Conviction Error Demands Reexamination of Death Penalty

The following opinion piece with the title “Jim Petro: An intolerable rate of wrongful convictions” was published September 11, 2013 in The Akron Beacon Journal.

Would you get on an airplane if there were a 2.3 percent chance it would crash? The equivalent of this “worse case” outcome in criminal justice is convicting an innocent person. There’s a special horror in convicting an innocent person of a death penalty crime. Well-documented research has found that our criminal justice system’s error rate in capital cases is at least 2.3 percent. This troubling record was underscored recently when senior U.S. District Judge Anita Brody overturned the conviction of James Dennis, who spent 21 years on death row. As reported by the Associated Press, the judge called the case “a grave miscarriage of justice” and said Dennis was convicted on “scant evidence at best.”

This language is similar to that of a 2003 commission report, prompting then-Governor George Ryan to place a moratorium on the Illinois death penalty. Since its reinstatement in 1977, twelve inmates had been executed and thirteen condemned to death had been released. The commission noted, “All thirteen cases were characterized by relatively little solid evidence connecting the charged defendants to the crimes.”

The Innocence Project reports that since 1992, DNA has proven 311 persons wrongfully convicted (completely innocent). Of these, 18 had been on death row. Another 16 charged with capital crimes had not been sentenced to death.

The 2.3 percent error rate for capital crimes is from research by Professor Samuel R. Gross at the University of Michigan Law School and Professor Barbara O’Brien at Michigan State University College of Law.  Gross and O’Brien examined actual exonerations among all death sentences in the United States since 1973. Of those who had been sentenced to death at least fifteen years before the end of 2004, professors Gross and O’Brien determined that 2.3 percent had been exonerated. Since there were no doubt other capital defendants in that group who had not been exonerated by the end of 2004, the exoneration rate is a conservative estimate of the rate of wrongful convictions among death sentences.

Professor Gross is editor and co-founder of the National Registry of Exonerations—launched in May 2012—a joint project of University of Michigan and Northwestern Law Schools. This searchable online database of all known exonerations in the U.S. includes wrongful convictions proven by DNA and those cases in which a person was “officially declared innocent or was relieved of all legal consequences of the conviction because evidence of innocence that was not presented at trial required reconsideration of the case.” The database is dynamic; exonerations, current or newly discovered, are added frequently. The recent number of exonerations since 1989 was 1,200 of which 105 or 8.8 percent were cases that resulted in a sentence of death. Due to the exonerations, those executions were not carried out.

When serving as Ohio Attorney General, I became aware of wrongful conviction and the power of compelling, yet unreliable evidence. For example, FBI records in thousands of cases (primarily sexual assaults) in which crime scene DNA was compared with suspect DNA (the suspect usually identified by the victim) revealed a 25-percent error rate! How then can eyewitness testimony alone determine “guilt beyond a reasonable doubt?”

If one piece of unreliable evidence can convict, several—with a dash of circumstantial evidence—make a perfect recipe for wrongful conviction. Juries and judges have been misled by such evidence.

Some believe error may be more frequent in capital cases. Crimes that shock the community put unusual pressure on officials. This may prompt cutting corners or investigative tunnel vision often recognized after wrongful conviction. Obviously, the victim cannot testify. The National Registry of Exonerations data indicates that in these cases, the primary contributor to wrongful conviction is perjury or false accusation, often one suspect’s testimony against another or a prison snitch testifying to get a better deal.

Anti-death penalty groups contend the death penalty is immoral, more expensive than a life sentence, unfairly applied, and not a deterrent. Even death penalty supporters must acknowledge that the frequency of wrongful conviction demands new policies or a moratorium.

One proposal to reduce the risk of wrongful execution is raising the standard of guilt in death-penalty cases from “beyond a reasonable doubt” to “beyond all doubt.” Another is to require more than eyewitness testimony. We must craft policies to reduce use of false confessions (often coerced), misleading forensic testimony (our system “needs overhaul” according to a 2009 National Research Council study), and unreliable snitches and informants.

The United States would not tolerate a 2.3 percent error rate in the airline industry or any other in which the consequence of error is death. DNA-proven wrongful convictions and a growing body of official exonerations have revealed an error rate in criminal justice that makes the death penalty as it now stands unacceptable.

— Jim Petro, former attorney general of Ohio, is co-author with Nancy Petro ofFalse Justice – Eight Myths that Convict the Innocent.

What Kind of 'Justice System' Refuses to Test DNA Evidence? The real scandal in the case of Sharon Snyder, who was fired for helping to exonerate an innocent prisoner

The following opinion by Conor Friedersdorf appeared in the July 30, 2013 edition of The Atlantic Magazine.

Outrage rippled across the web earlier this week as Americans heard the story of Sharon Snyder, "a 70-year-old great-grandmother who was fired nine months before she was scheduled to retire." Her transgression? An employee of Jackson County Circuit Court, she helped a man in prison who sought to have the DNA evidence in his case tested, but had his request rejected twice on technicalities because he hadn't managed to properly fill out the paperwork.

Robert Nelson, 49, sought DNA testing to overturn his rape conviction in 2009 and again in 2011, but Judge David Byrn denied both requests because he hadn't crafted the motion properly. "After the second motion failed in late October 2011, Snyder gave Nelson's sister, Sea Dunnell, a copy of a motion filed in a different case in which the judge sustained a DNA request," AP reports. Using that public document as a guide, Nelson finally won the right to have the DNA evidence tested on February 22, 2012. Last month, that DNA test proved him innocent.

And five days after he was released, Synder was fired for involving herself in a case before the court. "At first I didn't know if my pension was going to be intact, and all I could do was curl up in a fetal position and cry," she told AP. In fact, she will collect her full pension, the news story states.

The outrage generated on Snyder's behalf is understandable. When powerful people break the law in America -- torturing prisoners, say, or illegally spying on Americans without warrants -- they're granted retroactive immunity. It's only when regular Americans violate some law or rule, even to remedy an obvious injustice, that the importance of enforcing the rules is suddenly sacrosanct. But in this case, the great-grandmother was about to retire anyway, gets her full pension, and walks out the courthouse door knowing she helped free an innocent man from prison.

That's a happy ending.

The true outrage in this case is that Nelson was twice denied a DNA test that ultimately proved his innocence. Judge Byrn may have been following the letter of the law when he denied those two DNA requests, but he wasn't serving justice -- he was keeping an innocent in jail for two extra years. Why deny any inmate a DNA test that could definitively prove that he was innocent, especially in a country where DNA evidence has led to the post-conviction exoneration of 310 people? On average, those wrongfully incarcerated men served 13.6 years in prison.

Yet according to the Innocence Project, "Despite the widespread acceptance of DNA testing as a powerful and reliable form of forensic evidence that can conclusively reveal guilt or innocence, many prisoners do not have the legal means to secure testing on evidence in their case," and as frustratingly, "even in many of the states that grant access to DNA testing, the laws are limited in scope and substance. Motions for testing are often denied, even when a DNA test would undoubtedly confirm guilt or prove innocence and an inmate offers to pay for testing."

The system is unjust. That is the national outrage illustrated once again by this case.

Of course, it was also illustrated by the case of Willie Manning. "On the eve of his execution," my colleague Andrew Cohen explained in a powerful article published in May, "state officials say there should be no DNA or fingerprint testing for a condemned man who maintains his innocence."

What sort of state official opposes such requests?

When an inmate is exonerated by DNA, the most important consequence is the release of an innocent man or woman from prison, but that isn't all that happens. Taxpayers need no longer pay for room and board. Family members and friends stop suffering an absence. And in roughly half of DNA exonerations to date, the true perpetrator of the crime has been identified by the evidence. Everyone wins, save for the police, prosecutor, judge, and jury who put the innocent man away. They ought to admit their mistakes. Many do. But sometimes they keep fighting.

The cost of a DNA test is trivial compared to the possibility (and cost) of incarcerating an innocent person for years or even decades. A criminal justice system that lived up to its name wouldn't force prisoners to fight for these tests, jumping through hoops that require a law degree to understand. A just system would automatically test DNA in any case where it could conclusively prove innocence or guilt. Too often in our system, the adversarial nature of most proceedings obscure the fact that the end goal is to punish the guilt and exonerate the innocent. If prosecutors and judges who send innocents to prison face no consequences for doing so, even as a court clerk who helps to exonerate an innocent man is fired for insubordination, everyone may well be faithfully applying rules that were adopted with the best of intentions.

The contrast nevertheless suggests that it is time to adopt better rules (barring better Supreme Court justices). The Innocence Project says state DNA statutes should have the following attributes:

• Allow testing in cases where DNA testing can establish innocence - including cases where the inmate pled guilty

• Not include a "sunset provision" or expiration date for post-conviction DNA access

• Require states to preserve and account for biological evidence

• Eliminate procedural bars to DNA testing (allow people to appeal orders denying DNA testing; explicitly exempt DNA-related motions from the restrictions that govern other post-conviction cases; mandate full, fair and prompt proceedings once a motion seeking testing is filed)

• Avoid creating an unfunded mandate, and instead provide the money to back up the new statute

• Provide flexibility in where and how DNA testing is conducted

I'll bet Sharon Snyder would sign on to all that. I'm less sure about her former colleagues in Jackson County. But what really matters is the legislation passed by state legislators and Congress. DNA exoneration should be a priority -- it's a rare opportunity to make almost everyone better off.

How ‘Sloppy’ Fire Science Sends Innocents to Prison

The following opinion by Paul Bieber was published by The Crime Report on July 23, 2013.

For George Souliotes, this 4th of July was an Independence Day like no other. It was his first full day of freedom, after 16 years behind bars in California for crimes he did not commit.

Seventeen hundred miles away in Texas, Ed Graf spent his 4th of July in the same manner he has for the past 27 years—an innocent man confined in a state prison. His celebration of freedom will have to wait.

George Souliotes and Ed Graf do not know each other, but they share an unenviable bond: they were both wrongfully convicted of arson and murder and were both sentenced to life without parole.

Souliotes was tried in Modesto, CA for a 1997 blaze in his rental property that killed a mother and her two young children. Graf went to court in Waco, TX for a 1986 fire in his backyard shed that killed his two step-sons. In each case an amateurish fire investigation quickly escalated into a full-fledged witch hunt.

Fire investigators testified with absolute certainty in both cases that deep charring, holes burned into the wooden floors and "pour patterns" could only have been caused by an ignitable liquid, such as gasoline or paint thinner, intentionally used to start the fire. They also testified that each fire burned "abnormally hot,” further suggesting to investigators that the fires were fueled by a liquid accelerant.

The forensic expert testimony in these cases has been shown to be fundamentally unreliable.

The 1992 publication of NFPA 921 Guide for Fire and Explosion Investigation warns investigators not to rely on burn pattern analysis as proof of the presence of an ignitable liquid. A 1997 study by the United States Fire Administration demonstrated that the suspicious burn patterns listed above are created in any fully involved compartment fire, regardless of ignitable liquids, and that the heat of a fully developed fire has nothing to do with the use of a liquid accelerant.

More recently, blind study research by the Arson Research Project has shown the accuracy of experienced fire investigators in determining the presence of a liquid accelerant under these circumstances to be no better than a random guess.

Unreliable burn pattern analysis was so prevalent in the 1980s and 1990s that the Texas Forensic Science Commission recently recommended that all arson convictions in Texas be reviewed in order to determine which of the convictions are based on unreliable forensic evidence. The Texas Innocence Project took up the call and in conjunction with the Texas State Fire Marshall's Office has reviewed hundreds of the state's arson convictions.

The review has narrowed the field to less than a dozen cases, among over a thousand Texas arson convictions, where the presence of unsound forensic fire science is mixed with strong claims of actual innocence.

While fire investigators across the country slowly came to grips with the reality that many previous conclusions might have landed innocent people in prison, the Souliotes and Graf cases moved through the crushingly slow process of appellate review.

With the tenacious efforts of the Northern California Innocence Project and pro bono attorneys, Souliotes’ case found its way through state and federal courts. It landed in an evidentiary hearing in front of U.S. Magistrate Judge Michael Seng, who concluded that “no reasonable jury would have found him guilty beyond a reasonable doubt.” In a confirming opinion, U.S. District Judge Anthony Ishii said that Souliotes had shown “actual innocence.”

Late last month, the independent Texas fire review panel convened by the State Fire Marshal’s Office concluded that the original determination of arson by Texas fire investigators in the case of Ed Graf was mistaken. Speaking of the Graf case, Texas State Fire Marshal Chris Connealy said the original investigators “failed to meet the present day standard of care.”

The Souliotes and Graf cases represent far more than simply not meeting a basic standard of care. They represent a nationwide travesty: accidental fires continue to be misidentified as arson leading to wrongful convictions and at least one execution.

Convicted of arson and murder for the 1991 fire that killed his three young children in Corsicana, TX, Cameron Todd Willingham was executed in 2004. His conviction was based on the same discredited evidence present in the cases of Souliotes and Graf. Review of the Willingham case by the Texas Forensic Science Commission and independent experts has confirmed that the fire leading to his conviction was almost certainly accidental, not arson, and that the forensic determinations of the state’s experts were not based on science.

In the case of Willingham, sloppy fire science, mixed with a good dose of bias and speculation, led to the execution of an innocent man.

In spite of the presence of undisputedly flawed forensic evidence, a complete lack of reliable evidence to support a determination of arson, and strong showings of actual innocence, local prosecutors in California and Texas promised to go forward with retrials in both cases.

After protracted negotiations with Souliotes’ attorneys, on the eve of trial the Stanislaus County District Attorney agreed to drop the charges of arson and murder in exchange for a no-contest plea to involuntary manslaughter for failure to maintain the smoke detectors in the rental property where the fire occurred.

Under the terms of the plea, Souliotes did not admit guilt; but he did acknowledge that prosecutors had sufficient evidence to prove their allegation that the smoke detectors were not properly maintained.

The re-trial of Ed Graf is scheduled to begin in Waco in the coming weeks.

Two things must be done. First, charges should be dropped against Ed Graf and he should be immediately and unconditionally freed. Like George Souliotes, Ed Graf has been in prison for dozens of years for a crime that was never a crime at all.

Second, the same type of arson review conducted in Texas should be performed in arson cases nationally. The Texas Innocence Project and State Fire Marshal’s Office are proactive and forward thinking in their review of Texas’ arson convictions. Convictions outside of Texas deserve no less.

On Wednesday afternoon, July 3rd, George Souliotes walked through the lobby of the Stanislaus County jail towards the front doors that separated him from his first steps of freedom. After hugging his family and defense attorneys, while wiping tears from his eyes, he pointed through the glass of the front door.

“I see the sun,” he said. “It’s beautiful”.

It is time for Ed Graf and others languishing in prison on wrongful arson convictions to see the sun.

Paul Bieber is a private investigator specializing in indigent defense investigation and the founder and director of the Arson Research Project. He welcomes comments from readers.

Reforms to make sure justice is served to the right people

The following opinion by David A. Moran was published by the Detroit Free Press on July 4, 2013.

It’s no exaggeration to say Detroiter Harold Wells lost 18 months of his life because he chose to wear brown pants one night.

In the mid-1990s, when I was at the State Appellate Defender Office, I was assigned to represent Wells, who had been sentenced to four years in prison for stealing a car after a trial lasting only 30 minutes. But there were serious problems with the prosecution’s case that appeared to have escaped the notice of the lawyer who was supposed to be representing him at trial.

And that’s why I’m pleased that Gov. Rick Snyder signed indigent defense reform legislation Monday.

The legislation creates a commission to set and help counties implement accountability measures for public defense attorneys.

I’ve seen firsthand, over and over, how our current system of indigent criminal defense all too often results in innocent people going to prison.

In Wells’ case the prosecution called two witnesses, both police officers. The first officer testified that he saw a car run a stop sign. He ran the plates, the car came back as stolen, and a chase ensued. The car stopped, and the driver and two passengers bailed out, with the driver disappearing into the night. The officer could describe the driver as only a black male with brown pants.

The other officer testified that he heard the first officer’s description and, about 15 minutes later and a quarter mile away, saw a black male wearing brown pants walking down the street. The officer arrested that man, Harold Wells.

And that was the prosecution’s entire case. Appointed defense counsel did no real cross-examination, did not make an opening statement, presented no witnesses and barely made a closing argument.

Immediately after I was assigned the Wells case on appeal, I did something that trial counsel had never bothered to do: I read the police report. In that report, I learned that when police took Wells to the station that night, the passengers who had been arrested earlier said, “That’s not him.”

We found one of those passengers, who not only confirmed that Wells was not the driver, but also told us that she had given the police the name and address of the man who was driving.

As a result, Harold Wells was freed after serving 18 months in prison. In addition to the incalculable damage to Wells’ life, it cost Michigan about $50,000 to incarcerate him, while the real thief remained at large.

Unfortunately, the Wells case is far from unique. In investigating and litigating scores of cases, I have learned that it is all too common for appointed trial attorneys in Michigan to show up for trial woefully unprepared.

Ken Wyniemko, who was exonerated by DNA after serving nine years in prison for rape, was represented by a lawyer who was appointed to his case just four days before trial began.

As the Free Press documented in a series in 2002, Eddie Joe Lloyd served 17 years for a murder he didn’t commit after his court-appointed lawyer spent less than a week preparing for his trial.

A 2008 study confirmed that Michigan has one of the worst systems for providing trial-level indigent defense in the nation and that appointed lawyers, as a rule, lack the time and resources to adequately defend their clients.

Providing adequate legal defense to everyone the state accuses is a bipartisan issue. We all pay when a poorly trained or overworked attorney botches a case, sending an innocent person to prison while the real perpetrator remains free to commit more crimes.

Snyder and the Legislature deserve credit for making this issue a priority. As a result of their efforts, I hope we soon will have an indigent defense system that prevents wrongful convictions — instead of creating them.

David A. Moran is a clinical professor of law at the University of Michigan Law School. In 2009, he co-founded the Michigan Innocence Clinic, which handles cases of actual innocence on behalf of inmates for whom DNA evidence isn’t available. The clinic has so far freed seven people who were wrongfully convicted.

Cuyahoga County (Ohio) assistant prosecutor fired, but larger questions remain: editorial

The following editorial by the Editorial Board of the Cleveland Plain Dealer was published on June 7, 2013.

Aaron Brockler was working way too hard. Now he has some time off to think about it.

But the damage he has done will be a long time dissipating, and some of it may well be permanent.

The assistant Cuyahoga County prosecutor was fired last week after it came to light that he had tried to influence the testimony of witnesses in a homicide case.

Brockler got into a Facebook chat with two women listed by the defense as alibi witnesses for Damon Dunn, a 29-year-old Cleveland man accused of shooting Kenneth "Blue" Adams to death at an East Side car wash in May 2012.

Brockler posed during the chat as a former girlfriend who had had a child with Dunn -- a tale that angered the women and, Brockler says, persuaded them not to "lie for him."

Brockler said he included a transcript of the Facebook chat in the case file. The Prosecutor's Office, however, says information about the Facebook session came from outside sources.

County Prosecutor Timothy J. McGinty fired Brockler and withdrew his office from the Dunn case because of the possibility that Brockler will be called to testify. The Ohio Attorney General's Office will take it from here.

Brockler told Plain Dealer reporter James F. McCarty that his sole motivation was getting to the truth. "I think the public is better off for what I did," he said.

He could not be more wrong.

There is a proper, ethical way to impeach a witness, but Brockler's method was out of bounds. As a result, he has handed the defense a prosecutorial misconduct argument to put before a jury.

He has done his own career and his own reputation considerable damage.

His actions have called into question, yet again, the culture of a Prosecutor's Office that has often been accused -- and sometimes convicted -- of being more zealous about winning cases than about seeing justice done.

He has opened the door to questions about the conduct of previous cases in which he was involved, just as revelations of misconduct by Carmen Marino, the star of the Prosecutor's Office in the 1980s and '90s, led to a string of retrials and appeals.

Brockler's firing was a given.

Now McGinty owes the public a thorough inquiry to determine whether it alone solves the problem.

New York State Legislators some simple steps to help reduce wrongful convictions

The following editorial by the Buffalo News was published on May 17, 2012

Once again, an Erie County resident has been exonerated of charges on which he was wrongly convicted. Nathanial A. Johnson spent nearly four years in prison for an armed robbery he did not commit. And still, Albany cannot find the courage – or even the common sense – to adopt the reforms that would make New York’s criminal justice system more just. What exactly do lawmakers need before they can act?

Perhaps it’s just that the wrongfully convicted have no powerful lobby to support them. What’s four years – or five or 15 or 20 – in prison, anyway? So what if innocent people are trapped behind bars while the actual criminals remain free to rob, rape and murder?

It’s a serious matter. While Anthony Capozzi of Buffalo spent 22 years in prison for rapes he did not commit, the real rapist, Altemio Sanchez, continued attacking women and soon progressed to murder as the Bike Path Killer. His victims might well be alive today if the reforms now being pushed in Albany were in force then. What other victims await because of the Legislature’s indifference?

Capozzi had been misidentified as the rapist by Sanchez’s victims, and from that moment his fate was sealed. Johnson was also wrongly identified by the victim of the robbery, and his conviction was further cemented by sloppy police work and a shady deal made by the prosecution with a witness facing a drug charge.

Witness misidentification is, in fact, the most common cause of wrongful conviction. Something can be done about that, and about another leading cause, the false confession. All that is required is the will to act.

Those reforms include changes in the way police conduct lineups. Witness identifications are notoriously unreliable, especially from victims who were under great stress at the moment of the crime, perhaps even with a gun aimed at them.

An inappropriately conducted lineup can not only lead the witness in a particular direction – purposely or not – but it can also solidify that identification in the mind of the victim who longs for justice but who may initially have been uncertain. “It’s like trace evidence,” said Stephen Saloom, policy director for the Innocence Project in New York City. Once you contaminate an identification, you can’t restore it.

Similarly, video recording of interrogations guards against the phenomenon of false confession, in which a suspect, often under unrelenting pressure and perhaps emotionally or mentally impaired, tells investigators what they want to hear in a vain effort to end their suffering.

These kinds of reforms have been adopted in other states, Saloom said, and none has backed away from them. They work. They produce better detectives and better law enforcement. They help keep innocent people out of prison.

Both Gov. Andrew M. Cuomo and the Assembly have favored reform efforts in these areas. The problem is in the State Senate, where members seem unable to comprehend that preventing wrongful conviction is a law-and-order issue, and a powerful one.

Saloom believes senators are waiting for the state’s district attorneys to lead the way before they will approve any legislation, but that’s allowing the tail to wag the dog. What is more, the reforms being pushed in New York are the product of a committee that was heavy with law enforcement members. There is no justification for continued delay.

One state senator, Patrick Gallivan, R-Elma, is Erie County’s former sheriff. With so many wrongful convictions in his home county – a third recent one was of Lynn DeJac Peters, wrongfully convicted of murdering her daughter – he could be a powerful voice of reason in the Senate, and, indeed, he should be. His resume confers on him a responsibility and his leadership could make a difference.

Johnson was saved from even more time in prison largely because a friend wouldn’t let the case drop. That was his good fortune, but innocent people should not have to depend upon that. The state of New York should be on their side and, as of today, the state doesn’t much care.

Unfinished Business

The following opinion by O. Ricardo Pimentel was published by the San Antonio Express-News on May 23, 2013.

The photo of Gov. Rick Perry signing legislation that diminishes the chances of wrongful convictions in Texas is rich in irony. More important, it projects an indelible sense of job undone.

The irony is embodied in the now-deceased person of Cameron Todd Willingham, who also points to the unfinished work. Those intimately familiar with Texas' criminal justice history can tell you that Willingham, even more than Michael Morton — whose case prompted this legislation — is the state's prime example of wrongful conviction.

Morton's story is incredibly tragic. He spent nearly 25 years in prison after being convicted in the beating death of his wife. The prosecution withheld evidence that would have cleared him. Thanks to the work of the New York-based Innocence Project, Morton was exonerated by DNA evidence that pointed to another man, who has since been convicted.

But Morton is alive. Texas executed Willingham in 2004, convicted on the strength of highly flawed arson evidence for the deaths of his three daughters in Corsicana. The evidence actually points to no arson.

The photo shows Perry signing the bill at his desk, flanked by Morton and legislators. The irony: a report discrediting the evidence used to convict Willingham came across that desk or one similar in plenty of time for Perry to have spared Willingham's life.

It is likely — if not certain — that Texas executed an innocent man. At the very least, the new evidence pointed to the need for a new trial. But the state ignored the report. And the story might have ended ingloriously there but for Perry's actions in 2009, when he replaced three members of the Texas Forensic Science Commission as it was considering the flawed evidence used to convict Willingham. The governor obviously feared embarrassment as a primary challenge from then-U.S. Sen. Kay Bailey Hutchison seemed likely. His handpicked commission chairman squelched the Willingham investigation.

Understand, the bill Perry signed on May 16 was absolutely necessary. Sponsored by Sen. Rodney Ellis, D-Houston, the measure forces prosecutors to share all evidence relevant to the defense. Had it been around, Morton would have likely been spared those 25 years in prison. And, now, others will surely be spared that fate. Have I mentioned that Texas has a nation-leading 117 exonerations?

But about that unfinished business. Texas has undertaken other reforms of criminal justice. It's now easier, for instance, for inmates to get access to DNA testing.

But DNA evidence is not available in all cases. Even with this new requirement for sharing evidence, there will surely be convictions in the future based on circumstantial evidence, notoriously flawed eyewitness accounts, testimony from untrustworthy sources and other evidence of dubious scientific and factual merit. And even with the scare presented by the pursuit of criminal charges against the district attorney who prosecuted Morton, there will still be prosecutors for whom winning will be the most important thing. Some of these will be capital cases.

The unfinished business for Texas is to rid itself of the death penalty — an absolute sanction from which there is no remedy.

There can be no guarantee of error-free process in these types of cases and others. It will be legal due process, to be sure, scant comfort to someone wrongfully executed. If Morton's case involved the death penalty, he'd be dead. Willingham is, killed on the strength of invalid arson evidence. There will be errors in future death penalty cases. Since it cannot be otherwise, Texas — and all other states — must cease killing people.

Beyond the Brady Rule

The following editorial was published by the New York Times on May 18, 2013.

Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.

It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

It is impossible to know how often prosecutors violate Brady since this type of misconduct, by definition, involves concealment. But there is good reason to believe that violations are widespread. Hundreds of convictions have been reversed because of prosecutorial suppression of evidence. In many cases, the exculpatory evidence surfaces only on appeal of a conviction, and often comes to light because other aspects of the prosecution are rife with error.

The 2011 case of John Thompson is particularly instructive — as an example of atrocious prosecutorial misconduct and of the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row for a murder he did not commit. He was exonerated when an investigator found that lawyers in the New Orleans district attorney’s office had kept secret more than a dozen pieces of evidence that cast doubt on Mr. Thompson’s guilt, even destroying some. Yet the Supreme Court’s conservative majority overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights. Outrageous breaches of due process rights in such cases show that the Brady rule — which seems essentially voluntary in some places — is simply insufficient to ensure justice.

A better approach is to require the opening of prosecutors’ files to defendants, as a general rule. North Carolina adopted open-files reform to make criminal cases more efficient and fair. The state statute requires prosecutors in felony cases, before trial, to make available to the defense “the complete files of all law enforcement agencies, investigatory agencies and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant.” The statute has improved the justice system, including enhancing fairness in plea bargains.

Ohio has followed North Carolina’s lead, and other states should as well. So should Congress. The Justice Department insists that it has solved this problem by tightening requirements for disclosure in its manual for federal prosecutors, but numerous misconduct scandals show that is not sufficient. Since the Brady decision, prosecutors throughout the justice system have acquired more power, with little to deter them from abusing that power. The best way to fulfill the promise of Brady is with open-files reform, which addresses the need for full disclosure of evidence that could show a defendant’s innocence.

Law Enforcement Commitment to Exonerating the Innocent Grows

by Dan Abrams

The following opinion was published by Lawyers.com on April 10, 2013.

As a regular observer of our criminal justice system, there are few things more maddening than to watch a prosecutor or other law enforcement officials simply refuse to say, “We got it wrong.” Despite overwhelming evidence of innocence, some police officers and district attorneys remain steadfast in having convictions stand or, at best, will cut deals to release defendants only if they plead no contest (often called an Alford plea), while maintaining their innocence. Yes, most district attorneys are elected officials and apologizing is anathema to pols, but DAs simply can’t behave like other politicians. Their power is too absolute, and the stakes too high.

So it was beyond heartening to see an announcement last week from the National Registry of Exonerations, a joint project of the University of Michigan and Northwestern University Law Schools, that in 2012 police and prosecutors assisted with exonerations at “record high levels,” and that, for the first time, law enforcement initiated or cooperated in more than half of those cases.

Growing Trend
This is a truly transformative period as we transition from a time where DNA testing was not (at least widely) available, to one where it regularly — even routinely — assists in convictions, forces plea deals, and can also help clear those falsely accused. Since 1989, 63 percent of sexual assault exonerations, for example, have included DNA evidence.

The report found that of the 63 known exonerations in 2012, law enforcement initiated or cooperated in 34 (54 percent). The previous high for assistance from the authorities, according to the report, was in 2008 (39 percent), and since 1989, officials have assisted, on average, in about 30 percent of those cases where defendants have been cleared.

That is not to ignore the reality that many defendants falsely maintain their innocence, thereby muddying the waters for the truly innocent. Nor in every one of the exoneration cases were the authorities unambiguously dead wrong. But in the overwhelming majority, as a result of everything from sloppy police work and overeager prosecutors, to inaccurate eyewitness testimony, false confessions and even guilty pleas, they just blew it.

Professor Samuel Gross, editor of the Registry, believes the numbers could reflect changes in state laws that allow for post-conviction DNA testing, as well as the increasing number of district attorneys’ offices that now have units devoted to ensuring the integrity of convictions.

Still a Long Way to Go
While the news is promising and comforting, there is a dark legal cloud that remains. The study also found that official cooperation was least likely where it is needed most, in cases with the most severe sentences — capital murder and mass child sex abuse cases — and far more likely in more minor robbery and drug cases.

In particular, those who support the death penalty should take note. The death penalty will become a relic of a bygone age if prosecutors keep “winning” death sentences for those proven innocent, and maybe even worse, then refuse to cooperate in ensuring that justice is served. What is basically a massive legal editing system is, and will remain, focused on death penalty cases, leading to greater scrutiny after trial. So it should come as no surprise that death sentences produce exonerations at nine times the rate of all homicide convictions. We just can’t get the death penalty wrong, and states around the country have abolished or suspended it for this very reason.

So kudos to law enforcement for mustering the courage to admit their mistakes and to attempt to remedy them, but we still have a ways to go.

U.S. Attorney Robert O’Neill’s Tangled Web

by James Scanlan, Esq.

On April 4, 2013, Robert E. O’Neill announced that this summer he is leaving his post as U.S. Attorney for the Middle District of Florida to become a managing director with Freeh Group International Solutions, LLC, a global risk management firm founded by former FBI Director and former U.S. District Judge Louis J. Freeh. O’Neill was apparently hired by Freeh Group CEO James R. Bucknam, who has known O'Neill since the mid 1980s when both worked at the Manhattan District Attorney's office. A Tampa Bay Times article quotes Bucknam as observing that, among other qualities, O’Neill has “a keen sense of ethics.” A Tampa Bay Tribune article quotes Bucknam as noting that O’Neill is “extremely ethical.”

O’Neill’s ethics, and his reputation for ethics, would naturally be important to the Freeh Group. The firm, whose specialties include business ethics and compliance, as well as investigations and due diligence, and which was retained by Penn State’s Board of Trustee’s to investigate the University’s leadership’s handling of evidence of child abuse by former football coach Jerry Sandusky, lists integrity and credibility as the first two of the attributes it brings to a client.

O’Neill is the subject of more than a dozen articles I posted here between 2010 and 2011 as well as the Robert E. O’Neill profile page on jpscanlan.com and a large group of related materials I make accessible by means of the Prosecutorial Misconduct page of the same site. The articles, links to which are collected here, and the materials on the website discuss prosecutorial abuses committed by O’Neill as lead trial counsel in U.S. v. Dean, a case in which both the district court and court of appeals severely criticized O’Neill’s conduct. The articles and other materials also address the fact that O’Neill made a false statement on an application for the U.S. Attorney position that he submitted to the Florida Federal Judicial Nominating Commission. Most of these materials have been brought to the attention of the Department of Justice, the Senate Judiciary Committee, the Tampa Bay press, and judges in the Middle District of Florida by letters that that are available here.

My descriptions of O’Neill’s conduct are well documented and generally provide links to underlying materials. I suggest that the essential correctness of those descriptions is difficult to dispute. But one thing that no one could possibly dispute is that O’Neill made a false statement on his U.S. Attorney application. In an apparent effort to minimize the matter, O’Neill stated that a District of Columbia Bar Counsel investigation of his conduct in the Dean case was initiated by the convicted defendant. In fact, the investigation was initiated by Bar Counsel itself after reading a court of appeals opinion “deplor[ing]” the conduct of O’Neill and his colleagues. In making the false statement on the application or at other points in the vetting/confirmation process for the U.S. Attorney position, O’Neill almost certainly violated 18 U.S.C. § 1001, a violation for which the limitations period will not expire before June 2014. See the February 19, 2011 Truth in Justice item titled “Robert E. O’Neill and 18 U.S.C. § 1001.”

Among many remarkable aspects of O’Neill behavior as a prosecutor discussed in the referenced materials is O’Neill’s penchant for calling people liars, sometimes (perhaps much of the time) while believing or knowing with absolute certainty that they did not lie. See the September 26, 2010 Truth in Justice item titled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience” and the June 29, 2011 Truth in Justice item titled “Robert E. O’Neill’s Tricks of the Trade – One (The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.)”

The latter item concerns an instance in the Dean case where O’Neill pressured a government agent into giving false or misleading testimony in order that O’Neill could then lead the jury falsely to believe that the defendant lied about a call to the agent. O’Neill then provocatively relied on the agent’s supposed contradiction of the defendant to generally undermine her credibility. That item is lengthy, but, I suggest, worth the time of persons interested in O’Neill’s character or prosecutorial abuse generally, whether or not they conclude that O’Neill and others should have served time in prison either for the underlying conduct or subsequent efforts to cover it up.

The former item discusses the following strident remarks O’Neill made in an effort to undermine a witness in U.S. v. Spellissy: “A liar is a liar. And whether someone is lying to save their soul or their hide, they are still lying. And once you are a liar, you cannot trust that person.” Given the undisputable fact that O’Neill lied on his U.S. Attorney application, these remarks may one day make him a subject of considerable derision among an informed public.

One must assume that O’Neill is aware of these materials, among other reasons, because I have on more than one occasion called them to his attention, including in a July 5, 2010 letter advising him of his obligation to advise the President and those involved in the confirmation process that he had lied on the U.S. Attorney application. And certainly he is aware of the criticism of his conduct by two courts, including that which lead to the DC Bar Counsel investigation.

So, given the premium the Freeh Group places on integrity and credibility, one must wonder what O’Neill told the firm about the existence of so much readily available material calling his integrity into question, as well as about the merit of those materials. Even if there were no merit to anything I (or the courts) have written about O’Neill, a person in O’Neill’s position would have an obligation to advise a potential employer of the widespread dissemination of materials that could cause the employer embarrassment or undermine its reputation. Indeed, even if the materials did not exist, O’Neill would seem to have an obligation to advise the potential employer of the two courts’ criticism of his conduct in the Dean case. For that matter, O’Neill would also have the obligation to advise a potential employer that he had lied on the U.S. Attorney application and that, assuming he violated 18 U.S.C. § 1001 by doing so, he would remain vulnerable to prosecution for some time.

But raising any of these matters would be problematic for O’Neill given the absence of plausible explanations, especially when the potential employer specializes in investigations and due diligence. And advancing an unfounded defense would be deemed deliberate deception of the employer. So, too, however, would be failure to mention things the employer would want to know.

Yet, if O’Neill did advise the Freeh Group of the existence of these things, it is difficult to know how it could have offered O’Neill a position as a managing director. Regardless of what O’Neill might proffer about the credibility of the materials, once aware of their existence, the firm could not responsibly fail to determine whether any serious allegations were well founded. I suggest, however, that it would be difficult for a careful investigation to disagree other than in minor respect with my interpretation of multiple abuses committed by O’Neill in the Dean case, including the heinous and very likely criminal conduct that is the subject of the June 29, 2011 Truth in Justice item. But even if there were not the least merit to my interpretation of O’Neill’s conduct in the Dean case, and not the least basis for the two courts’ criticisms of O’Neill’s conduct in the case, it would remain undisputable that he lied on the U.S. Attorney application. How then could the Free Group offer to hire O’Neill, leave aside publicly laud his ethics?

One possible answer, and one consistent with his behavior in seeking the U.S. Attorney position (as detailed in Addendum 7 to O'Neill’s profile), is that O’Neill did not tell the Freeh Group anything about the web site materials or Truth in Justice items or anything else raising question about his integrity to which he did not have the solidest rebuttal. A person with the tortuous ethics described in the O’Neill profile might even maintain, as prosecutors sometimes do in discovery, that he did not have to tell the potential employer things that were already in the public record (indeed widely available on the Internet). It is a defense that, ironically, would even apply to the false statement on the application. Few employers, however, would be pleased with a candidate’s taking such a position.

Assuming O’Neill failed to advise the Freeh Group of the many widely disseminated materials calling his integrity into question, such failure would raise like questions about his integrity irrespective of the validity of those materials. It would also provide the Freeh Group a basis for withdrawing its offer quite apart from a need to do so to maintain its credibility.

But if O’Neill did not tell the Freeh Group about these matters, one must still wonder how the Freeh Group could offer O’Neill a managing director position without doing the things that typically would bring such matters to its attention. Possibly the firm relied on Bucknam’s long acquaintance with O’Neill (and possibly Freeh’s as well). The firm may also have assumed that the recent vetting of O’Neill by the Department of Justice and Senate Judiciary Committee afforded it some confidence that O’Neill would withstand its own inquiry into his background. Unfortunately, the dubiousness of Department of Justice and Senate Judiciary Committee implied or explicit representations as to the trustworthiness of presidential appointees – as reflected in the above-mentioned September 26, 2010 Truth in Justice item and an October 3, 2010 Truth in Justice item titled “Whom Can We Trust?” – is not as widely known as it ought to be. One must doubt, however, that the Freeh Group would encourage a client to hire a person for an important position without at least doing an Internet search of the person. Yet one cannot do a simple Internet search on O’Neill without being confronted with many of the materials described above.

In any case, the Freeh Group is now aware of these materials and, and so long as it wishes to represent itself to its clients as a firm of integrity and credibility, and to impliedly or expressly represent that O’Neill has these attributes as well, it faces obligations akin to some of those faced by the leadership of Penn State that were the subject of the Freeh Group investigation. One key difference, of course, is that the subject of the obligation is already widely publicized and the firm must face the prospect that a client may one day ask it to explicitly address whether there is merit to issues I or the courts have raised about O’Neill’s integrity, including the simple matter of whether he in fact lied on the U.S. Attorney application. The firm will have several months to consider these issues before O’Neill joins it to head a Miami office that is apparently intended to provide a base for the firm’s growing Latin American practice.

Addendum - The FBI Award to Independent Counsel David M. Barrett
Louis J. Freeh is mentioned in a March 8, 2011 Truth in Justice item titled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett,” an item that also mentions O’Neill in its body and two addendums and that raises issues about the processes of putatively competent governmental entities charged with ensuring the integrity of public officials that are similar to those raised by the appointment of O’Neill to the U.S. Attorney position. The main subject of the item is former Independent Counsel David M. Barrett, whose investigation of HUD Secretary Henry Cisneros for a false statement during the appointment process ran from 1995 to 2006 and expended $22,750,000 and would be described by one former Department of Justice official as “one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement.” At some point Barrett received the highest award bestowed on a civilian by the FBI, the Thomas Jefferson Award, with an inscription signed by FBI Director Freeh that read: “To David Barrett with respect and gratitude for your service to the nation, perseverance, and dedication to your duty from your colleagues at the Federal Bureau of Investigation.” The web page for Barrett’s firm stated that Barrett received the award after completion of his Independent Counsel investigation. Inasmuch as Freeh left the FBI in June 2001, however, the award could have been made no more than six years into Barrett’s investigation.

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Wrongful convictions a lasting scar on Texas justice system

The following opinion by Bob Ray Sanders was published by the (Ft. Worth, Texas) Star-Telegram on February 12, 2013.

In a Georgetown courtroom last week, a Texas judge took the witness stand on his own behalf during a special court of inquiry -- a rare event in this state -- to determine whether he committed prosecutorial misconduct 25 years ago as Williamson County's district attorney.

The court of inquiry will decide whether he should be prosecuted.

Monday morning, a 58-year-old father of two entered a Corsicana courtroom in shackles but left that day a free man after DNA testing proved he had been wrongly convicted of murdering a woman in 1981, a crime for which he spent almost 30 years behind bars.

At the time he was convicted and given a 99-year-sentence, his son and daughter were 7 and 4 respectively.

The two cases continue to shine a spotlight on this state's tragic record of sending innocent people to prison, and they highlight another problem that has received too little attention over the years: prosecutorial misconduct, whether unintentional or deliberate.

State District Judge Ken Anderson, who sits on the bench in Georgetown, was district attorney of Williamson County in 1987 and prosecuted Michael Morton, accused of fatally beating his wife, Christine.

Morton was convicted.

In October 2011, Morton, after serving 25 years of a life sentence, was freed when DNA testing proved that he was not the murderer.

The new testing implicated another man, who has been arrested.

Last fall, the State Bar of Texas found that Anderson had withheld evidence in Morton's case and had specifically disobeyed the trial judge's order to turn over all documents favorable to the defense.

Anderson at the time said the state had no such evidence, a statement the State Bar said "was false."

Included among the five specific pieces of evidence that the prosecution withheld was a transcript of statements by Morton's mother-in-law that indicated that the couple's 3-year-old son had witnessed his mother's beating, that the boy had said his father was not home at the time and that he said the perpetrator was "a monster."

Also withheld, the State Bar said, was a statement from a neighbor who had seen something suspicious: a man parking a van outside the Morton's home and going into a wooded area.

State District Judge Louis Sturns of Fort Worth is presiding over the court of inquiry. His decision is still weeks away.

During proceedings last week, Anderson, 60, took no personal responsibility, but he told Morton "the system obviously screwed up," according to The Associated Press.

Anderson said he ran a competent, professional office and his "worst nightmare" was knowing that an innocent man had been convicted.

If his experience is a "nightmare," what would you call that of the innocent man who had his freedom and his children taken away from him?

There is a growing fraternity of exonerated people in Texas who collectively have spent hundreds of years in prison.

In Dallas County alone, more than 30 people have been freed as a result of DNA testing.

The most recent exoneration came Monday in Corsicana. Randolph Arledge had been convicted of stabbing Carolyn Armstrong to death.

His guilty verdict was based partly on faulty eye-witness testimony -- a common flaw in such cases -- and statements by two robbery suspects who claimed Arledge told them he had stabbed someone.

The two robbery suspects had received favorable treatment in their cases in exchange for their testimony, according the "Memorandum in Support of Application for a Writ of Habeas Corpus."

Then there's the case of Larry Ray Swearingen, which I wrote about last month. Swearingen, who many people think is innocent, was scheduled to be executed for the 1998 murder of Melissa Trotter, a 19-year-old Montgomery College student. A district judge stayed that execution on Jan. 30.

Wrongful convictions will be a lasting scar on the Texas criminal justice system, which has to be the concern of more people than those involved in the Innocence Project.

But in order to address it fully, we also must examine carefully the issue of prosecutorial misconduct.

Bob Ray Sanders' column appears Sundays and Wednesdays.

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Twitter: @BobRaySanders

Low payouts after exoneration

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

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

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

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

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

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

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

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

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

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

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

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

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

Why Police Lie Under Oath

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Better Late Than Never

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

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

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

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

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

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

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

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

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

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

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

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

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

Alvarez lacks insight into wrongful convictions

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


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

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

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

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

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

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

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

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

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

Exoneration but no justice for wrongly imprisoned man in Va.

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

National Post
jkay@nationalpost.com