville Citizens for Alternatives to the Death Penalty
Monday, September 03, 2012
Editorial: Disproving proven theories that led to injustice
The following editorial was published by the Chicago Sun-Times on September 1, 2012.
Too often, cutting-edge scientific theories send people to prison only to turn out to have more holes than Swiss cheese.
here was the medical theory — later discredited — that helped land about 30 adults from Bakersfield, Calif., in prison for sexually abusing children in the 1990s.
There were the arson theories that helped send Cameron Todd Willingham to a Texas execution chamber in 2004, only to be rejected later by other experts relying on advances in fire science.
There was the theory of identifiable unique shoe-wear patterns that helped send at least eight men to prison for life in the United States and Canada in the 1980s before scientists concluded the whole idea was fiction.
So when a case involving the theory of “shaken-baby syndrome” returns to the DuPage County courthouse this fall, the theory should be put under a microscope. Only proof that puts all doubt to rest will suffice.
A decade or so ago, many medical experts thought that a “triad” of symptoms in a dead infant — bleeding behind the retinas, brain swelling and bleeding on the brain surface — could be caused only by major trauma, such as a car wreck, or by violent shaking.
If those symptoms were found in a baby or young child who died — and no major trauma occurred — it followed that the baby died by violent shaking at the hands of a caregiver. No witness to the shaking was really necessary. Thousands of Americans have been sent to prison based on medical shaken-baby evidence.
But here’s where the doubt comes in. In the intervening years, some medical experts have traced the “triad” of symptoms to other causes. Even Norman Guthkelch, the Evanston pediatric neurosurgeon who was among the first to describe shaken-baby syndrome, has his doubts about how the diagnosis is used in court. Sometimes, he says, illness can cause the same symptoms.
Other scientists say the symptoms could even be caused by ordinary falls.
Shaken-baby medical evidence is at the heart of the case of Pamela Jacobazzi, 57, a former Bartlett day care owner who was convicted 13 years ago of murdering a 10-month-old boy. She was sentenced to 32 years.
Jacobazzi didn’t confess, and no witness saw her shaking the child. But at the time of her trial, symptoms of shaken-baby syndrome were enough.
DuPage County State’s Attorney Robert Berlin has said prosecutors are prepared to defend the conviction at a new evidentiary hearing scheduled for November.
At the hearing, new science that wasn’t available at the time of trial will be presented, as well as pediatric records that the defense will argue show the child’s symptoms could have been caused by disease.
“The general consensus is that the medical evidence used at her trial is no longer valid,” said Bill Clutter, of the Illinois Innocence Project, which is working on behalf of Jacobazzi.
And DuPage County lawyer Terry Ekl, who defended a similar shaken-baby case in DuPage County, said authorities should be wary of basing a case largely on shaken-baby syndrome: “Everybody wants to see someone be convicted when a baby dies.”
But, he said, “I think this is an area where there are innocent people in jail who have been convicted as a result of flawed theories.”
The medical evidence in this case must be weighed carefully. If any doubt remains, this conviction must be overturned.
Too often, cutting-edge scientific theories send people to prison only to turn out to have more holes than Swiss cheese.
here was the medical theory — later discredited — that helped land about 30 adults from Bakersfield, Calif., in prison for sexually abusing children in the 1990s.
There were the arson theories that helped send Cameron Todd Willingham to a Texas execution chamber in 2004, only to be rejected later by other experts relying on advances in fire science.
There was the theory of identifiable unique shoe-wear patterns that helped send at least eight men to prison for life in the United States and Canada in the 1980s before scientists concluded the whole idea was fiction.
So when a case involving the theory of “shaken-baby syndrome” returns to the DuPage County courthouse this fall, the theory should be put under a microscope. Only proof that puts all doubt to rest will suffice.
A decade or so ago, many medical experts thought that a “triad” of symptoms in a dead infant — bleeding behind the retinas, brain swelling and bleeding on the brain surface — could be caused only by major trauma, such as a car wreck, or by violent shaking.
If those symptoms were found in a baby or young child who died — and no major trauma occurred — it followed that the baby died by violent shaking at the hands of a caregiver. No witness to the shaking was really necessary. Thousands of Americans have been sent to prison based on medical shaken-baby evidence.
But here’s where the doubt comes in. In the intervening years, some medical experts have traced the “triad” of symptoms to other causes. Even Norman Guthkelch, the Evanston pediatric neurosurgeon who was among the first to describe shaken-baby syndrome, has his doubts about how the diagnosis is used in court. Sometimes, he says, illness can cause the same symptoms.
Other scientists say the symptoms could even be caused by ordinary falls.
Shaken-baby medical evidence is at the heart of the case of Pamela Jacobazzi, 57, a former Bartlett day care owner who was convicted 13 years ago of murdering a 10-month-old boy. She was sentenced to 32 years.
Jacobazzi didn’t confess, and no witness saw her shaking the child. But at the time of her trial, symptoms of shaken-baby syndrome were enough.
DuPage County State’s Attorney Robert Berlin has said prosecutors are prepared to defend the conviction at a new evidentiary hearing scheduled for November.
At the hearing, new science that wasn’t available at the time of trial will be presented, as well as pediatric records that the defense will argue show the child’s symptoms could have been caused by disease.
“The general consensus is that the medical evidence used at her trial is no longer valid,” said Bill Clutter, of the Illinois Innocence Project, which is working on behalf of Jacobazzi.
And DuPage County lawyer Terry Ekl, who defended a similar shaken-baby case in DuPage County, said authorities should be wary of basing a case largely on shaken-baby syndrome: “Everybody wants to see someone be convicted when a baby dies.”
But, he said, “I think this is an area where there are innocent people in jail who have been convicted as a result of flawed theories.”
The medical evidence in this case must be weighed carefully. If any doubt remains, this conviction must be overturned.
Tuesday, August 14, 2012
The Skeptical Juror and the Texas Condemned Man
The Skeptical Juror and the Texas Condemned Man
by David Protess
Originally posted at HuffPost Chicago on August 14, 2012.
He is an unlikely watchdog over the criminal justice system, a 64-year-old former aerospace engineer from Southern California with no formal legal training. Yet his blog, The Skeptical Juror, has rapidly become must-reading for journalists, lawyers and lay persons interested in wrongful conviction cases that otherwise might escape attention.
Meet the man behind the blog, J. Bennett Allen, who stopped an injustice in its tracks as a juror in a 2007 child molestation trial. Allen, the foreperson, came to believe the defendant was innocent. The 11 other jurors thought otherwise. Using his training as an engineer, Allen skeptically questioned each piece of evidence until -- in a scene that reprised Henry Fonda's 12 Angry Men -- he converted all but two of the jurors. The judge declared a mistrial, the defendant was eventually freed and Allen morphed from a skeptical juror to The Skeptical Juror.
"It was eye-opening to see how easily an innocent man could have been convicted," Allen recently told me. The experience compelled him to begin scrutinizing court records in other cases, and his blog was born. Altogether, Allen has deconstructed the evidence in 97 criminal cases and written four books about wrongful convictions, including The Skeptical Juror and the Trial of Todd Cameron Willingham -- about a Texas man who was executed for a crime he likely did not commit.
Now he is faced with his "most daunting" case, one that involves another Texas death row prisoner. And he worries that his scientific assessment of the condemned man's innocence will fall on deaf ears.
Allen has cause for concern. The clock is ticking for Preston Hughes, 46, who won't turn 47 this Christmas Eve if Texas lawmen have their way. Hughes is scheduled for execution on Nov. 15 for the 1988 stabbing deaths of a teenage girl and her 3-year-old cousin in west Houston.
Allen acknowledges that the case against Hughes seems, at first blush, to be "insurmountable." He confessed his guilt not once, but twice. As troubling, the teenager uttered Hughes' name before she died, the authorities said. Physical evidence? A knife said to be the murder weapon was found in Hughes' apartment, not far from the crime scene, and there was evidence of blood on his clothing. And what were the teen's eyeglasses doing on Hughes' couch, discovered during a police search?
But Hughes has steadfastly professed his innocence since his arrest, and Allen decided to revisit the evidence, as he had as a juror. "I was curious," he said, "and a bit suspicious" because of irregularities by Houston's crime lab in previous cases. The more Allen looked, the more skeptical he became.
After poring over documents and interviewing experts, Allen became convinced that Hughes had been wrongfully convicted. Since March, he has posted 49 blogs that reveal the following:
In light of Allen's digging, will Hughes be freed? It's unlikely. Although 12 condemned prisoners in Texas have been exonerated in recent years -- the third highest number of death row exonerations of any state -- Hughes is facing an uphill battle.
The biggest obstacle: He is black and poor and does not have a legal team that is pushing for a new trial based on factual innocence. Just as a court-appointed lawyer failed to spot the holes in Texas' case at the time of Hughes' trial, another court-appointed lawyer has similarly let him down in what could be the final three months of his life.
It is inspiring that J. Bennett Allen has relentlessly challenged Texas' version of the evidence. But it is equally dismaying that this scientist-turned-blogger might be a condemned man's last hope.
by David Protess
Originally posted at HuffPost Chicago on August 14, 2012.
He is an unlikely watchdog over the criminal justice system, a 64-year-old former aerospace engineer from Southern California with no formal legal training. Yet his blog, The Skeptical Juror, has rapidly become must-reading for journalists, lawyers and lay persons interested in wrongful conviction cases that otherwise might escape attention.
Meet the man behind the blog, J. Bennett Allen, who stopped an injustice in its tracks as a juror in a 2007 child molestation trial. Allen, the foreperson, came to believe the defendant was innocent. The 11 other jurors thought otherwise. Using his training as an engineer, Allen skeptically questioned each piece of evidence until -- in a scene that reprised Henry Fonda's 12 Angry Men -- he converted all but two of the jurors. The judge declared a mistrial, the defendant was eventually freed and Allen morphed from a skeptical juror to The Skeptical Juror.
"It was eye-opening to see how easily an innocent man could have been convicted," Allen recently told me. The experience compelled him to begin scrutinizing court records in other cases, and his blog was born. Altogether, Allen has deconstructed the evidence in 97 criminal cases and written four books about wrongful convictions, including The Skeptical Juror and the Trial of Todd Cameron Willingham -- about a Texas man who was executed for a crime he likely did not commit.
Now he is faced with his "most daunting" case, one that involves another Texas death row prisoner. And he worries that his scientific assessment of the condemned man's innocence will fall on deaf ears.
Allen has cause for concern. The clock is ticking for Preston Hughes, 46, who won't turn 47 this Christmas Eve if Texas lawmen have their way. Hughes is scheduled for execution on Nov. 15 for the 1988 stabbing deaths of a teenage girl and her 3-year-old cousin in west Houston.
Allen acknowledges that the case against Hughes seems, at first blush, to be "insurmountable." He confessed his guilt not once, but twice. As troubling, the teenager uttered Hughes' name before she died, the authorities said. Physical evidence? A knife said to be the murder weapon was found in Hughes' apartment, not far from the crime scene, and there was evidence of blood on his clothing. And what were the teen's eyeglasses doing on Hughes' couch, discovered during a police search?
But Hughes has steadfastly professed his innocence since his arrest, and Allen decided to revisit the evidence, as he had as a juror. "I was curious," he said, "and a bit suspicious" because of irregularities by Houston's crime lab in previous cases. The more Allen looked, the more skeptical he became.
After poring over documents and interviewing experts, Allen became convinced that Hughes had been wrongfully convicted. Since March, he has posted 49 blogs that reveal the following:
- The confessions. Allen discovered that the confessions were not only mutually inconsistent, but both were fundamentally at odds with the crime scene evidence. For example, Hughes confessed to wildly stabbing the victims, but in fact each was killed with two precisely inflicted wounds. The confessions were taken in the middle of the night and not videotaped.
- The dying declaration. Reviewing the autopsy report of the teen's body, Allen noticed that her carotid artery and jugular vein had been severed. Consulting the scientific literature and a noted pathologist, he learned that the victim would have lost brain function within 90 seconds -- at most. Since the first cop did not arrive at the scene for at least 15 minutes, the victim could not possibly have identified Preston Hughes, or anyone else, as her assailant.
- The murder weapon. Using 3-D and 2-D models, and the forensic evidence, Allen determined that the neck wounds on both victims were made with a double-edged blade approximately 5/8 inches wide. But Hughes' knife has a single-edge blade approximately 1 inch wide. Allen concluded that it was "impossible" for Hughes' knife to have been the murder weapon. As for the blood on the knife, the Houston crime lab was unable to link it to either victim.
- The bloodied clothing. Reading the trial testimony revealed to Allen that no blood was actually found on Hughes' clothing. A crime lab official may have misled the jury into believing that a positive preliminary test for blood was proof of its presence. In fact, follow-up tests did not determine that spots on the clothing were human blood.
- The eyeglasses. The authorities claimed that the teen victim's glasses were found on Hughes' couch during a search, but Allen checked the initial inventory of items taken from the apartment and noticed that the glasses were not listed. Suspiciously, they later appeared in a photograph of the couch. In his latest post about the case, he opined that the glasses were most likely planted by police.
In light of Allen's digging, will Hughes be freed? It's unlikely. Although 12 condemned prisoners in Texas have been exonerated in recent years -- the third highest number of death row exonerations of any state -- Hughes is facing an uphill battle.
The biggest obstacle: He is black and poor and does not have a legal team that is pushing for a new trial based on factual innocence. Just as a court-appointed lawyer failed to spot the holes in Texas' case at the time of Hughes' trial, another court-appointed lawyer has similarly let him down in what could be the final three months of his life.
It is inspiring that J. Bennett Allen has relentlessly challenged Texas' version of the evidence. But it is equally dismaying that this scientist-turned-blogger might be a condemned man's last hope.
Saturday, August 04, 2012
Two Important Documentary Film Projects About Wrongful Conviction
Two young documentary filmmakers, Sheila Sofian and Nicholas Kleczewski, are seeking support to help bring their projects to completion. Both projects -- Ms. Sofian's TRUTH HAS FALLEN and Mr. Kleczewski's SEALED FATE -- address the issue of wrongful conviction. DNA has forced the American public to admit what police, lawyers and judges have always known, that innocent people are convicted every day. Ms Sofian and Mr. Kleczewski go beyond the laboratory exonerations, however, and expose the roles of witness perjury, police and prosecutor misconduct, and "tough on innocence" judges. Here, in their own words, these filmmakers share their visions, and offer us the opportunity to become part of it.
For over ten years I have been working on the film “Truth Has Fallen,” an animated/live action documentary about wrongful convictions. This film examines the cases of three people who were convicted for murders they did not commit, and highlights weaknesses in our justice system. Painted animation expresses the fury and grief of their testimony, and represents their version of events. Surreal live action film portrays the experts’ testimony, providing a more detached perspective. “Truth Has Fallen “ exposes causes of wrongful convictions, such as the inaccuracy of eyewitness identification, the unreliability of “snitch” testimony, and forced confessions. Experts advocate for relatively simple changes to our justice system in order to reduce the rate of wrongful convictions. A massive undertaking, I have so far animated over 30 minutes of footage in 7 years (over 22,000 individual paintings.)
Please consider supporting this film. After all these years the animation and live action has been shot. I need to raise the money to hire a composer and sound editor, and for post-production lab expenses in order to take this film to the finish line.
You can view the campaign HERE, which includes a trailer of the film. A Longer trailer is available HERE. For more information on the film you can check out the website: TruthHasFallenMovie.com
Thank you for your support! -- Sheila Sofian
SEALED FATE
I'm Nicholas Kleczewski a full time editor and documentary filmmaker. I'm not one for talking about myself much, but as a constant kickstarter backer myself, I know how important establishing legitimacy to a project can be. I've directed and or edited seven feature documentaries, worked directly with big music artists like Beyonce, Tina Turner, Pink, etc, my films have appeared in over 40 film festivals worldwide and I've won numerous awards including the Audience and Grand Jury Awards for Best Documentary at Slamdance which runs during the Sundance Film Festival. Some of the other festival wins with my work is shown below. My latest reel as a commercial director/editor can be found at www.trsociety.com.
SEALED FATE is a feature documentary about two Navy SEAL trainees who were convicted of one of the most famous murders in Hampton Roads Virginia history. The case was highly publicized and quickly became a media frenzy. The film follows the news reporting of the time but also goes deeper with interviews, footage, reenactments, facts and analysis from everyone involved with the case. Not only is the case covered in great detail with everyone involved but it is also gives the audience a closer look into Navy SEAL training and culture than nearly any film has shown before due to unprecendeted footage access at BUD/S, the Navy SEAL training program. But like any great documentary, what seems to be just a retelling of a notable story from the past quickly transforms into something much more. We don't want to give that away completely, but since we are asking you to invest in this project we will say that as you can see in the promo trailer above, things are not as they seem, who's guilty, who isn't, who was motivated for personal or political gain and who just wanted justice no matter the cost quickly come to light and by the end the audience will have a whole different take on the story then when it began.
I've launched a kickstarter project to help raise funding to complete the long in development film and all the info you could ever want to know and a trailer can be found at: SEALED FATE
Thanks so much for your support! -- Nick Kleczewski
TRUTH HAS FALLEN
For over ten years I have been working on the film “Truth Has Fallen,” an animated/live action documentary about wrongful convictions. This film examines the cases of three people who were convicted for murders they did not commit, and highlights weaknesses in our justice system. Painted animation expresses the fury and grief of their testimony, and represents their version of events. Surreal live action film portrays the experts’ testimony, providing a more detached perspective. “Truth Has Fallen “ exposes causes of wrongful convictions, such as the inaccuracy of eyewitness identification, the unreliability of “snitch” testimony, and forced confessions. Experts advocate for relatively simple changes to our justice system in order to reduce the rate of wrongful convictions. A massive undertaking, I have so far animated over 30 minutes of footage in 7 years (over 22,000 individual paintings.)
Please consider supporting this film. After all these years the animation and live action has been shot. I need to raise the money to hire a composer and sound editor, and for post-production lab expenses in order to take this film to the finish line.
You can view the campaign HERE, which includes a trailer of the film. A Longer trailer is available HERE. For more information on the film you can check out the website: TruthHasFallenMovie.com
Thank you for your support! -- Sheila Sofian
SEALED FATE
SEALED FATE
I'm Nicholas Kleczewski a full time editor and documentary filmmaker. I'm not one for talking about myself much, but as a constant kickstarter backer myself, I know how important establishing legitimacy to a project can be. I've directed and or edited seven feature documentaries, worked directly with big music artists like Beyonce, Tina Turner, Pink, etc, my films have appeared in over 40 film festivals worldwide and I've won numerous awards including the Audience and Grand Jury Awards for Best Documentary at Slamdance which runs during the Sundance Film Festival. Some of the other festival wins with my work is shown below. My latest reel as a commercial director/editor can be found at www.trsociety.com.
SEALED FATE is a feature documentary about two Navy SEAL trainees who were convicted of one of the most famous murders in Hampton Roads Virginia history. The case was highly publicized and quickly became a media frenzy. The film follows the news reporting of the time but also goes deeper with interviews, footage, reenactments, facts and analysis from everyone involved with the case. Not only is the case covered in great detail with everyone involved but it is also gives the audience a closer look into Navy SEAL training and culture than nearly any film has shown before due to unprecendeted footage access at BUD/S, the Navy SEAL training program. But like any great documentary, what seems to be just a retelling of a notable story from the past quickly transforms into something much more. We don't want to give that away completely, but since we are asking you to invest in this project we will say that as you can see in the promo trailer above, things are not as they seem, who's guilty, who isn't, who was motivated for personal or political gain and who just wanted justice no matter the cost quickly come to light and by the end the audience will have a whole different take on the story then when it began.
I've launched a kickstarter project to help raise funding to complete the long in development film and all the info you could ever want to know and a trailer can be found at: SEALED FATE
Thanks so much for your support! -- Nick Kleczewski
Thursday, August 02, 2012
A Novel Approach
And, of course, Ray can write. His characters spring to life, fully formed and three-dimensional. We love them or we hate them, we understand them or we are confounded by them. They are REAL to us, because Ray makes them real. It's a rare gift.
Ray's second novel, TAMPA BAY BLUES, has just been published. The back cover gives a brief -- and tantalizing -- description:
TAMPA BAY BLUES takes you deep into the fellowship of Alcoholics Anonymous and the unsettling world of police interrogation techniques.
Ex-Public Defender Woody Thomas’ friend from Alcoholics Anonymous, David Ingel, is murdered and Woody represents Robbie Battles, a mutual friend from AA who is charged with murdering David during an alcoholic blackout. Woody turns to detective Kyle Murdock, a former Navy SEAL, for help in an investigation that leads from the horse country of Ocala, to suburban Tampa and the beaches of Tampa Bay.
Unfortunately, Robbie Battles has confessed to the murder, the police have a murder weapon, and David's beautiful widow has a snub-nosed .38 Special and a passion for revenge.
You can find and purchase TAMPA BAY BLUES at Amazon any time. But from August 3 to August 5, you can download the Kindle version -- FREE. Click HERE to check it out. Even if you miss the free download, don't miss the opportunity to meet Ray's characters. You'll never forget them.
And more good news -- Ray's first novel, DEATH ROW DEFENDER, is being re-released as CLEARWATER RUN. Check for it at Amazon in September (2012).
Sunday, July 22, 2012
Innocence Commission: Justice Worth Price
The follow editorial was published by The Ledger on July 21, 2012.
A commission that was set up to propose ways for Florida to avoid convicting innocent people has finished its work. It came up with several concrete recommendations — mostly already proven effective in other states — but its major proposal boiled down to one word.
Money.
More specifically, the Florida Innocence Commission said the state's criminal-justice system doesn't have enough money to function properly and prevent grievous injustices from occurring.
That's not a problem unique to the criminal courts, of course. The Legislature has been cutting and slashing agencies from all three branches of government for several years, with no relief in sight. The chronically weak economy isn't the Legislature's fault. The blame for that goes far beyond Florida's — and America's — borders.
But one thing that is the Legislature's fault is its absolute refusal to even consider any form of new revenue, regardless of how equitable it might be. Sometimes, cost cutting can be even more expensive than meeting needs head-on.
One major example given by the Innocence Commission — which was created by the Florida Supreme Court — is a law passed this year that tightens up the amount of money the state will allow lawyers to be paid for representing indigent defendants who can't be represented by public defenders for various reasons. It sets a maximum compensation for defending the most serious crimes at $15,000 in capital cases. In many instances, a lawyer would be paid less than the state's minimum wage.
EFFECTIVE LAWYERS NEEDED
What kinds of lawyers would be willing to accept such a fee system? Would you want one of them defending you? The Innocence Commission, which included a number of prosecutors and law-enforcement officials, said no — unanimously. The commission said the fee system "invites ineffective assistance of counsel and wrongful convictions."
Commission Chairman Belvin Perry, a circuit judge from Orlando who has presided over many high-profile criminal cases, spelled it out: "Someone in jail who is wrongfully convicted, or someone who is inexperienced, has to battle in court against experienced attorneys. The only thing the criminal-justice system has is the confidence that people have in it. The underfunding of this system in this state is going to lead us to a situation where people will look at the system and have no faith or confidence in it.
"We hear about the executive branch hiring out-of-state counsel for three to four hundred dollars an hour. It would be one thing if we start paying someone one hundred to one hundred twenty-five dollars an hour to represent a person charged with murder in the first degree, considering the state wants to impose the ultimate sanction to forfeit that person's life. Now an attorney has to sign an agreement to take $15,000 for a case lasting more than a year. That is a mockery in and of itself. When we have 10-20-life, we still have to give the person a chance to come to court and require the state to prove guilt. I challenge you to pull out the Declaration of Independence and read what led to this country breaking away from England. Read what the King of England did and ask if we are heading down that path."
The commission said court-appointed defense attorneys should be paid on the basis of the level of felony involved, without flat fees.
JURY INSTRUCTIONS
The commission also recommended that jurors be instructed to use caution in accepting the testimony of jailhouse "snitches," who may expect a reward for cooperating with prosecutors. It also urged that steps be taken to ensure that a witness' identification of a criminal defendant isn't prompted by the actions of police or prosecutors, or that confessions haven't been coerced or obtained through egregious deception. The commission also said the court system needs to take better notice of cases in which attorney misconduct has been persuasively shown.
And it urged that more money be spent in DNA testing and record-keeping, because DNA testing has resulted in the freeing of many innocent people who were convicted of crimes before the tests were available.
Some of the commission's proposed reforms were incorporated in a bill proposed in the 2012 legislative session by Sen. Joe Negron, R-Stuart, who was a member of the commission. The bill didn't pass, so the Legislature should resolve now to make these reforms a much higher priority for the 2013 session.
A commission that was set up to propose ways for Florida to avoid convicting innocent people has finished its work. It came up with several concrete recommendations — mostly already proven effective in other states — but its major proposal boiled down to one word.
Money.
More specifically, the Florida Innocence Commission said the state's criminal-justice system doesn't have enough money to function properly and prevent grievous injustices from occurring.
That's not a problem unique to the criminal courts, of course. The Legislature has been cutting and slashing agencies from all three branches of government for several years, with no relief in sight. The chronically weak economy isn't the Legislature's fault. The blame for that goes far beyond Florida's — and America's — borders.
But one thing that is the Legislature's fault is its absolute refusal to even consider any form of new revenue, regardless of how equitable it might be. Sometimes, cost cutting can be even more expensive than meeting needs head-on.
One major example given by the Innocence Commission — which was created by the Florida Supreme Court — is a law passed this year that tightens up the amount of money the state will allow lawyers to be paid for representing indigent defendants who can't be represented by public defenders for various reasons. It sets a maximum compensation for defending the most serious crimes at $15,000 in capital cases. In many instances, a lawyer would be paid less than the state's minimum wage.
EFFECTIVE LAWYERS NEEDED
What kinds of lawyers would be willing to accept such a fee system? Would you want one of them defending you? The Innocence Commission, which included a number of prosecutors and law-enforcement officials, said no — unanimously. The commission said the fee system "invites ineffective assistance of counsel and wrongful convictions."
Commission Chairman Belvin Perry, a circuit judge from Orlando who has presided over many high-profile criminal cases, spelled it out: "Someone in jail who is wrongfully convicted, or someone who is inexperienced, has to battle in court against experienced attorneys. The only thing the criminal-justice system has is the confidence that people have in it. The underfunding of this system in this state is going to lead us to a situation where people will look at the system and have no faith or confidence in it.
"We hear about the executive branch hiring out-of-state counsel for three to four hundred dollars an hour. It would be one thing if we start paying someone one hundred to one hundred twenty-five dollars an hour to represent a person charged with murder in the first degree, considering the state wants to impose the ultimate sanction to forfeit that person's life. Now an attorney has to sign an agreement to take $15,000 for a case lasting more than a year. That is a mockery in and of itself. When we have 10-20-life, we still have to give the person a chance to come to court and require the state to prove guilt. I challenge you to pull out the Declaration of Independence and read what led to this country breaking away from England. Read what the King of England did and ask if we are heading down that path."
The commission said court-appointed defense attorneys should be paid on the basis of the level of felony involved, without flat fees.
JURY INSTRUCTIONS
The commission also recommended that jurors be instructed to use caution in accepting the testimony of jailhouse "snitches," who may expect a reward for cooperating with prosecutors. It also urged that steps be taken to ensure that a witness' identification of a criminal defendant isn't prompted by the actions of police or prosecutors, or that confessions haven't been coerced or obtained through egregious deception. The commission also said the court system needs to take better notice of cases in which attorney misconduct has been persuasively shown.
And it urged that more money be spent in DNA testing and record-keeping, because DNA testing has resulted in the freeing of many innocent people who were convicted of crimes before the tests were available.
Some of the commission's proposed reforms were incorporated in a bill proposed in the 2012 legislative session by Sen. Joe Negron, R-Stuart, who was a member of the commission. The bill didn't pass, so the Legislature should resolve now to make these reforms a much higher priority for the 2013 session.
Wednesday, July 18, 2012
The dark side of forensic science
The following opinion by The Editorial Board of the Washington Post was published on July 16, 2012.
KIRK L. ODOM is innocent.
Federal prosecutors finally have confirmed that Mr. Odom was wrongfully convicted of a 1981 D.C. rape, for which he served 20 years in prison. Mr. Odom was sentenced at age 18; this nightmare has consumed more than half his life, and all because of errors in forensic techniques.
Worse still is that he isn’t alone. As The Post’s Spencer Hsu and others reported in a series of investigative articles this spring, similar errors have led to the convictions of two other men in the District: Santae A. Tribble, who served 28 years in prison, before a judge overturned his conviction in May, and Donald E. Gates, who served the same number of years for a 1981 Rock Creek rape and murder he didn’t commit.
These three cases should serve as a call to explore forensic errors that could have put more innocent men behind bars — or could do so in the future. In the wake of The Post’s reports, the Justice Department and the FBI announced last Tuesday the largest-ever post-conviction review, which will examine all cases after 1985 that relied on hair and fiber examinations. This is necessary and long overdue.
However, while the review’s results almost surely will uncover deficiencies in previous uses of forensic evidence, many flawed practices — including hair-sample analysis — are no longer in standard usage. Beyond finding and acknowledging errors of the past, a focus should be on taking every conceivable step to eliminate future wrongful convictions.
In terms of forensics, there’s still considerable work to do. As the National Academy of Sciences recommended in a 2009 report to Congress: “Research is needed to address issues of accuracy, reliability, and validity in the forensic science disciplines.” Although hair-sample analysis may be obsolete, uncertainty attaches to other techniques still in common use, such as firearm examination and fingerprint analysis. To that end, Sens. Patrick J. Leahy (D-Vt.) and John D. Rockefeller IV (D-W.Va.) each have proposed bills that would, among other things, promote more scientific research and develop uniform forensic standards. These reforms are critical steps that should have been enacted long ago, and they should be enacted without further delay.
U.S. Attorney Ronald C. Machen Jr. expressed his office’s sympathy with Mr. Odom: “Though we can never give him back the years that he lost,” he wrote, “we can give Mr. Odom back his unfairly tarnished reputation.” He’s right: No amount of recompense — financial or otherwise — could right the wrongs done to Mr. Odom, Mr. Tribble, Mr. Gates and however many others have been wrongfully convicted.
All the more reason to take every possible step to avoid similar mistakes in the future.
KIRK L. ODOM is innocent.
Federal prosecutors finally have confirmed that Mr. Odom was wrongfully convicted of a 1981 D.C. rape, for which he served 20 years in prison. Mr. Odom was sentenced at age 18; this nightmare has consumed more than half his life, and all because of errors in forensic techniques.
Worse still is that he isn’t alone. As The Post’s Spencer Hsu and others reported in a series of investigative articles this spring, similar errors have led to the convictions of two other men in the District: Santae A. Tribble, who served 28 years in prison, before a judge overturned his conviction in May, and Donald E. Gates, who served the same number of years for a 1981 Rock Creek rape and murder he didn’t commit.
These three cases should serve as a call to explore forensic errors that could have put more innocent men behind bars — or could do so in the future. In the wake of The Post’s reports, the Justice Department and the FBI announced last Tuesday the largest-ever post-conviction review, which will examine all cases after 1985 that relied on hair and fiber examinations. This is necessary and long overdue.
However, while the review’s results almost surely will uncover deficiencies in previous uses of forensic evidence, many flawed practices — including hair-sample analysis — are no longer in standard usage. Beyond finding and acknowledging errors of the past, a focus should be on taking every conceivable step to eliminate future wrongful convictions.
In terms of forensics, there’s still considerable work to do. As the National Academy of Sciences recommended in a 2009 report to Congress: “Research is needed to address issues of accuracy, reliability, and validity in the forensic science disciplines.” Although hair-sample analysis may be obsolete, uncertainty attaches to other techniques still in common use, such as firearm examination and fingerprint analysis. To that end, Sens. Patrick J. Leahy (D-Vt.) and John D. Rockefeller IV (D-W.Va.) each have proposed bills that would, among other things, promote more scientific research and develop uniform forensic standards. These reforms are critical steps that should have been enacted long ago, and they should be enacted without further delay.
U.S. Attorney Ronald C. Machen Jr. expressed his office’s sympathy with Mr. Odom: “Though we can never give him back the years that he lost,” he wrote, “we can give Mr. Odom back his unfairly tarnished reputation.” He’s right: No amount of recompense — financial or otherwise — could right the wrongs done to Mr. Odom, Mr. Tribble, Mr. Gates and however many others have been wrongfully convicted.
All the more reason to take every possible step to avoid similar mistakes in the future.
Sunday, June 24, 2012
Wrongful Convictions: Justice Denied
An innocent person wrongfully imprisoned is the stuff of Hollywood movies, real-life TV shows — and authoritarian regimes. It is also, tragically, the story of too many men in Virginia's prison system.
A new study — the most authoritative to date — based on DNA testing indicates that at least 8 percent, and perhaps as many as 15 percent, of persons convicted of sexual-assault crimes during the 15-year-period studied may be innocent. This is horrifying news.
It is horrifying on a number of levels. One is the grave injustice done to those who are branded sex offenders and consigned to a miserable life behind bars for years on end, though they have done nothing wrong. And though the prisoners' families are not locked up, they suffer right alongside them. Imagine having a father, son or brother consigned to barred hell through no fault of his own. (Those who say guests of the prison system have a soft and easy life are invited to try it for a few months and see for themselves.)
Wrongful imprisonment also compounds that injustice by letting the real perpetrator go free — perhaps to commit further heinous acts. From the perspective of deterrence and punishment, locking up the wrong person is even worse than leaving a case unsolved. At least in an unsolved case, the authorities know the perpetrator is still out there somewhere. With a wrongful conviction, they can rest easy in the false belief they have put him away.
What's more, wrongful conviction victimizes all over again those who have suffered sexual assault — who find themselves stripped of the comfort of knowing their attackers are behind bars. And finally, it diminishes public confidence in the criminal-justice system.
Police and prosecutors do their best. Many of them enter their professions precisely because they are motivated by a powerful thirst for justice and a felt duty to root out evil. But like everyone else on the planet, those who work in law enforcement fall short of perfection. The Urban Institute report on wrongful convictions shows the extent to which human shortcomings can combine to create systemic failure.
The report does not provide the final word. Much more scrutiny and analysis are in order. But the report should serve as a call to action for state lawmakers. It also should sound alarms elsewhere. Virginia's DNA testing project sets the commonwealth apart from and above the other 49 states, which have undertaken no such examination. Perhaps they should.
Saturday, June 16, 2012
She's Innocent. We're Guilty.
The following op-ed by Julia Baird was published by the New York Times on June 15, 2012.
Sydney, Australia
ULURU, the large red rock in the Australian outback, is a sacred site for aboriginal people. Photographs do not convey how dramatically it looms: an enormous crimson heart in the middle of thousands of miles of flat, muted desert.
It was here, on Aug. 17, 1980, that a dingo — an Australian wild dog — dragged a baby called Azaria Chamberlain from a tent as her parents sat by the campfire. Her body was never found.
Azaria’s desperate mother, Lindy, was accused of lying, convicted of murder and sent to prison. The film about her, “A Cry in the Dark,” starring Meryl Streep, spawned a thousand jokes: “A dingo’s got my baby!” It was not until this week that Lindy and her ex-husband, Michael, were finally given the vindication they longed for: a death certificate that stated that the cause of Azaria’s death was a dingo attack.
Why did it take three decades, tens of millions of dollars, a criminal case appealed in Australia’s highest court, a royal commission and four inquests to establish Lindy Chamberlain’s innocence? In that time, Australia’s population grew from 14.5 million to almost 23 million. The case has been a spectacular example of poor forensic science, anxiety about “evil mothers” and suspicion of religiosity — the Chamberlains are members of the Seventh-day Adventist Church, which was wrongly portrayed as an infant-slaying cult. Rumors circulated that Azaria meant “sacrifice in the wilderness” in Hebrew, not “blessed of God.”
Most Australians thought the dingo was a flimsy excuse. Few people, except park rangers, believed a dingo would attack a baby, and the evidence indigenous trackers gave about drag marks near the tent was brushed aside. In a 1984 poll, 76.8 percent of Australians said Lindy Chamberlain was guilty, and the investigation did little to change their minds.
Then there was Lindy Chamberlain herself. She was thought too “sexy” and “cold”; she walked into court with a face set like concrete under large black sunglasses and severely cut black hair. Much was made of her bare, tanned shoulders, her expansive wardrobe and her stoicism. When she did not weep on cue, no one suggested she might have been suffering from shock or trauma. Even worse, she was accused of playing to the cameras that were constantly thrust in her face. She was, we were told, more interested in looking pretty than in the death of her child.
This was a woman, as the prosecution put it, who could murder a baby with nail scissors in the front seat of her car before stuffing the body into a camera case. When a forensic expert claimed there were bloodstains in the front of the Chamberlain’s car, those harboring suspicions were triumphant. Guilty! People spat on her as she walked into the courtroom. It took years before it emerged that the marks were from a chemical spray and old milk.
When “A Cry in the Dark” was released in 1988, it presented a significant challenge to public opinion, coming as it did on the heels of a commission that established serious bungling of evidence by the police and judiciary and overturned the conviction for which Lindy Chamberlain served three years. The movie offered a sympathetic portrayal of a woman struck by an inexplicable tragedy and then accused of an inexplicable crime. By then, she had already given birth in prison to her fourth child, who lived with foster parents until her mother was released. Many people wrote her apologetic letters after seeing the film.
When the coroner tearfully declared the Chamberlains innocent this week and gave them Azaria’s correct death certificate, there was a surprising display of grief and shame in Australia. Comedians issued public apologies for using Lindy Chamberlain as a punch line; TV hosts were grave and emotional. Azaria would have turned 32 on June 11; her parents’ faces crumpled when reminded of it.
The Australian historian Michelle Arrow, who has co-edited a book about the case, believes it was such an engrossing spectacle that we still bear a “psychic scar” from it. Part of the witch hunt, certainly, was about the way white Europeans viewed aboriginal land; as a remote place where sinister things would happen, a place of dark magic where a young mother would slit her baby’s throat as a sacrifice to God.
We see now that our willingness to believe that was a collective failure of empathy. We assumed an innocent woman was guilty. We threw rocks at a grieving mother. And a nation founded by convicts somehow forgot the presumption of innocence.
Lindy Chamberlain is writing a book on forgiveness now. She has learned how to absolve those who mocked, vilified and condemned her. We should take longer to forgive ourselves.
Julia Baird, a journalist, is the author of “Media Tarts: How the Australian Press Frames Female Politicians.”
Sydney, Australia
ULURU, the large red rock in the Australian outback, is a sacred site for aboriginal people. Photographs do not convey how dramatically it looms: an enormous crimson heart in the middle of thousands of miles of flat, muted desert.
It was here, on Aug. 17, 1980, that a dingo — an Australian wild dog — dragged a baby called Azaria Chamberlain from a tent as her parents sat by the campfire. Her body was never found.
Azaria’s desperate mother, Lindy, was accused of lying, convicted of murder and sent to prison. The film about her, “A Cry in the Dark,” starring Meryl Streep, spawned a thousand jokes: “A dingo’s got my baby!” It was not until this week that Lindy and her ex-husband, Michael, were finally given the vindication they longed for: a death certificate that stated that the cause of Azaria’s death was a dingo attack.
Why did it take three decades, tens of millions of dollars, a criminal case appealed in Australia’s highest court, a royal commission and four inquests to establish Lindy Chamberlain’s innocence? In that time, Australia’s population grew from 14.5 million to almost 23 million. The case has been a spectacular example of poor forensic science, anxiety about “evil mothers” and suspicion of religiosity — the Chamberlains are members of the Seventh-day Adventist Church, which was wrongly portrayed as an infant-slaying cult. Rumors circulated that Azaria meant “sacrifice in the wilderness” in Hebrew, not “blessed of God.”
Most Australians thought the dingo was a flimsy excuse. Few people, except park rangers, believed a dingo would attack a baby, and the evidence indigenous trackers gave about drag marks near the tent was brushed aside. In a 1984 poll, 76.8 percent of Australians said Lindy Chamberlain was guilty, and the investigation did little to change their minds.
Then there was Lindy Chamberlain herself. She was thought too “sexy” and “cold”; she walked into court with a face set like concrete under large black sunglasses and severely cut black hair. Much was made of her bare, tanned shoulders, her expansive wardrobe and her stoicism. When she did not weep on cue, no one suggested she might have been suffering from shock or trauma. Even worse, she was accused of playing to the cameras that were constantly thrust in her face. She was, we were told, more interested in looking pretty than in the death of her child.
This was a woman, as the prosecution put it, who could murder a baby with nail scissors in the front seat of her car before stuffing the body into a camera case. When a forensic expert claimed there were bloodstains in the front of the Chamberlain’s car, those harboring suspicions were triumphant. Guilty! People spat on her as she walked into the courtroom. It took years before it emerged that the marks were from a chemical spray and old milk.
When “A Cry in the Dark” was released in 1988, it presented a significant challenge to public opinion, coming as it did on the heels of a commission that established serious bungling of evidence by the police and judiciary and overturned the conviction for which Lindy Chamberlain served three years. The movie offered a sympathetic portrayal of a woman struck by an inexplicable tragedy and then accused of an inexplicable crime. By then, she had already given birth in prison to her fourth child, who lived with foster parents until her mother was released. Many people wrote her apologetic letters after seeing the film.
When the coroner tearfully declared the Chamberlains innocent this week and gave them Azaria’s correct death certificate, there was a surprising display of grief and shame in Australia. Comedians issued public apologies for using Lindy Chamberlain as a punch line; TV hosts were grave and emotional. Azaria would have turned 32 on June 11; her parents’ faces crumpled when reminded of it.
The Australian historian Michelle Arrow, who has co-edited a book about the case, believes it was such an engrossing spectacle that we still bear a “psychic scar” from it. Part of the witch hunt, certainly, was about the way white Europeans viewed aboriginal land; as a remote place where sinister things would happen, a place of dark magic where a young mother would slit her baby’s throat as a sacrifice to God.
We see now that our willingness to believe that was a collective failure of empathy. We assumed an innocent woman was guilty. We threw rocks at a grieving mother. And a nation founded by convicts somehow forgot the presumption of innocence.
Lindy Chamberlain is writing a book on forgiveness now. She has learned how to absolve those who mocked, vilified and condemned her. We should take longer to forgive ourselves.
Julia Baird, a journalist, is the author of “Media Tarts: How the Australian Press Frames Female Politicians.”
Thursday, June 07, 2012
DA's defeat may offer a good lesson
The following opinion by Bob Ray Sanders was published by Arlington (Texas) Star-Telegram on June 6, 2012.
Although justice can move very slowly, it eventually tends to discover the truth and mete out the appropriate punishment or reward.
Sometimes, it even catches up with those charged with administering it, like the haughty district attorney of Williamson County near Austin.
John Bradley, first appointed Williamson County DA by Gov. Rick Perry in 2001 and subsequently elected to the position, was soundly defeated in his bid for re-election in the May 29 Republican primary. The victor in that race was County Attorney Jana Duty, who used the wrongful conviction of an innocent man to persuade voters that Bradley was unworthy of the office.
Bradley was not district attorney when Michael Morton was convicted in the 1986 murder of his wife and sentenced to life in prison without parole. But Bradley was there when Morton and his attorneys began asking for DNA testing that could prove his innocence. For six years, those requests were denied, with Bradley saying that evidence was irrelevant.
Last December, Morton was officially exonerated after a judge ordered the testing that linked the murder to another man, Mark Norwood, who was charged with the crime in February.
Morton was freed after serving 25 years in prison.
But his case isn't completely over. Morton's lawyers have alleged that the prosecutor in the case, Ken Anderson -- now a state district judge -- had failed to turn over several pieces of evidence that would have been beneficial to Morton's defense.
Earlier this year, a Bexar County judge recommended a court of inquiry after finding probable cause that Anderson had broken the law. Texas Supreme Court Chief Justice Wallace Jefferson selected state District Judge Louis Sturns of Tarrant County to lead the court of inquiry investigation into whether prosecutorial misconduct occurred.
Bradley isn't the target of the misconduct allegation, but his role in resisting Morton's pleas for testing worked against him, just as his hard-line stance in a separate murder case may have.
When the Texas Forensic Science Commission was investigating the case of Cameron Todd Willingham, who was convicted of setting a fire that killed his three young daughters, some arson investigation specialists said bad science had been used to conclude that the blaze was deliberately set. If it was not arson, then it was not murder. Willingham's advocates argue that he was wrongly convicted, but he was executed in 2004.
Shortly before a key commission hearing on the case, the governor replaced four members; their terms had expired, but the timing looked suspicious. Perry appointed Bradley commission chairman, and the new head quickly became an obstructionist to the Willingham investigation.
Bradley called Willingham a "guilty monster," backing up Perry's assertion that he was guilty because a jury had said so. And it appeared that Bradley did not want the investigation to proceed on any level that might show Texas had executed an innocent man.
He favored adoption of a report that said fire investigators in the case had done no wrong. But other commission members resisted that conclusion. The panel's work on the Willingham case was limited by a convoluted 2011 ruling from Texas Attorney General Greg Abbott, who said the commission could not investigate cases that occurred before the Legislature established it in 2005. Abbott said the members could consider whether there was professional misconduct in the investigation, but they could not examine specific evidence used to prosecute Willingham.
Not long before that, the Republican-controlled state Senate had refused to vote on Bradley's reappointment as chairman. He was replaced by Tarrant County Medical Examiner Nizam Peerwani.
The Innocence Project was the major advocate in both the Morton and Willingham cases.
With the organization's help, more than 40 convicted individuals in Texas have been exonerated through DNA testing in the past few years, which makes Bradley's obstinate behavior even more reprehensible.
Perhaps now he's learned a valuable lesson, one I hope is taught to a few more district attorneys around the state.
Although justice can move very slowly, it eventually tends to discover the truth and mete out the appropriate punishment or reward.
Sometimes, it even catches up with those charged with administering it, like the haughty district attorney of Williamson County near Austin.
John Bradley, first appointed Williamson County DA by Gov. Rick Perry in 2001 and subsequently elected to the position, was soundly defeated in his bid for re-election in the May 29 Republican primary. The victor in that race was County Attorney Jana Duty, who used the wrongful conviction of an innocent man to persuade voters that Bradley was unworthy of the office.
Bradley was not district attorney when Michael Morton was convicted in the 1986 murder of his wife and sentenced to life in prison without parole. But Bradley was there when Morton and his attorneys began asking for DNA testing that could prove his innocence. For six years, those requests were denied, with Bradley saying that evidence was irrelevant.
Last December, Morton was officially exonerated after a judge ordered the testing that linked the murder to another man, Mark Norwood, who was charged with the crime in February.
Morton was freed after serving 25 years in prison.
But his case isn't completely over. Morton's lawyers have alleged that the prosecutor in the case, Ken Anderson -- now a state district judge -- had failed to turn over several pieces of evidence that would have been beneficial to Morton's defense.
Earlier this year, a Bexar County judge recommended a court of inquiry after finding probable cause that Anderson had broken the law. Texas Supreme Court Chief Justice Wallace Jefferson selected state District Judge Louis Sturns of Tarrant County to lead the court of inquiry investigation into whether prosecutorial misconduct occurred.
Bradley isn't the target of the misconduct allegation, but his role in resisting Morton's pleas for testing worked against him, just as his hard-line stance in a separate murder case may have.
When the Texas Forensic Science Commission was investigating the case of Cameron Todd Willingham, who was convicted of setting a fire that killed his three young daughters, some arson investigation specialists said bad science had been used to conclude that the blaze was deliberately set. If it was not arson, then it was not murder. Willingham's advocates argue that he was wrongly convicted, but he was executed in 2004.
Shortly before a key commission hearing on the case, the governor replaced four members; their terms had expired, but the timing looked suspicious. Perry appointed Bradley commission chairman, and the new head quickly became an obstructionist to the Willingham investigation.
Bradley called Willingham a "guilty monster," backing up Perry's assertion that he was guilty because a jury had said so. And it appeared that Bradley did not want the investigation to proceed on any level that might show Texas had executed an innocent man.
He favored adoption of a report that said fire investigators in the case had done no wrong. But other commission members resisted that conclusion. The panel's work on the Willingham case was limited by a convoluted 2011 ruling from Texas Attorney General Greg Abbott, who said the commission could not investigate cases that occurred before the Legislature established it in 2005. Abbott said the members could consider whether there was professional misconduct in the investigation, but they could not examine specific evidence used to prosecute Willingham.
Not long before that, the Republican-controlled state Senate had refused to vote on Bradley's reappointment as chairman. He was replaced by Tarrant County Medical Examiner Nizam Peerwani.
The Innocence Project was the major advocate in both the Morton and Willingham cases.
With the organization's help, more than 40 convicted individuals in Texas have been exonerated through DNA testing in the past few years, which makes Bradley's obstinate behavior even more reprehensible.
Perhaps now he's learned a valuable lesson, one I hope is taught to a few more district attorneys around the state.
Tuesday, June 05, 2012
More on the implications of the national registry of wrongful convictions
The following editorial was published by the Virginian-Pilot on June 4, 2012.
Past time for justice reform
It is no secret that flaws exist in this nation's criminal justice system. As in all human endeavors, there is a margin of error.
The margin, however, may be greater than most Americans are willing to accept when it comes to meting out punishment in the name of justice. New research suggests that lawmakers, who last year cast aside a proposal to reform the nation's criminal justice system, ought to reconsider.
The reforms, proposed by outgoing Virginia Sen. Jim Webb, would have established a blue-ribbon commission to identify ways to make the system more efficient, effective and just.
As Webb repeatedly noted, the United States accounts for 5 percent of the world's people but 25 percent of the world's reported prison population. Programs aimed at rehabilitation - and reducing recidivism - aren't adequately developed or supported.
The nation's endless war on drugs has led to a 1,200 percent increase in inmates convicted of drug offenses in the past 30 years. And even with more people locked up, a majority of Americans report feeling less safe.
The proposed commission would have offered recommendations, which states and localities could have considered for adoption. It was roundly supported by law enforcement and civil rights groups before it was demagogued in the Senate and defeated.
A recent study by two universities underscores yet another reason for reform: The prevalence of mistakes in investigations and trials.
The University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law have compiled a first-of-its-kind national database of people wrongfully convicted of serious crimes since 1989. The researchers contend they've found more than 2,000 people wrongfully convicted, and they've listed details for about 873. Nearly half were imprisoned on murder charges.
Twenty-five are from Virginia.
Some were convicted of lesser charges:
Christopher Prince of Culpeper, convicted of burglary, was exonerated after victims admitted lying to investigators. Some were freed by happenstance: Arthur Lee Whitfield and Julius Ruffin, both of Norfolk, were both cleared of sexual assault convictions after DNA testing of evidence preserved by a state forensic scientist who broke protocol.
Because they were publicized, those cases were relatively easy to compile for the database. Scores of others likely exist.
"We know that there are many more that we haven't found," said Samuel Gross, a Michigan professor and editor of the National Registry of Exonerations.
From a purely financial perspective, the database - and the findings cited by Webb - suggest taxpayers aren't getting nearly the return they deserve on the billions spent to fight crime every year. From a civic perspective, they demonstrate a failure of policies to adhere to justice rather than identifying criminals and racking up convictions.
And until Americans demand change, nothing will.
Past time for justice reform
It is no secret that flaws exist in this nation's criminal justice system. As in all human endeavors, there is a margin of error.
The margin, however, may be greater than most Americans are willing to accept when it comes to meting out punishment in the name of justice. New research suggests that lawmakers, who last year cast aside a proposal to reform the nation's criminal justice system, ought to reconsider.
The reforms, proposed by outgoing Virginia Sen. Jim Webb, would have established a blue-ribbon commission to identify ways to make the system more efficient, effective and just.
As Webb repeatedly noted, the United States accounts for 5 percent of the world's people but 25 percent of the world's reported prison population. Programs aimed at rehabilitation - and reducing recidivism - aren't adequately developed or supported.
The nation's endless war on drugs has led to a 1,200 percent increase in inmates convicted of drug offenses in the past 30 years. And even with more people locked up, a majority of Americans report feeling less safe.
The proposed commission would have offered recommendations, which states and localities could have considered for adoption. It was roundly supported by law enforcement and civil rights groups before it was demagogued in the Senate and defeated.
A recent study by two universities underscores yet another reason for reform: The prevalence of mistakes in investigations and trials.
The University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law have compiled a first-of-its-kind national database of people wrongfully convicted of serious crimes since 1989. The researchers contend they've found more than 2,000 people wrongfully convicted, and they've listed details for about 873. Nearly half were imprisoned on murder charges.
Twenty-five are from Virginia.
Some were convicted of lesser charges:
Christopher Prince of Culpeper, convicted of burglary, was exonerated after victims admitted lying to investigators. Some were freed by happenstance: Arthur Lee Whitfield and Julius Ruffin, both of Norfolk, were both cleared of sexual assault convictions after DNA testing of evidence preserved by a state forensic scientist who broke protocol.
Because they were publicized, those cases were relatively easy to compile for the database. Scores of others likely exist.
"We know that there are many more that we haven't found," said Samuel Gross, a Michigan professor and editor of the National Registry of Exonerations.
From a purely financial perspective, the database - and the findings cited by Webb - suggest taxpayers aren't getting nearly the return they deserve on the billions spent to fight crime every year. From a civic perspective, they demonstrate a failure of policies to adhere to justice rather than identifying criminals and racking up convictions.
And until Americans demand change, nothing will.
Wednesday, May 23, 2012
A new National Registry on Exonerations casts doubt on the accuracy of our criminal justice system
The following editorial was published in the Birgmingham (Alabama) News on May 23, 2012, by the Birmingham News editorial board.
How many is too many?
One?
Five?
Ten?
One hundred?
Eight hundred and seventy-three?
How many people wrongfully convicted of a crime are we
willing to accept? Especially those who are sentenced to Death Row?
A report released Monday by the National Registry on
Exonerations raises those questions and more. The registry, a joint project of
the University of Michigan Law School and the Center on Wrongful Convictions at
Northwestern University School of Law, profiles 873 exonerations from January
1989 through February 2012. The report discusses including at least 1,170 other
defendants whose convictions were dismissed after more than a dozen major
police scandals. Most of those scandals involved the massive planting of drugs
and guns on innocent defendants, which led to "group exonerations."
Most of the 873 exonerations profiled in the database are
for homicides (416 cases, including 101 resulting in death sentences) and
sexual assaults (305). The most common reasons for wrongful convictions are
perjury or false accusations (in 51 percent of cases) mistaken eyewitness
identification (43 percent) and official misconduct (42 percent), according to
the report. False or misleading forensic evidence and false confession are
other major causes for false convictions.
"The National Registry of Exonerations gives an
unprecedented view of the scope of the problem of wrongful convictions in the
United States," said Rob Warden, executive director of the Center on
Wrongful Convictions. "It's a widespread problem."
Including, as you might imagine, in Alabama.
Among the 873 exonerations included in the registry are 17
convictions in Alabama -- including five in Jefferson County -- later cleared
in Alabama courts. One of those cases was a federal exoneration; the other 16
were state cases. Alabama ranks 14th nationally for total false convictions and
10th per resident, according to the report.
State Attorney General Luther Strange said the numbers
actually make the case that Alabama's criminal proceedings result in very few
errors.
"Sixteen errors out of tens of thousands of convictions
does not indicate a systemic problem but rather supports the high degree of
accuracy in our proceedings," he said in a statement.
But the study's authors say the number of exonerations is
much higher than they have been able to document. The ones they found are
"the tip of the iceberg," according to Michigan Law professor Samuel
Gross, editor of the registry and an author of the report.
"Most people who are falsely convicted are not
exonerated; they serve their time or die in prison," he said in a
statement. "And when they are exonerated, a lot of times it happens
quietly, out of public view."
Of the 16 state exonerations in Alabama, six were men
sentenced to death. It does not require a vivid imagination to wonder whether a
wrongly convicted person awaits execution on Alabama's Death Row or, worse,
whether the state has killed an innocent person in our names.
If someone goes to prison for a crime he or she did not
commit, it is an injustice. That is especially true in capital murder cases,
where a life is at stake. We would like to have as much confidence in Alabama's
criminal justice system as Strange professes, but the report on the national
registry casts enough doubt to cause grave concern.
The National Registry of
Exonerations, which will be updated on an ongoing basis, can be viewed online HERE.
Saturday, May 05, 2012
Colorado's wrongful conviction of Robert Dewey holds lessons
The following opinion by Jason Kreag was published by the Denver Post on May 4, 2012
Lawyer: Colorado should compensate the innocent
NEW YORK — During the nearly 18 years he was incarcerated for a rape and murder that DNA evidence finally proved he didn't commit, Robert Dewey coped by imagining that he was riding a motorcycle. In his own words, "I'd hop on and ride in my mind."
Eighteen years is a long time to fantasize about being on a bike, but it would have likely been an even longer ride had the Colorado state attorney general's office and the Mesa County district attorney's office not been willing to work with the Innocence Project and Dewey's long-time counsel, Danyel Joffe, to reopen its investigation of the crime.
Dewey became a suspect in the 1994 rape and murder largely because the police found his actions suspicious. Although DNA testing done at the time excluded Dewey as the source of semen at the crime scene, pretrial DNA testing of his shirt seemed to indicate the presence of the victim's blood on it. Even this evidence was not particularly strong; the analyst testified at trial that the blood on Dewey's shirt was consistent with approximately 45 percent of the population. That was good enough for the jurors, who convicted Dewey despite any other substantial evidence of guilt.
We now know the system got it wrong. Robert Dewey is innocent. Unlike many of our clients, he was fortunate to have been assigned counsel to help with his post-conviction appeals. In 2007, the Innocence Project teamed up with Joffe and retested the trial scene evidence. Advances in DNA technology made it possible to definitively exclude the victim as the source of the blood on Dewey's shirt. The new testing also confirmed that Dewey wasn't the source of the semen recovered from the blanket.
We took this information to the state attorney general's office, which had recently received a federal grant to fund a Justice Review Project. After securing the cooperation of the Mesa County District Attorney's office, the attorney general's office conducted additional testing confirming that it was Dewey's blood, not the victim's, on the shirt.
This testing also yielded DNA results from the semen stain on the blanket which matched profiles of the DNA from the fingernail scrapings and other evidence from the victim's body. The profile of the semen was put in the CODIS databank and matched to Douglas Thames, who is serving a life sentence for a similar crime. The DNA results and some traditional investigative work confirmed Dewey's innocence.
Now that Dewey's innocence has been established, four aspects of the case deserve attention. First, although prosecutors elected not to pursue the death penalty in his case, the crime certainly could have been prosecuted as a capital murder. It's sobering to think what might have happened had he been sentenced to death.
Second, all too often we are forced to close cases because crime scene evidence is no longer available. Fortunately, that is not a problem in Colorado because the state legislature passed a law in 2008 requiring law enforcement to preserve evidence. Colorado lawmakers should pat themselves on the back because these laws not only help to free the innocent but, as we saw in this case, can also help identify the real perpetrator.
Third, Dewey's case is a compelling example of the usefulness of having the prosecution and defense cooperate in post-conviction cases involving innocence claims. DNA evidence has helped to show many in law enforcement that the system doesn't always get it right. In response, prosecutors around the country have started conviction integrity units like Colorado Attorney General John Suthers' project to investigate cases where someone may have been wrongfully convicted.
Dewey's case is the first exoneration to have stemmed from the Colorado project.
The Innocence Project has worked with many of these projects, and we've found that the most successful projects welcome cooperation from defense attorneys. Involving defense attorneys provides an alternative perspective and therefore a more objective examination of the evidence.
After this successful experience, we're hopeful that Attorney General Suthers has seen the value of always including defense lawyers in these investigations. From our experience, those projects that encourage defense cooperation are likely to find cases where the wrong person has been convicted, whereas those that work in a vacuum rarely do.
Finally, while Colorado has done many things right with regard to uncovering wrongful convictions, it is lagging behind in one very important regard: compensation. While he was wrongly incarcerated for the past 18 years, Dewey lost out on some of the best years of his life. He missed out on opportunities to get an education and build a career.
When he was released last week, he walked out of prison with literally nothing but the clothes on his back. While nothing could compensate Dewey for the years he's lost, the state owes it to him to see that he doesn't spend the remainder of his years penniless.
My hope for him is that the state will agree and quickly pass a compensation statute to bring Colorado in line with the majority of the states that have compensation statutes for wrongfully convicted individuals.
I also hope that Dewey has a chance to hop on a real bike soon. I have no doubt that when he does, he'll quickly remember the feeling he had on his last ride nearly 18 years ago, before his odyssey through the criminal justice system began.
Jason Kreag is a staff attorney at the Innocence Project.
NEW YORK — During the nearly 18 years he was incarcerated for a rape and murder that DNA evidence finally proved he didn't commit, Robert Dewey coped by imagining that he was riding a motorcycle. In his own words, "I'd hop on and ride in my mind."
Eighteen years is a long time to fantasize about being on a bike, but it would have likely been an even longer ride had the Colorado state attorney general's office and the Mesa County district attorney's office not been willing to work with the Innocence Project and Dewey's long-time counsel, Danyel Joffe, to reopen its investigation of the crime.
Dewey became a suspect in the 1994 rape and murder largely because the police found his actions suspicious. Although DNA testing done at the time excluded Dewey as the source of semen at the crime scene, pretrial DNA testing of his shirt seemed to indicate the presence of the victim's blood on it. Even this evidence was not particularly strong; the analyst testified at trial that the blood on Dewey's shirt was consistent with approximately 45 percent of the population. That was good enough for the jurors, who convicted Dewey despite any other substantial evidence of guilt.
We now know the system got it wrong. Robert Dewey is innocent. Unlike many of our clients, he was fortunate to have been assigned counsel to help with his post-conviction appeals. In 2007, the Innocence Project teamed up with Joffe and retested the trial scene evidence. Advances in DNA technology made it possible to definitively exclude the victim as the source of the blood on Dewey's shirt. The new testing also confirmed that Dewey wasn't the source of the semen recovered from the blanket.
We took this information to the state attorney general's office, which had recently received a federal grant to fund a Justice Review Project. After securing the cooperation of the Mesa County District Attorney's office, the attorney general's office conducted additional testing confirming that it was Dewey's blood, not the victim's, on the shirt.
This testing also yielded DNA results from the semen stain on the blanket which matched profiles of the DNA from the fingernail scrapings and other evidence from the victim's body. The profile of the semen was put in the CODIS databank and matched to Douglas Thames, who is serving a life sentence for a similar crime. The DNA results and some traditional investigative work confirmed Dewey's innocence.
Now that Dewey's innocence has been established, four aspects of the case deserve attention. First, although prosecutors elected not to pursue the death penalty in his case, the crime certainly could have been prosecuted as a capital murder. It's sobering to think what might have happened had he been sentenced to death.
Second, all too often we are forced to close cases because crime scene evidence is no longer available. Fortunately, that is not a problem in Colorado because the state legislature passed a law in 2008 requiring law enforcement to preserve evidence. Colorado lawmakers should pat themselves on the back because these laws not only help to free the innocent but, as we saw in this case, can also help identify the real perpetrator.
Third, Dewey's case is a compelling example of the usefulness of having the prosecution and defense cooperate in post-conviction cases involving innocence claims. DNA evidence has helped to show many in law enforcement that the system doesn't always get it right. In response, prosecutors around the country have started conviction integrity units like Colorado Attorney General John Suthers' project to investigate cases where someone may have been wrongfully convicted.
Dewey's case is the first exoneration to have stemmed from the Colorado project.
The Innocence Project has worked with many of these projects, and we've found that the most successful projects welcome cooperation from defense attorneys. Involving defense attorneys provides an alternative perspective and therefore a more objective examination of the evidence.
After this successful experience, we're hopeful that Attorney General Suthers has seen the value of always including defense lawyers in these investigations. From our experience, those projects that encourage defense cooperation are likely to find cases where the wrong person has been convicted, whereas those that work in a vacuum rarely do.
Finally, while Colorado has done many things right with regard to uncovering wrongful convictions, it is lagging behind in one very important regard: compensation. While he was wrongly incarcerated for the past 18 years, Dewey lost out on some of the best years of his life. He missed out on opportunities to get an education and build a career.
When he was released last week, he walked out of prison with literally nothing but the clothes on his back. While nothing could compensate Dewey for the years he's lost, the state owes it to him to see that he doesn't spend the remainder of his years penniless.
My hope for him is that the state will agree and quickly pass a compensation statute to bring Colorado in line with the majority of the states that have compensation statutes for wrongfully convicted individuals.
I also hope that Dewey has a chance to hop on a real bike soon. I have no doubt that when he does, he'll quickly remember the feeling he had on his last ride nearly 18 years ago, before his odyssey through the criminal justice system began.
Jason Kreag is a staff attorney at the Innocence Project.
Monday, April 30, 2012
Crime on Campus
We're pleased to share this infographic from onlinecolleges.net, originally published on their blog on April 26, 2012. The full graphic can be seen at http://www.onlinecolleges.net/2012/04/25/crime-on-campus/
Presented By: Online Colleges Blog
Presented By: Online Colleges Blog
Monday, April 02, 2012
Morton case calls for system reforms
The following editorial was published by the (Austin, TX) Statesman on March 30, 2012.
‘My life is great," Michael Morton told the American-Statesman's Chuck Lindell this week. "I have been blessed in a million ways, more than I can count."
It's hard to imagine how someone who spent almost 25 years wrongfully imprisoned can call life great and consider himself blessed, but in a two-part interview published Thursday and Friday by the Statesman, Morton consistently expresses an admirably wise perspective on life.
And it's clear reading Morton's story that his experience must lead to changes that hold prosecutors accountable for wrongful convictions.
Morton believes that prosecutorial misconduct by former Williamson County District Attorney Ken Anderson, who's now a district judge, led to his being convicted of killing his wife, Christine. This summer, a special court will explore whether Anderson hid evidence that could have prevented Morton's conviction. Anderson maintains he did nothing wrong.
No longer seen as "a murderous perv," as he phrased it, Morton is now a man praised for his perseverance through a nightmarish ordeal. From his interview with Lindell, and from video taken by the Statesman's Kelly West, it appears that Morton, 57, is coping very well with life outside prison. He is slowly rebuilding his relationship with his son, Eric, who was only 3 when his mother was murdered and who, until five months ago, thought of his father as his mom's killer.
In his interview with Lindell, Morton talks about the horror of the murder of his wife in August 1986 and the shock of being accused and, in February 1987, convicted of killing her. He discusses the years he spent in prison and how he maintained his innocence while trying to hold on to something positive to get him through the terrible days. He talks about the gradual loss of contact with his son, a religious moment that brought him strength during one of his darkest hours, and the long journey toward freedom and exoneration last fall.
Morton's journey toward freedom began in 2004 when the Innocence Project — a nonprofit group dedicated to using DNA technology to free wrongly convicted inmates — took on his case. John Raley ("Very few people can look to somebody and say that you owe your life to him," Morton says of the tireless Houston attorney) and the Innocence Project's Nina Morrison are the story's legal heroes.
Morton still would be in prison if Raley and the Innocence Project had not finally won, after six years of litigation, DNA testing on a blood-stained bandanna found near Morton's house. It remains incomprehensible that Williamson County District Attorney John Bradley fought DNA testing on the bandanna until ordered to so by an appeals court.
Once tested, Morton's innocence became clear. Christine Morton's DNA was on the bandanna; so, too, police say, was the DNA of Mark Alan Norwood, a man with a criminal history, including a charge of aggravated assault.
Norwood has since been charged with capital murder in Christine Morton's death. He also is a suspect in the 1988 killing of Debra Masters Baker, who, like Morton, was bludgeoned to death while she lay in bed.
Michael Morton's case must motivate the Legislature and State Bar to adopt prosecutorial reforms. One change Morton hopes will occur is simple and should be free of any controversy: Require prosecutors to sign an affidavit saying they've given defense attorneys all possibly exculpatory evidence. Failure to turn over evidence that might benefit a defendant should lead to a fine or, better yet, the loss of a prosecutor's law license.
Rules governing prosecutorial behavior should be expanded and strengthened. Procedures leading to the possible punishment of prosecutors in wrongful conviction cases can be clearly outlined and simplified. Perhaps even citizens outside the closed culture of a courthouse can be given a role in determining misconduct and punishment.
Morton's must be more than a story of justice delayed or derailed, of exoneration, reunion and redemption. It must also be a story of justice reformed.
‘My life is great," Michael Morton told the American-Statesman's Chuck Lindell this week. "I have been blessed in a million ways, more than I can count."
It's hard to imagine how someone who spent almost 25 years wrongfully imprisoned can call life great and consider himself blessed, but in a two-part interview published Thursday and Friday by the Statesman, Morton consistently expresses an admirably wise perspective on life.
And it's clear reading Morton's story that his experience must lead to changes that hold prosecutors accountable for wrongful convictions.
Morton believes that prosecutorial misconduct by former Williamson County District Attorney Ken Anderson, who's now a district judge, led to his being convicted of killing his wife, Christine. This summer, a special court will explore whether Anderson hid evidence that could have prevented Morton's conviction. Anderson maintains he did nothing wrong.
No longer seen as "a murderous perv," as he phrased it, Morton is now a man praised for his perseverance through a nightmarish ordeal. From his interview with Lindell, and from video taken by the Statesman's Kelly West, it appears that Morton, 57, is coping very well with life outside prison. He is slowly rebuilding his relationship with his son, Eric, who was only 3 when his mother was murdered and who, until five months ago, thought of his father as his mom's killer.
In his interview with Lindell, Morton talks about the horror of the murder of his wife in August 1986 and the shock of being accused and, in February 1987, convicted of killing her. He discusses the years he spent in prison and how he maintained his innocence while trying to hold on to something positive to get him through the terrible days. He talks about the gradual loss of contact with his son, a religious moment that brought him strength during one of his darkest hours, and the long journey toward freedom and exoneration last fall.
Morton's journey toward freedom began in 2004 when the Innocence Project — a nonprofit group dedicated to using DNA technology to free wrongly convicted inmates — took on his case. John Raley ("Very few people can look to somebody and say that you owe your life to him," Morton says of the tireless Houston attorney) and the Innocence Project's Nina Morrison are the story's legal heroes.
Morton still would be in prison if Raley and the Innocence Project had not finally won, after six years of litigation, DNA testing on a blood-stained bandanna found near Morton's house. It remains incomprehensible that Williamson County District Attorney John Bradley fought DNA testing on the bandanna until ordered to so by an appeals court.
Once tested, Morton's innocence became clear. Christine Morton's DNA was on the bandanna; so, too, police say, was the DNA of Mark Alan Norwood, a man with a criminal history, including a charge of aggravated assault.
Norwood has since been charged with capital murder in Christine Morton's death. He also is a suspect in the 1988 killing of Debra Masters Baker, who, like Morton, was bludgeoned to death while she lay in bed.
Michael Morton's case must motivate the Legislature and State Bar to adopt prosecutorial reforms. One change Morton hopes will occur is simple and should be free of any controversy: Require prosecutors to sign an affidavit saying they've given defense attorneys all possibly exculpatory evidence. Failure to turn over evidence that might benefit a defendant should lead to a fine or, better yet, the loss of a prosecutor's law license.
Rules governing prosecutorial behavior should be expanded and strengthened. Procedures leading to the possible punishment of prosecutors in wrongful conviction cases can be clearly outlined and simplified. Perhaps even citizens outside the closed culture of a courthouse can be given a role in determining misconduct and punishment.
Morton's must be more than a story of justice delayed or derailed, of exoneration, reunion and redemption. It must also be a story of justice reformed.
Thursday, March 29, 2012
Thomas Arthur Almost Executed Thursday Despite Proof of Innocence
Thomas Arthur Almost Executed Thursday Despite Proof of Innocence
By Michelle Brunet
http://www.criminaljusticeschoolinfo.com/
Thomas Arthur was scheduled to be executed Thursday at 6pm. On Wednesday, luckily, the 11th U.S. Circuit Court of Appeals upheld the stay granted to him by a federal appeals court last week. I say luckily because, not only has Arthur always claimed his innocence (which, lets face it, might be said by those who are guilty as well), but key factors have come to light since his original conviction that suggest he did not commit the crime. His defense team wants to foot the bill for a crucial DNA test that could affirm his innocence, but have so far been denied. It makes me question whether Arthur’s criminal past has been held against him causing a miscarriage of justice throughout all his legal and court system proceedings for nearly 30 years.
It may surprise you that the temporary suspension of Arthur’s execution has nothing to do with his possible innocence, but for the manner he was to be put to death. His defence attorneys requested a stay because of the cruel nature of the three-drug lethal injection process that was planned. Specifically, opponents to the controversial mode of lethal injection argue that when pentobarbital is injected first it does not effectively render the body unconscious thus leading to potentially high levels of torture and pain.
Arthur has avoided this fatal fate - a punishment sentenced to him when he was convicted for the murder of Troy Wicker - for at least the immediate future. In 1982, Wicker was found dead in his Muscle Shoals, Alabama home, with a gunshot wound to his right eye. Those who believe Arthur is guilty tell that he was hired by the victim’s wife, Judy Wicker, to carry out the murder. Judy had been convicted for her part in the murder which resulted in her collecting $90,000 in life insurance.
According to Thomas Arthur Fight For Life, Judy had been sentenced to life in prison, but was released after serving ten years for issuing a statement condemning Arthur. The website adds that in seven previous statements, she had not once implicated Arthur.
In 2008, Bobby Ray Gilbert confessed that he, not Arthur, murdered Troy Wicker. Gilbert stated that he had been having an affair with Judy and that she had told him her husband was physically abusive. Gilbert is currently serving life in prison for another murder.
Additionally, no physical or DNA evidence links Arthur to the crime scene where Wicker was found dead. Basic DNA tests were conducted on a wig, asserted to be worn by the killer, but the results were inconclusive and yet did not link Arthur or Gilbert. Arthur’s attorneys have asked to pay for a more specialized DNA test (a mini-STR analysis) on the wig to affirm their client’s innocence, but the State has refused the request.
At the time that Wicker was murdered, Arthur was serving time at the Decatur Work-Release Centre for a second-degree murder conviction. The State claims Arthur left the centre and drove the 45 miles to Muscle Shoals. Is it possible that Arthur’s past murder conviction led the prosecutors and the jury to convict him for a murder he very well may not be responsible for?
Earlier this week, Tom Smith (TimesDaily.com) did a piece describing Sherrie Stone’s fears that her father Arthur would be put to death Thursday. Since his 1983 conviction, he has been granted four stays but she felt that this time he would not be so lucky. “If a confession and DNA testing that doesn’t match him won’t work, I don’t expect it to be stopped this time,” Stone shared.
On Wednesday, Stone’s prayers were answered; but will her hopes, of the courts ruling out every doubt before executing her father, be realized? “If we are to continue executions in this country, laws must be put in place in which DNA testing must be allowed at all stages of the process. There is a chance we are executing innocent people. I know because my father is one of those people,” expressed Stone.
If you believe that the State of Alabama should allow for a more specialized DNA test in the case of Thomas Arthur, you can send a message to Governor Bentley directly from the Innocence Project.
By Michelle Brunet
http://www.criminaljusticeschoolinfo.com/
Thomas Arthur was scheduled to be executed Thursday at 6pm. On Wednesday, luckily, the 11th U.S. Circuit Court of Appeals upheld the stay granted to him by a federal appeals court last week. I say luckily because, not only has Arthur always claimed his innocence (which, lets face it, might be said by those who are guilty as well), but key factors have come to light since his original conviction that suggest he did not commit the crime. His defense team wants to foot the bill for a crucial DNA test that could affirm his innocence, but have so far been denied. It makes me question whether Arthur’s criminal past has been held against him causing a miscarriage of justice throughout all his legal and court system proceedings for nearly 30 years.
It may surprise you that the temporary suspension of Arthur’s execution has nothing to do with his possible innocence, but for the manner he was to be put to death. His defence attorneys requested a stay because of the cruel nature of the three-drug lethal injection process that was planned. Specifically, opponents to the controversial mode of lethal injection argue that when pentobarbital is injected first it does not effectively render the body unconscious thus leading to potentially high levels of torture and pain.
Arthur has avoided this fatal fate - a punishment sentenced to him when he was convicted for the murder of Troy Wicker - for at least the immediate future. In 1982, Wicker was found dead in his Muscle Shoals, Alabama home, with a gunshot wound to his right eye. Those who believe Arthur is guilty tell that he was hired by the victim’s wife, Judy Wicker, to carry out the murder. Judy had been convicted for her part in the murder which resulted in her collecting $90,000 in life insurance.
According to Thomas Arthur Fight For Life, Judy had been sentenced to life in prison, but was released after serving ten years for issuing a statement condemning Arthur. The website adds that in seven previous statements, she had not once implicated Arthur.
In 2008, Bobby Ray Gilbert confessed that he, not Arthur, murdered Troy Wicker. Gilbert stated that he had been having an affair with Judy and that she had told him her husband was physically abusive. Gilbert is currently serving life in prison for another murder.
Additionally, no physical or DNA evidence links Arthur to the crime scene where Wicker was found dead. Basic DNA tests were conducted on a wig, asserted to be worn by the killer, but the results were inconclusive and yet did not link Arthur or Gilbert. Arthur’s attorneys have asked to pay for a more specialized DNA test (a mini-STR analysis) on the wig to affirm their client’s innocence, but the State has refused the request.
At the time that Wicker was murdered, Arthur was serving time at the Decatur Work-Release Centre for a second-degree murder conviction. The State claims Arthur left the centre and drove the 45 miles to Muscle Shoals. Is it possible that Arthur’s past murder conviction led the prosecutors and the jury to convict him for a murder he very well may not be responsible for?
Earlier this week, Tom Smith (TimesDaily.com) did a piece describing Sherrie Stone’s fears that her father Arthur would be put to death Thursday. Since his 1983 conviction, he has been granted four stays but she felt that this time he would not be so lucky. “If a confession and DNA testing that doesn’t match him won’t work, I don’t expect it to be stopped this time,” Stone shared.
On Wednesday, Stone’s prayers were answered; but will her hopes, of the courts ruling out every doubt before executing her father, be realized? “If we are to continue executions in this country, laws must be put in place in which DNA testing must be allowed at all stages of the process. There is a chance we are executing innocent people. I know because my father is one of those people,” expressed Stone.
If you believe that the State of Alabama should allow for a more specialized DNA test in the case of Thomas Arthur, you can send a message to Governor Bentley directly from the Innocence Project.
Friday, March 23, 2012
Closing of Point Park University's Innocence Project should be open to public dispute
The following opinion by Cody McDevitt was published in the Point Park Globe on March 18, 2012.
Since March Madness is upon us, I think it's fitting to recall a moviescene from “Hoosiers.” It's my favorite moment from any sports movie. Coach Norman Dale's job is in jeopardy. The town has called a meeting to vote on whether he should be fired.
Here's how the scene goes, for those who haven't seen it:
"I've made some mistakes, but they're mistakes I take full responsibility for," Coach Dale said. "I was hired to teach the boys the game of basketball, and I did that to the best of my ability. I apologize for nothing. You may not be pleased with the results, but I am. I'm ver yproud of these boys."
Later on in the scene, the basketball star Jimmy Chitwood arrives.
"I don't know if it'll make any change, but I figured it's timefor me to start playing ball," he said.
The crowd erupts into applause.
The foreman of the meeting declares as he points to Coach Dale,"I told you once we got rid of him," Jimmy continues. "One other thing. I play. Coach stays. He goes. I go."
I wish I could say my writing abilities were on the level of Jimmy Chitwood's basketball talents, but that would be delusional and narcissistic. There is someone I know though who is close to Norman Dale.His name is Bill Moushey, and he is my professor in the Innocence Institute graduate level class I take at Point Park University. He teaches the game of journalism.
When I was in high school, I got in a passionate disagreement with Kevin Bastos, my media studies teacher. He said he wouldn't mind if one innocent man were in jail so long as 100 guilty men were there with him. I, as an idealist, took the counterpoint. I would rather have the guilty roam free so long as the innocent weren't punished. We didn't get along very well.
My college journalism teachers were more principled. My favorite teacher, Doug Cosper, taught me to "comfort the afflicted and afflict the comfortable."
He travels the world and teaches journalism abroad and in Colorado. He's someone who taught me a lot.
But the person I've met with the most experience, the most wisdom and the most fascinating stories about journalism is Bill Moushey.Up to this semester, my first in graduate school, I had never met a reporter who was once at the wrong end of a gun because of a story he wrote, nor had I met someone who used so many colorful anecdotes and analogies. He epitomizes what you think when you hear the term hard-nosed journalist. He's Pittsburgh's Pete Hamill.
So it was heart-wrenching to see him well up with tears this week. The organization he champions, the Innocence Institute, will no longer exist after this semester. The reason, as it always is with journalism schools, was financial in nature.
For those who aren't familiar with the Innocence Institute, it is an organization dedicated to freeing wrongfully convicted men and women.Point Park is one of only three schools to be affiliated with the Innocence project. It has reversed 14 convictions.
Moushey is the antithesis of what my high school media studies teacher was.Though he knows firsthand from all the letters he receives from convicted pedophiles, rapists and murderers that you assume convicts are guilty, he also knows that innocent men get railroaded by unreliable eyewitness testimony, prosecutorial misconduct or by the withholding of evidence.Furthermore, he takes it upon himself and his students to correct injustice when it is done and to aggressively pursue the truth, however ugly it maybe.
I know I can't stand in front of the Point Park faculty and threaten to "not play." That would make no difference. But I want to bring this decision to the public so lawyers, journalists and community organizers can think about whether they want to write emails or letters to the School of Communication at Point Park to request that they continue this program.
Ultimately, whether or not an innocent man is in jail probably won't affect you unless you are that innocent man or if he's your brother or father. But I hope there are enough idealists out there to not let the Innocence Institute go so easily.
One of my favorite historical quotes expresses a principle that Bill Moushey embodies. Eugene Debs said it on Sept. 18, 1918. If you don't appreciate it, then you probably won't understand why the Innocence Institute is so noble."Years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then and I say now, that while there is a lower class, I am in it; while there is a criminal element I am of it; while there is a soul in prison, I am not free."
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