Guest Shot: How Justice Gets Done in Spite of the Justice System

Commentary by PETE SHELLEM /
Of The (Harrisburg, PA) Patriot-News
09/14/07

Sometimes justice happens in spite of the justice system.

Sometimes it only happens when the people in the justice system get their noses rubbed in their messes.

On Tuesday, Lancaster County District Attorney Donald R. Totaro did the right thing by freeing Charles T. "Ted" Dubbs from a 12- to 40-year prison term in two sexual attacks he probably did not commit. Dubbs was sentenced in May 2002.

Wilbur Cyrus Brown, a serial rapist who confessed to 13 other rapes, including one on the same jogging trail where Dubbs supposedly committed his crimes, confessed to those attacks in November.

But Totaro had to spin things to portray his office as a well-oiled machine that immediately turned to fix an honest error when it came to their attention.

That’s not what happened.

The case first came to my attention when Brown pleaded guilty last November and was sentenced in Dauphin County Court. It came out at that hearing that Brown had confessed to crimes for which Dubbs was wasting away in prison still proclaiming his innocence.

When I asked about it afterward ­- assuming they were going to free an innocent man - I got the exchanged glances, awkward smiles and the "no comments."

It was after that I got the proverbial bug in the ear. The cops figured it was a no-brainer, but Totaro’s office didn’t want to hear it. Maybe it had something to do with the election year.

True, Totaro’s first assistant at the time, Heidi Eakin, pointed out the similarities between the cases. But when members of the task force investigating the serial rapes presented her with Brown's 60-page confession, she got her back up.

When I interviewed her in May, she was adamant that Dubbs was guilty and called his alibi defense "a joke." She speculated Brown was a copycat who committed 13 subsequent rapes after reading about Dubbs’s arrest and conviction.

Eakin said she specifically told the police not to reinterview the victims. When asked what she was doing to investigate the confession she told me "that’s not my job."

As an officer of the court, she was obligated to give the confession to the county public defender’s office. From there, it was forwarded to Dubbs.

Dubbs was on his own. Fortunately, he had the wherewithal to file a post conviction appeal on his own.

If you read the documents filed by Totaro’s office, they go to great pains to explain why Dubbs had to sit in prison for almost a year after his office had compelling evidence Dubbs was innocent. It also appears to be a response to an article published in The Patriot-News in May, an article Totaro called a "hatchet job."

Although he claims his office was investigating the case all along, his petition to release Dubbs says someone was assigned to look into it sometime after March. It was about that time I began asking questions about the case. The Lancaster investigators didn’t interview the detectives who took the confession from Brown until June and they were still under subpoena for a hearing that was supposed to take place Thursday.

Totaro’s filing also says Brown’s initial confession "was originally considered by those in law enforcement who were familiar with the case with a substantial amount of skepticism," because of inconsistencies with the crimes.

In fact, the lead investigators of the task force were the ones that took the confession. Even if some details were wrong, it wasn’t inconceivable that a man who they knew through DNA testing committed an assault on a woman in the same location a year later while Dubbs was in prison and then a dozen more might have committed these "signature crimes."

After duplicating much of the probe that was done at the time of Brown’s confession, Totaro’s investigators interviewed Brown last week and determined he was likely telling the truth. Not only that, he told them that he had written a letter at the time of his arrest admitting those crimes. It was addressed to state police Cpl. George Cronin and sent to his mother with instructions that it only be opened if he died.

To their credit, they located that letter, which seemed to be the clincher in the decision to drop the case against Dubbs.

Dubbs’ conviction was an honest mistake. Although the identification process was flawed, the victims were adamant he was their attacker and only expressed doubts after seeing the video of Brown’s detailed confession.

It’s fortunate it ended the way it did. In many of the wrongful convictions that have been exposed in recent years, dishonest cops were to blame.

If it weren’t for a few conscientious law enforcement officers, Dubbs might have rotted in prison for another decade.

PETE SHELLEM: 717-255-8156 or pshellem@patriot-news.com

Troy Davis Video Project

October 9th is Troy Anthony Davis’ birthday and in celebration of this occasion we’re asking all of his supporters worldwide to send him a video birthday message and to post that message on YouTube.

The Troy video project is simple. Using a webcam, camera phone, camcorder or any other recording device, simply record a positive video of 60-seconds or less whishing Troy a ‘Happy Birthday’ while reaffirming to the state of Georgia that the global support network behind Troy believes innocence matters

As you know, serious doubts of Troy ’s guilt have been raised in recent months, and we want to take this occasion to let the world know that innocence indeed does matter!

With so many Troy supporters around the world, we want these messages to be lively and creative. Feel free to sing it, rap it, play it, draw it, dance it, paint it, shout it from the roof-tops. What you say or how you say it isn’t important. What’s important is that you just say it!

Please keep these messages positive and refrain from bad language and controversial statements that could be viewed as inflammatory. We don’t want to upset people - we just want to show the world that Troy has global support in his fight for justice.

After you’ve recorded this message – please post it on YouTube using this link: http://www.youtube.com/group/NCADP and email the video to: troyvideo@gmail.com

Let’s not only give Troy a "Happy Birthday," let us also speak loud and clear in one voice that Innocence Matters!

Gregory A. Joseph
National Coalition to Abolish the Death Penalty
www.ncadp.org
gjoseph@ncadp.org

Guest Shot: Gonzo given even more power over life and death

by Mary Shaw

August 16, 2007

Since the first DNA exoneration took place in the U.S. in 1989, 142 people have been freed via DNA evidence after being wrongfully convicted of crimes they did not commit. Many more have been exonerated via other kinds of late-coming evidence.

Some of those innocent people were freed from death row. These folks are the "lucky" ones, because they had a chance to prove their innocence before they were put to death. How many have not been so lucky? We cannot know.

But do we really want to risk that kind of mistake?

Even if you're in favor of the death penalty, surely you want to take every precaution to ensure that the condemned prisoner is truly guilty, and that you're not killing the wrong person. And often that takes time.

Nevertheless, time may not be an available luxury for prisoners in the future, even those condemned to die.

The Washington Post reported yesterday that Attorney General Alberto Gonzales will be getting "expanded powers to hasten death penalty cases under regulations being developed by the Justice Department."

The Post goes on to say that these new rules "would give Gonzales the authority to approve "fast-track" procedures by states in death penalty cases, enabling them to carry out sentences more speedily and with fewer opportunities for appeal if those states provide adequate representation for capital defendants."

There are a lot of things wrong with these new rules. For example, as cited in the article, they do not provide enough oversight to ensure that defendants are receiving adequate legal counsel. They "allow states to ... claim they have a capital representation case that is functional, when in fact it might not be functional at all" and "It may not prevent people from being wrongfully sentenced to death."

The article also contends that "the underlying legislation is faulty because it allows Gonzales, who is the nation's chief prosecutor, to effectively determine the pace of executions."

And there are more reasons to believe that Gonzales is the wrong person to do this. (Click here to read about Gonzales's horrific track record on death penalty cases in Texas.)

It is obvious that these new rules will make it easier for innocent people to be executed. And even one wrongful execution is too many.

How would Gonzales feel if one of his family own members were on death row, wrongfully accused of a crime that he or she did not commit? Does he believe that it could never happen? Or would that be somehow different?

-----
Author's Website: http://www.maryshawonline.com

Authors Bio: Mary Shaw is a Philadelphia-based writer and activist. She is a former Philadelphia Area Coordinator for the Nobel-Prize-winning human rights group Amnesty International, and her views on politics, human rights, and social justice issues have appeared in numerous online forums and in newspapers and magazines worldwide. Note that the ideas expressed here are the author's own, and do not necessarily reflect the opinions of Amnesty or any other organization with which she may be associated. E-mail: mary@maryshawonline.com

Guest Shot: Innocents in Prison

Atlantic Unbound August 7, 2007
Legal Affairs by Stuart Taylor Jr.

Innocents in Prison

Many thousands of wrongly convicted people are rotting in prisons and jails around the country.

As recently as 20 years ago, it was extraordinarily rare for a convicted prisoner to establish his or her innocence conclusively enough to get public attention. That changed with breakthroughs in DNA science.

The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners­including 15 who had been sentenced to death­have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey's and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

The kind of DNA evidence that can conclusively prove innocence or guilt is available only in a small fraction of cases, mainly rapes and rape-murders in which sperm is recovered. But these cases are the tip of the iceberg. Extrapolation from DNA and other exonerations suggests that the overall error rate in violent-crime prosecutions is probably much higher than the estimates of less than 1 percent offered by many criminal-justice officials.

In a stunning non-DNA case that shows how low law enforcement can go, a federal District judge in Boston ordered the government on July 26 to pay $102 million in damages to victims of the FBI's "outrageous" role in framing four men for a 1965 gangland murder. The four spent a combined total of 109 years in prison. Two died there.

"FBI officials up the line allowed their employees to break laws, violate rules, and ruin lives," wrote the judge, Nancy Gertner. She found that the FBI had known all along that a mob hit man named Joseph Barboza was lying when he claimed he saw the four men kill a mobster named Edward Deegan. Barboza and the FBI protected the real killer, Vincent Flemmi, because Barboza and Flemmi were FBI informants.

Although that was decades ago, the FBI (like most police agencies) still insists on a policy­ of virtual prohibition of tape-recording interviews­that allows agents to conceal or distort what suspects and witnesses say. The usual motive is not to frame innocent people but to fit evidence to preconceived (and often mistaken) theories of the case.

The FBI has defended its policy on the grounds that taping might deter suspects from talking and that jurors might be offended to hear police using lawful but deceptive interrogation tricks such as lying to suspects and feigning sympathy. But the first concern seems far-fetched in most cases and the second is illegitimate. Refusing to tape interviews hides important evidence from juries as well as lending itself to abuse.

Police and/or prosecutorial misconduct appears to figure in more than half of the 205 convictions that DNA has proven false. Specific reasons for those convictions are catalogued in "Judging Innocence," a study by Brandon Garrett, a law professor at the University of Virginia, slated for publication in January in the Columbia Law Review. Mistaken eyewitness identifications­often due to police subtly pointing witnesses toward the people the cops suspect­figured in 79 percent of these false convictions. Flawed or corrupt testimony by scientific "experts" (about hair, blood types, and the like) figured in 55 percent. False confessions, mostly by juvenile defendants, figured in 16 percent.

What percentage of the 2.2 million men and women locked up in state and federal prisons and local jails are actually innocent of the charged crimes? This is not knowable with any confidence. But we can extrapolate from a few data points.

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes. And an unknown number of innocents have not been exonerated.

Does this suggest that we may have 50,000 innocent prisoners (2.3 percent times 2.2 million) in this country? Possibly, but not necessarily. Gross and Barbara O'Brien of Michigan State Law School stress in another forthcoming article that capital cases (and the DNA exonerations) are not representative of false convictions in general.

On the one hand, for example, the percentage of actual innocents may be higher among capital murder defendants­virtually all of whom go to trial­than among the 90 percent of violent-crime defendants whose cases end in plea bargains.

On the other hand, a much higher percentage of, say, robbery convictions than of capital murder convictions are based on unreliable eyewitness identifications. So perhaps the robbery error rate is much higher than 2.3 percent. And it's clear that most people wrongly convicted of lesser crimes are far less likely to win exoneration than are death-row inmates (who get much better post-conviction legal representation) and rape convicts (when DNA evidence is available).

Gross and others have also found that a very disproportionate number of exonerated prisoners are black or Hispanic. Discrimination no doubt accounts for some of this. So does the especially high error rate in cross-racial identifications, which creates special risks for black men wrongly accused of raping or robbing white people.

But well-off white men are not exempt from wrongful prosecution. This was spectacularly illustrated by the fabricated rape charges against three innocent Duke lacrosse players. Durham District Attorney Mike Nifong falsely demonized them as rapists, racists, and "hooligans," thereby gaining enough black votes to win what had been an uphill election battle. Nifong (who is white) also rigged a photo-identification process to frame the three for a nonexistent crime, hid DNA proof of innocence, and lied to the public and the court for many months before North Carolina Attorney General Roy Cooper took over the case and declared the defendants innocent.

Nifong has been disbarred and still faces a contempt-of-court charge. But his richly deserved fate is almost unheard-of. Most state bars and judges have given passes even to prosecutors who have hidden or falsified evidence to put innocent men and women on death row.

The DNA exonerations have spurred reforms by some states, but most still use shockingly unreliable police practices.

The good news, according to the Innocence Project, is that 42 states and the District of Columbia now require that inmates be given access to any DNA evidence; 22 (plus D.C. and the federal government) require preservation of DNA evidence; and 22 (plus D.C. and the federal government) compensate victims of false convictions.

But only three states (and some cities) have adopted the reforms to eyewitness procedures­such as excluding officers who know which person is the suspect, among other safeguards­that experts say are necessary to prevent false identifications. And only the District of Columbia, nine states, and some 500 localities keep police honest by requiring them to tape interrogations.

The courts, meanwhile, have "performed miserably in ferreting out the innocent" convicts, as Adam Liptak observed in a July 23 New York Times column. The Garrett study shows that the Supreme Court refused to hear the appeals of 30 of the first 200 prisoners who were later exonerated and rejected the one appeal it did hear.

The justices, and Congress, have also made it difficult for state prisoners to seek relief in lower federal courts. Most recently, on June 15 the conservative high court majority slammed the door on a murder convict because his lawyer had filed his appeal three days late­on the mistaken advice of a federal District judge. This decision seems perverse, especially in an era of DNA exonerations when, as a Justice Department commission observed in 1999, "the strong presumption that verdicts are correct, one of the underpinnings of restrictions on post-conviction relief, has been weakened."

Indeed, so formidable are the procedural obstacles facing falsely convicted innocents that only 10 percent of the 205 DNA exonorees made their innocence the basis of their initial appeals­and none was successful. This reflects the appeals courts' almost exclusive focus on whether the prosecutor or judge made procedural errors and almost complete deference to findings of guilt by juries and trial judges. They should defer less.

The URL for this page is http://www.theatlantic.com/doc/200708u/innocents-in-prison.

Guest Shot: Selective Prosecution

The following editorial was published in the New York Times on August 6, 2007.

Selective Prosecution

One part of the Justice Department mess that requires more scrutiny is the growing evidence that the department may have singled out people for criminal prosecution to help Republicans win elections. The House Judiciary Committee has begun investigating several cases that raise serious questions. The panel should determine what role politics played in all of them.

Putting political opponents in jail is the sort of thing that happens in third-world dictatorships. In the United States, prosecutions are supposed to be scrupulously nonpartisan. This principle appears to have broken down in Alberto Gonzales’s Justice Department — where lawyers were improperly hired for nonpolitical jobs based on party membership, and United States attorneys were apparently fired for political reasons.

Individual Democrats may be paying a personal price. Don Siegelman, a former Alabama governor, was the state’s most prominent Democrat and had a decent chance of retaking the governorship from the Republican incumbent. He was aggressively prosecuted by both the Birmingham and Montgomery United States attorney’s offices. Birmingham prosecutors dropped their case after a judge harshly questioned it. When the Montgomery office prosecuted, a jury acquitted Mr. Siegelman of 25 counts, but convicted him of 7, which appear to be disturbingly weak.

The prosecution may have been a political hit. A Republican lawyer, Dana Jill Simpson, has said in a sworn statement that she heard Bill Canary, a Republican operative and a Karl Rove protégé, say that his "girls" — his wife, the United States attorney in Montgomery, and Alice Martin, the United States attorney in Birmingham — would "take care" of Mr. Siegelman. Mr. Canary also said, according to Ms. Simpson, that Mr. Rove was involved.

Georgia Thompson is a Wisconsin state employee wrongly put in jail on corruption charges by the Milwaukee United States attorney. Despite strong evidence that she was innocent, Steven Biskupic prosecuted Ms. Thompson for corruption and got a conviction. The news hit shortly before a bitterly fought governor’s race, and opponents of James Doyle, the state’s Democratic governor, used the conviction to attack Mr. Doyle as corrupt. An appeals court later freed Ms. Thompson, but only after she had spent months in jail.

The committee has requested documents from the Justice Department about those two cases. It should also look into the investigation of Senator Robert Menendez by Christopher Christie, the United States attorney for New Jersey. Based on the facts that have come out, Mr. Menendez appears to have done nothing wrong. But word of the investigation leaked out in the fall of 2006, damaging Mr. Menendez’s reputation just when Republicans were trying to defeat him. It is unclear whose idea it was to conduct an investigation so close to the election of Mr. Menendez’s lease of a building he had sold years earlier.

The Bush administration is throwing roadblocks in Congress’s way. It missed a deadline for turning over documents, and it has refused to make some of the principal actors available to testify. The Judiciary Committee should not be deterred. If Americans are being put in jail for political reasons, Congress must put a stop to it.

Guest Shot: The Presence of Malice

This Op-Ed was originally published in the New York Times on August 2, 2007.

By RICHARD MORAN
South Hadley, Mass.

LAST week, Judge Nancy Gertner of the Federal District Court in Boston awarded more than $100 million to four men whom the F.B.I. framed for the 1965 murder of Edward Deegan, a local gangster. It was compensation for the 30 years the men spent behind bars while agents withheld evidence that would have cleared them and put the real killer — a valuable F.B.I. informant, by the name of Vincent Flemmi — in prison.

Most coverage of the story described it as a bizarre exception in the history of law enforcement. Unfortunately, this kind of behavior by those whose sworn duty it is to uphold the law is all too common. In state courts, where most death sentences are handed down, it occurs regularly.

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.

Mistakes are good-faith errors — like taking the wrong exit off the highway, or dialing the wrong telephone number. There is no malice behind them. However, when officers of the court conspire to convict a defendant of first-degree murder and send him to death row, they are doing much more than making an innocent mistake or error. They are breaking the law.

Perhaps this explains why, even when a manifestly innocent man is about to be executed, a prosecutor can be dead set against reopening an old case. Since so many wrongful convictions result from official malicious behavior, prosecutors, policemen, witnesses or even jurors and judges could themselves face jail time for breaking the law in obtaining an unlawful conviction.

Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

In the interest of fairness, it is important to note that those who are exonerated are not necessarily innocent of the crimes that sent them to death row. They have simply had their death sentences set aside because of errors that led to convictions, usually involving the intentional violation of their constitutional right to a fair and impartial trial. Very seldom does the court go the next step and actually declare them innocent.

In addition, some of these unlawful convictions resulted from criminal justice officials trying to do the right thing. (A police officer, say, plants evidence on a defendant he is convinced is guilty, fearing that the defendant will escape punishment otherwise.) In cases like these, officers or prosecutors have been known to “frame a guilty man.”

The malicious or even well-intentioned manipulation of murder cases by prosecutors and the police underscores why it’s important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is “conclusive scientific evidence” of guilt, as Mitt Romney, the presidential candidate and former governor of Massachusetts has proposed, we will still not eliminate the problem of wrongful convictions. The best trained and most honest forensic scientists can only examine the evidence presented to them; they cannot be expected to determine if that evidence has been planted, switched or withheld from the defense.

The cause of malicious unlawful convictions doesn’t rest solely in the imperfect workings of our criminal justice system — if it did we might be able to remedy most of it. A crucial part of the problem rests in the hearts and souls of those whose job it is to uphold the law. That’s why even the most careful strictures on death penalty cases could fail to prevent the execution of innocent people — and why we would do well to be more vigilant and specific in articulating the causes for overturning an unlawful conviction.

Richard Moran is a professor of sociology and criminology at Mount Holyoke College.

Must-See TV: Dateline NBC To Broadcast 2-Hour Documentary About Two Men Claiming Innocence, on Sunday, August 5th, 7p.m to 9 p.m. (EDT and PDT)

(New York) – July 26, 2007 – As a controversial retrial looms for David Lemus, a man who served 15 years in prison before having his murder conviction overturned in 2005, NBC News' Peacock Productions presents its first feature length documentary film about his case, "In the Shadow of Justice." The two-hour broadcast, airing on Sunday, Aug. 5 (7:00 p.m. ET), advances Dateline's groundbreaking 2005 investigative report on the 1990 murder of Palladium nightclub bouncer, Markus Peterson, and immerses viewers in a case that made headlines as it unfolded.

While The Manhattan District Attorney's office insists Lemus is guilty of the murder, and is retrying him, they declined to comment on the film. However, the 23-year veteran Assistant District Attorney Daniel Bibb who argued at a hearing to keep Lemus and Olmedo Hidalgo (the other man convicted in the murder) in prison is now speaking out for the first time in the film. He says as he led a re-investigation of the case, he became convinced the men were innocent. He has since left the DA's office, saying he was tortured by the fact that his superiors, in his account, forced him to argue to keep two innocent men in prison.

Bibb says, "The people making the decisions (within the DA's office) wanted to go to the hearing." When pressed specifically about District Attorney Morganthau's involvement in the decision-making process, Bibb replies, "…He was aware of what was going on."

NBC's interest in the case began in 2002 when Dateline producers were granted rare access to Bronx homicide detectives Bobby Addolorato and John Schwartz as they re-investigated the case. Our cameras were rolling as the detectives discovered astonishing new evidence suggesting that Lemus and Hidalgo might actually be innocent. The detectives also believe they uncovered documents that suggest the DA's office buried evidence that proved Lemus and Hidalgo were innocent.

After the Dateline report aired, not only were the two men exonerated and able to go home to live with their families for the first time in 15 years, but weeks later a man who many believed to be the real shooter was arrested. The man, Thomas "Spanky" Morales, had appeared in the broadcast after NBC producers tracked him down. "Spanky," who spent nearly 18 months in jail awaiting trial for this murder, is now a free man after a judge threw out his case saying law enforcement had the obligation to arrest him years ago based on the ample evidence it possessed pointing to him as the shooter.

In the end, "In the Shadow of Justice" documents how the case changed many lives forever. For detectives Addolorato and Schwartz, it was a journey of conscience and confrontation that they say ended their careers. The film includes exclusive interviews with defendants Lemus and Hildago, eyewitnesses to the crime, family members, attorneys, the foreperson of the jury, Carol Kramer, who voted to convict the men and then asked for their release, and Thomas "Spanky" Morales.

David Corvo is the executive producer; Adam Gorfain is the senior producer; Daniel Slepian is the producer; Michael Nardi is the field producer; and Robert O. Allen is the editor.

Guest Shot: DNA Tests Alone will not Protect the Innocent

The following editorial was originally published in the Newark, NJ Star-Ledger.

by John Holdridge

DNA testing has produced its 205th exoneration nationwide of an innocent prisoner, a number that includes 15 inmates imprisoned on death row. The "lucky" prisoner is Byron Halsey, who was proven innocent by DNA after allegedly confessing to the sexual assault and murders of two young children in Plainfield, narrowly avoiding the death penalty and spending some 20 years in state prison for crimes he did not commit. Halsey is the fifth New Jersey prisoner exonerated through DNA.

But while we all breathe a sigh of relief when we hear that an innocent person has been prevented from spending one more unjust day behind bars, it is critical to remember that DNA evidence is available in only a small percentage of criminal cases. It is a serious mistake to believe that DNA testing is adequate protection for the wrongly accused or convicted, including those sentenced to die.

The 205 exonerations throughout the country reveal serious and widespread problems with our nation's criminal justice system. The Innocence Project, the group primarily responsible for the exonerations, has discovered in its cases abysmal legal representation, including overburdened and underfunded defense attorneys; faulty eyewitness identification, the greatest cause of wrongful convictions, playing a role in more than 75 percent of convictions overturned through DNA testing; bogus "scientific" forensic identification, including hair analysis, bite mark evidence, ballistics, blood typing and others; prosecutorial misconduct, including failing to disclose exculpatory evidence to the defense; lying informants and jailhouse snitches, who were involved in more than 15 percent of the DNA exoneration cases, and false confessions.

These deficiencies exist in equal percentages in all criminal cases. They are not any more prevalent in cases with DNA evidence than without. Yet in the vast majority of criminal cases, there is no DNA evidence to test and possibly exonerate innocent prisoners. The best estimate is that DNA evidence exists in only 10 to 15 percent of all murder cases.

The high number of wrongly convicted prisoners exonerated by DNA testing is just the tip of the iceberg of innocent lives being spent behind bars and even sent to death chambers. These stories must serve as a stark reminder of additional measures we must take to increase the accuracy of our criminal justice system across the nation. To name just some of the most important, it is critical that we:

Improve the poor quality of legal representation received by criminal defendants, including by reducing the caseloads of public defenders and providing them with sufficient resources.

Insist upon fair eyewitness identification procedures to reduce the number of misidentifications. In 2001, New Jersey became the first state to require fairer eyewitness identification procedures. It is now one of only three states to do so, having been joined by North Carolina and Wisconsin.

Have courts require that all "scientific" evidence introduced at a trial meet the demanding requirements of true science.

Severely sanction prosecutors who engage in misconduct. The disbarment of Durham, N.C., prosecutor Mike Nifong because he failed to disclose exculpatory evidence to the wealthy, white Duke lacrosse players was a notable - and exceedingly rare - example of such sanctioning.

Either bar the testimony of jailhouse snitches, particularly those who are granted "favors" in exchange for the testimony, or instruct jurors to view such testimony with great caution.

Require that confessions be recorded and allow defendants to present to their juries testimony by experts in false confessions. The New Jersey Supreme Court has ordered that interrogations be recorded in all homicide cases beginning in 2006 - too late for Halsey and virtually all other prisoners incarcerated in the state. New Jersey is one of only seven states that require recordings of interrogations.

DNA testing alone does not - and cannot - protect the innocent. Our criminal justice system is in serious need of repair. We are morally obliged to apply the lessons learned from DNA and repair the system.

Gues Shot: Tunnel Vision

The following editorial was originally published in the New York Times on July 15, 2007.

Everyone knew Jeffrey Deskovic was guilty.
Everyone was wrong, but that did not prevent his being convicted in 1990 for the murder of a 15-year-old classmate, and his being wrongfully imprisoned for the next 16 years.

A report released this month by the Westchester district attorney, Janet DiFiore, details the tragic pileup of mistakes, carelessness, incompetence and ''tunnel vision'' that robbed Mr. Deskovic, now 33, of half his life. A reading of the report, available at http://www.da.westchester.ny.us/, gives a chilling view of the horrible and multiple ways the justice system can malfunction.

It prompts respect for the Innocence Project, which fought for Mr. Deskovic's freedom, and admiration for Ms. DiFiore, who undid the wrongs of two predecessors with her willingness to examine the DNA evidence that exonerated Mr. Deskovic. Ms. DiFiore also deserves much credit for commissioning the report, prepared by two retired judges, a former prosecutor and a legal aid lawyer, whose analysis of this case is vividly clear and deeply unsettling.

The report could be a primer for the Legislature, which should seriously consider the recommendations when it reconvenes this month.

The list of misdeeds is long, but one common thread is what the report called ''tunnel vision,'' the narrowing of outlook that sealed Mr. Deskovic's fate once the powers that be, from the police to prosecutors, became convinced that he was guilty.

Perhaps the most distressing part of Mr. Deskovic's long battle for vindication was his repeated inability to persuade prosecutors to compare DNA from the crime scene with samples in state and federal databases.

The judge in the case praised Ms. DiFiore's office for its open-mindedness in granting Mr. Deskovic's simple request to honor what should be a defendant's basic right. The other central recommendations in the report include a requirement to videotape interrogations and the creation of a state ''commission of inquiry'' to examine the errors and misdeeds that lead to wrongful convictions, and to recommend steps to prevent them.

The mandatory videotaping of interrogations is a matter of particular importance. Mr. Deskovic was an emotionally vulnerable and confused suspect, a teenager at that, and under heavy pressure he falsely confessed to the crime. Taped interrogations would help to improve questioning tactics -- beyond discouraging outright abuses by overaggressive police officers -- and help jurors to identify false confessions.

There is one more recommendation for action that is implicit in the report. It would not come from Albany, but from the host of individuals -- from detectives to Ms. DiFiore's immediate predecessors -- who were active participants in a gross miscarriage of justice.

The report recounts the moment last November when Westchester's first deputy district attorney told the court that the case was being dropped because Mr. Deskovic was ''actually innocent.'' The prosecutor went on to offer ''the most sincere apologies we can muster on behalf of the Westchester County District Attorney's Office and the Peekskill police.''

The report said that Mr. Deskovic expressed appreciation for the gesture. It also said it was the first public apology he had received.

Guest Shot: Despite conviction, DNA retest apt in elderly woman's murder

by Elmer Smith
Originally published in the Philadelphia Daily News on July10, 2007

IN THE US VS. THEM world of prosecutors and perpetrators, we have a rooting interest in seeing the full weight of the law slam down on the perps.

I get that. I also understand how going after someone as depraved as the killer of Louise Talley becomes more of an obsession than an objective. That is precisely the mindset I want the district attorney's office to march into battle with.

Talley, a 77-year-old Nicetown woman, was raped and stabbed to death in her bedroom in 1991. Anthony Wright, then 22 and an admitted drug addict, signed a statement confessing that he was the killer. A jury, noting the confession and the testimony of witnesses who placed him near the scene of the crime, convicted him of first-degree murder 14 years ago.

But the D.A.'s open-and-shut case is threatening to come open again. Wright, represented by the Innocence Project, is scheduled to be in Superior Court today seeking DNA testing of blood and semen stains recovered at the time of his arrest. DNA tests 16 years ago proved inconclusive.

The D.A.'s office is vigorously opposing new DNA testing. I want to believe it is fighting to keep DNA evidence out in the interest of justice.

Except that, for the life of me, I can't see how justice is served by suppressing a test result that could point to another perpetrator.

If Louise Talley's murderer is still out there, I want my D.A.'s office to go after him with the same fervor that led to Anthony Wright's conviction.

Instead, the D.A.'s office seems more interested in holding onto Wright than it is in being absolutely sure the crime is solved. That worries me.

The D.A.'s brief bases its opposition on procedural points that may make sense in the arcane proceedings of a courtroom. But they seem disconnected from the essential question of guilt and innocence.

Their key point is that since Wright's confession was ruled valid after he tried to rescind it at trial, "he is barred from asserting his innocence."

But the Innocence Project has proved the actual innocence of more than 50 defendants who had signed confessions to the crimes they were falsely convicted of, three of them in Pennsylvania alone.

The D.A.'s office acknowledges this. "There is no doubt that innocent voluntary confessors, while they are rare, are no exception to the truism that anything is possible," the D.A. concedes in the brief.

But the D.A. goes on to argue that the "law of case doctrine" bars Wright from "asserting innocence" once a judge has ruled that the confession was valid.

In an even-less-principled argument, the D.A. asserts that the DNA request was not filed in "a timely manner." Therefore, the D.A. concludes, "there is no reason for the court to address the merits."

But the Pennsylvania law, which allows for post-conviction DNA testing, sets no time limits. Besides, I never want to hear the D.A. argue against having a court "address the merits" of any case.

The D.A. argues that the trial record contains "overwhelming evidence of guilt." I agree.

The signed confession and the fact that Wright was implicated by people who had nothing to gain by fingering him, as well as by co-conspirators who may have been out to cut the best deal for themselves, seem to make an airtight case against Wright.

But I would have thought that about Nicholas Yarris, Bruce Godschalk and Barry Laughman. All were convicted in "open and shut" cases. Yarris, who signed a confession, was convicted and sentenced to die.

In all three of those cases and 200 others in which the Innocence Project has fought for and won DNA tests, the testing proved they weren't the murderers.

Even more important, DNA tests in half those cases also identified the actual perpetrators, several of whom have been convicted on the same DNA evidence.

If new testing proves that we got the right man, then DNA will have done its job. If it proves that someone else murdered Louise Talley, we need to know who that is and how we can convict him.

That's really where our rooting interest lies.

Send e-mail to smithel@phillynews.com or call 215-854-2512. For recent columns: http://go.philly.com/smith

Guest Shot: Doing time for no crime

by Arthur Carmona
Originally published in the Los Angeles Times on July 13, 2007

A young man freed after being wrongly imprisoned argues for three remedies.

ONE WEEK after my 16th birthday, I was arrested and charged with crimes I did not commit. I remained behind bars in a life unsuitable for any innocent person. After I served nearly three years of a 17-year sentence, the real facts of my case began to emerge and a judge let me go free. My life, however, will never be the same, and I am determined to change the laws that make it so easy for innocent people to be convicted.

On Feb. 12, 1998, I decided to visit a friend. While I was walking down a residential street, a Costa Mesa police officer stopped me at gunpoint. I was handcuffed and surrounded by other police officers with guns drawn. One officer forced a baseball cap onto my head and made me stand on the curb. I did not know it at the time, but witnesses from a robbery had been brought to identify me in what is known as an "in-field show-up," a procedure that is highly likely to produce mistaken identifications. I was arrested in connection with 13 strong-arm robberies.

My mother was able to gather evidence proving that her 15-year-old son was in school during 11 of the robberies. But we had no evidence to prove that, at 2 a.m. on a school night, I was home asleep while someone robbed a Denny's restaurant, and we had no proof that I was home baby-sitting my 11-year-old sister during the time a juice bar in another city was being robbed.

The getaway driver, a parolee with a long criminal record, admitted being involved in the robberies. He first told police he did not know me and that I was not involved. Then the Orange County district attorney offered him a sentence of two years if he would say I was. He took the plea bargain and his story changed; he was freed from prison before I was.

The court found me guilty of two strong-arm robberies, and I was facing 35 years for crimes I took no part in. The judge sentenced me to 12 years in state prison. I was 16, with no criminal record. I would have been eligible for parole in nine years, with two strikes to my name, one strike away from a life term.

Two and a half years later, just before my hearing on getting a new trial based on a writ of habeas corpus, the Orange County district attorney offered me a deal, and after three years of suffering beatings, threats and degradation in a series of juvenile and state prisons, I accepted it. I signed a "stipulation" — a piece of paper stating that I would not sue any city, county or state prosecutors. Orange County Superior Court Judge Everett Dickey ordered me released and my felonies vacated.

Although I could finally go home, I could not go back to my old life. While I was behind bars, my high school class graduated without me. I was no longer the fun-loving teenager I once was. The criminal justice system took my innocence from me. I have not received any compensation, or even an apology. And the two felonies remain on my record, despite the judge's order and the intervention last year of then-Atty. Gen. Bill Lockyer.

Now, I am fighting to prevent wrongful convictions and to help innocent people still in prison. I am also supporting a series of state bills that would make it harder for what happened to me to happen to other people. I have traveled to Sacramento in the last two years to urge the Legislature to pass legislation that would help prevent wrongful convictions. Two of these bills passed last year, only to be vetoed by the governor. This year, three bills are being considered.

Senate Bill 756, sponsored by Mark Ridley-Thomas (D-Los Angeles), would require the state Department of Justice to develop new guidelines for eyewitness identification procedures. For example, guidelines in other states limit the use of in-field show-ups like the one that led to my wrongful conviction.

Senate Bill 511, sponsored by Elaine Alquist (D-Santa Clara), would require recording of the entire interrogation, including the Miranda warning, in cases of violent felonies. Electronic recording of interrogations would not only help end false confessions but also discourage police detectives from lying during interrogations — as they did in my case by claiming to have videotaped evidence of me.

Senate Bill 609, sponsored by Majority Leader Gloria Romero (D-Los Angeles), would prevent convictions based on uncorroborated testimony by jailhouse snitches.

The Legislature should pass all three bills, and the governor should sign them. These reforms are urgently needed to prevent wrongful and unjust incarcerations.

Prison is no place for an innocent man, let alone an innocent kid.

Guest Shot: 'Fallible' legal system must avoid injustice

By WILLIAM S. SESSIONS
Originally published in the Atlanta Journal Constitution on: 07/11/07

The release of 124 death row inmates in the United States has made clear that the administration of the death penalty is not infallible. When there are important questions about whether someone facing execution is actually guilty, those questions must be examined and resolved by the courts or, as a last resort, by the executive branch.

Troy Anthony Davis has been on death row in Georgia for more than 15 years for the murder of a police officer, and related violent crimes. I was the director of the FBI under Presidents Reagan, Bush and Clinton, and I believe that there is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders.

That being said, we must be convinced that the right person has been convicted. Serious questions have been raised about Davis' guilt. The murder weapon was never found, and other important physical evidence was missing. Key witnesses made inconsistent statements, and seven out of the nine non-police witnesses have now recanted or changed their original testimony, some stating that they had been pressured by the police to implicate Davis. One of the two witnesses who has not recanted his testimony has now been implicated as the real murderer by two witnesses at trial and four new witnesses. In addition, concerns have been raised about the conduct of the police and prosecutors.

Finally, it appears that the quality of legal representation Davis received during trial was, by his own lawyer's account, seriously deficient. While Davis' case proceeded through the courts, the budget of the Georgia Resource Center, which represented him, was dramatically cut. A lawyer from the Resource Center stated in an affidavit that "We were simply trying to avert total disaster rather than provide any kind of active or effective representation."

The courts considering Davis' case properly administered procedural rules that prevent those courts from considering claims that were not raised at the right time or in the right manner. However, these rules can be too restrictive and can prevent the courts from dispensing justice. They can stop the courts from hearing even claims of innocence, such as in Davis' case. They can prevent the courts from hearing these claims even if the reason they were not properly raised was because of an overburdened lawyer with insufficient resources, such as in Davis' case. As a result of these procedural obstacles, no court has examined the claims Davis' current legal team has raised.

I am a member of the Constitution Project's bipartisan Death Penalty Committee, which includes supporters of the death penalty, like me, as well as opponents. We condemned the kinds of procedural barriers that prevented the courts from addressing the merits of Davis' case, and we recommended that they be eliminated. Second, we insisted that capital defendants have competent lawyers with adequate resources.

Former Chief Justice William Rehnquist once wrote that the judicial system, "like the human beings who administer it, is fallible." I agree. Especially when it comes to a human life, the courts should always be able to examine claims of innocence.

But the matter is no longer before the courts, since the U.S. Supreme Court recently decided not to hear Davis' case.

It would be intolerable to execute an innocent man. It would be equally intolerable to execute a man without his claims of innocence ever being considered by the courts or by the executive.

Georgia's Board of Pardons and Paroles can consider the issues raised by Davis. I urge that body to immediately do so and to grant clemency.

In memory of Evan Zimmerman

by Mike “Pie” Piaskowski – Green Bay, WI

Yesterday I received the sad news that a fellow Wisconsin exoneree and good friend of mine by the name of Evan Zimmerman passed away of cancer. He was only 61.

Evan was incarcerated for more than three years after being convicted of first-degree intentional homicide in the strangulation death of his ex-lady friend in 2001. Kathy Thompson, 38, had been found dead in February 2000 in Eau Claire, WI. Ev, a former police officer himself, was arrested about a year later and was eventually convicted of the unsolved murder.

With the help of the Wisconsin Innocence Project, Ev successfully appealed on the grounds of ineffective assistance of counsel and won the right to a retrial. In 2005 the judge ruled that certain unreliable testimony could not be used at the new trial. Without the tainted evidence and nothing else to rely on the DA dropped all charges. Ev steadfastly denied any involvement in her death – maintaining his innocence from the very beginning.

After his release from prison Ev was forced to move from Eau Claire to LaCrosse, WI after bringing a wrongful-conviction lawsuit against the Eau Claire police department. Sadly, in 2006 the federal court dismissed the suit.

In 2005 the A&E channel put together a documentary about Evan’s case by the name of "Facing Life - The Retrial of Evan Zimmerman". It was aired in April 2006.

Ev was a wonderful person and will be missed by many. Let us pray that we can all work together, in Evan's name, as well as all of the exonerees throughout the country, to help eliminate these and all other forms of injustice created by our justice system.

Guest Shot: Adam Liptak on Prosecutorial Misconduct

Prosecutor Becomes Prosecuted

From
http://www.nytimes.com/2007/06/24/weekinreview/24liptak.html?_r=1&oref=slogin

The misconduct that cost the prosecutor in the Duke lacrosse case his career certainly seemed to call for a severe penalty: he withheld evidence from the defense, misled the court and inflamed the public.

Yet other prosecutors found by the courts to have done similar things have almost never lost their jobs or their licenses to practice law. Even in the aftermath of prosecutorial wrongdoing that helped put innocent men on death row, discipline has been light or nonexistent.

What makes Michael B. Nifong different?

The answer, it appears, is that he got a taste of something like his own medicine, a trial in the court of public opinion.

“The very same facts that made this case attractive to a prosecutor up for election and a huge publicity magnet — race, sex, class, lacrosse stars, a prominent university — also led to his undoing when the case collapsed and his conduct was scrutinized in and beyond North Carolina,” said Stephen M. Gillers, a law professor at New York University and the author of “Regulation of Lawyers: Problems of Law and Ethics.”

“If the same case had involved three poor men, instead of defendants with private counsel and families that supported them financially and publicly,” Mr. Gillers continued, “we would not likely see a disbarment, in North Carolina or anywhere. I’d be surprised if there were even serious discipline.”

There is widespread agreement that sanctions for prosecutorial misconduct are quite unusual, but heated dispute about why.

Prosecutors say they seldom face discipline because conduct like Mr. Nifong’s in this sexual-assault case is exceptional.

“Nifong’s case is rarer than human rabies, which is one reason it is such huge news,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. “The defense bar is piling on and trying to claim this is typical behavior.”

But the defense bar is not alone. Law professors who study professional discipline of prosecutors have also noted that misconduct like Mr. Nifong’s is often unpunished.

“A prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by the courts, and almost never by disciplinary bodies,” Bennett L. Gershman wrote in his treatise, “Prosecutorial Misconduct.”

Mr. Gershman, a former prosecutor in Manhattan who teaches law at Pace University, said the Nifong case was handled differently because of the publicity. “The fact that it resulted in national exposure,” he said, “had to have put the disciplinary body and the entire system of justice under the spotlight.”

“You have rogue prosecutors all over the country who have engaged in far, far more egregious misconduct, and in a pattern of cases,” he added. “And nothing happens.”

The Chicago Tribune, for instance, analyzed 381 murder cases in which the defendant received a new trial because of prosecutorial misconduct. None of the prosecutors were convicted of a crime or disbarred.

There have been about 120 death-row exonerations since the Supreme Court reinstituted the death penalty in 1976, said Samuel R. Gross, a law professor at the University of Michigan. (Prosecutors say the number is much smaller.)

“I don’t know of a single case of discipline against a prosecutor who engaged in misconduct that produced the wrongful conviction and death sentence, and many of the cases involve serious misconduct,” Mr. Gross said.

Indeed, the North Carolina disciplinary commission that disbarred Mr. Nifong faced criticism for its handling of two recent cases involving charges of misconduct in death-penalty cases.

In one, Alan Gell was sentenced to death after prosecutors withheld witness statements from the defense. The witnesses said they had seen the victim alive after Mr. Gell had been jailed on other charges and was physically unable to have committed the murder. Mr. Gell was acquitted at a retrial.

Two prosecutors received a reprimand.

Last year, the commission dismissed charges, largely on statute of limitations grounds, against two prosecutors accused of withholding evidence in the 1996 capital trial of Jonathan Gregory Hoffman. Mr. Hoffman has been granted a retrial.

The chairman of the disciplinary commission, F. Lane Williamson, discussed those cases as he ordered Mr. Nifong’s disbarment last Saturday. “In those two cases, the situation was very different, although you could look at it and say the harm that was caused by the conduct was greater,” Mr. Williamson said. “In both of those cases someone was actually wrongfully convicted of a capital crime.”

But the earlier cases differed from the case against Mr. Nifong, Mr. Williamson said, because neither one involved allegations of intentional wrongdoing.
That point is important, prosecutors say. What courts label prosecutorial misconduct is often the product of carelessness or oversight rather than an intent to pervert the justice system by convicting the innocent.

Mr. Nifong’s admission of wrongdoing certainly helped propel the case against him.

“It is very hard to get discipline against a prosecutor to stick,” said Rory Little, who teaches at the Hastings College of the Law in San Francisco and serves on an American Bar Association task force on prosecutorial ethics. “The main reason is that it’s just too mushy to decide intent.”

"Nifonging"

Vidkun Quisling was a fascist politician in Norway during World War II. He invited Hitler to invade and occupy the country, then proclaimed himself the new head of Norway’s government and ordered Norwegian troops to lay down their arms. His name–Quisling–has come to mean traitor.

Mike Nifong was the DA in Durham County, North Carolina. He won a close election and drew significant public attention to himself by prosecuting four Duke University lacrosse players–in the media–for allegedly raping a stripper who danced at a private party at the home of another player. The North Carolina State Bar charged him, first, with “conduct involving dishonesty, fraud, deceit, or misrepresentation” for his handling of the case. Then a second charge was issued, “systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice” when it was learned Nifong withheld DNA results that cleared all four lacrosse players from their defense attorneys. Even after he was disbarred, Nifong tried to hold onto his office for another month. He had to be removed by judicial order and escorted out by the sheriff.

His name–Nifong–has come to mean a prosecutor who systematically abuses his office to obtain convictions and garner self-promoting publicity. When someone says a defendant was “Nifonged” into prison, we now have a frame of reference for the type of prosecutorial misconduct involved.

Prosecutors are supposed to play fair for both sides. State bar rules across the country are clear that a prosecutor has the responsibility of a minister of justice and not simply that of an advocate. In plain English, a defense lawyer may win with the acquittal of a client. A prosecutor, however, wins with a just outcome, which includes a ruling of innocence. That’s the ideal. It is not the reality.

The same media that hung on Nifong’s every word, painted him as the hero and the Duke lacrosse players as “hooligans,” now assures us that the Durham DA is an aberration. Wrong. The only aberration was the North Carolina State Bar, which charged, tried and disbarred him. The usual response from lawyer discipline panels is to ignore the behavior and dismiss complaints to cover the backsides of their colleagues.

A Duke University law professor, James Coleman, told The Herald-Sun of Durham: "Everybody wants to say that Mike Nifong is some kind of a rogue prosecutor, but in fact, what he did is not that different from what other prosecutors do on a regular basis in cases out of the spotlight.”

If you doubt that, take a look at news reports linked to Police/Prosecutor Misconduct. And why do so many prosecutors kick justice to the curb in pursuit of convictions and publicity? With a handful of rare exceptions, they are rewarded with higher offices. They warm the bench as judges. They get elected to state and federal offices. And while they almost certainly recognize the same unethical and illegal behaviors among the prosecutors who follow them, they aren’t going to throw any stones. Instead, they condone and perpetuate it.

Mike Nifong may have done justice a favor after all, however. He raised the curtain and showed us what goes on in too many prosecutors’ offices across the country. Now everyone knows. And as Professor Coleman said, “What's important now is that they not tolerate it."

Guest Shot: Weeding Out the Innocents

(This Op Ed article originally appeared in the June 11, 2007 edition of the Los Angeles Times.

Weeding out the innocents
Just because a vast majority of prisoners were rightly convicted doesn't mean we shouldn't look for those who weren't.

By Samuel R. Gross
June 11, 2007

THE FIRST innocent American defendant to be exonerated by DNA evidence was Gary Dotson of Chicago. Before his conviction was overturned on Aug. 14, 1989, he'd spent 10 years in prison and on parole. This year, on April 23, Jerry Miller obtained the 200th DNA exoneration, also in Chicago. He had served 25 years for a rape he did not commit.

Two hundred innocent prisoners exonerated by DNA — plus more than 200 other exonerations that did not involve DNA. That sounds like a lot. But over 18 years in a criminal justice system that sends hundreds of thousands to prison each year? How frequent are wrongful convictions?

The truth is, we don't know. But that hasn't stopped prominent members of the legal profession from staking out a position.

More than a year ago, prominent Oregon prosecutor Joshua Marquis, commenting on my research on exonerations, wrote in the New York Times that the rate of erroneous convictions could be no higher than .027%. Last June, Justice Antonin Scalia endorsed that calculation in a concurring opinion in a Supreme Court case. This April, after the 200th exoneration, Colorado District Judge Morris B. Hoffman wrote in the Wall Street Journal that false convictions occur in fewer than .065% of criminal cases. Whatever the number, the message is the same: Not to worry, we get it right more than 99.9% of the time.

These reassuring words are nonsense.

Here's how Hoffman and Marquis arrive at their numbers. Start with the number of known, proven exonerations (for Hoffman, the 200 DNA exonerations so far), then multiply that by 10 "to be safe" (Marquis' formula). Take that product, divide it by an estimate of the millions of all criminal convictions over time, and you end up with something less than one-tenth of 1%.

This makes no sense. Imagine that a car company gets reports that 65 of its 2007 sedans have faulty steering columns, which sometimes lock up. What if the company said: "That's no big deal. We have 10 million cars on the road, so that's less than one-thousandth of 1%."

But that's ridiculous. The total number of defects could be 10 or 100 or 1,000 or 10,000 times greater than the first batch that came to light. Unless we investigate systematically, we just don't know — not for steering columns and not for criminal convictions.

Further, the car company has divided by the number of all cars in service, when it should use the number of 2007 sedans only. Marquis and Hoffman make this mistake too. Hoffman, for example, divides the 200 DNA exonerations to date by his estimate of all criminal convictions — including check kiting, tax evasion and car theft. But DNA testing requires biological evidence; it has only been useful in a fraction of rape convictions and a scattering of murder cases (if the killer bled). Rape and murder account for fewer than 2% of felony convictions and a much smaller percentage of all convictions.

As it happens, we're just beginning to learn something real about the rate of false convictions. The Virginia Department of Forensic Science recently found a large group of closed rape files with untested DNA, which will make possible the first systematic study of false convictions. So far, tests on a small preliminary sample are troubling: two previously unknown wrongful convictions out of 29, or an error rate of 7%.

We can also learn from death sentences, which are reviewed much more carefully than other criminal convictions, so more errors are caught. Of the 3,795 defendants sentenced to death from 1973 through 1989, 86 were freed because of DNA or other new evidence of innocence. That's 2.3%. Of course, some of those freed may be guilty, while others still on death row are no doubt innocent. So last year, Michael Risinger, a professor at Seton Hall Law School, did a study of death row DNA exonerations only. His results? Among defendants sentenced to death between 1982 and 1989 for murders involving rape, at least 3.3% were innocent.

The good news is that the great majority of convicted defendants in the United States are guilty; the bad news is that a substantial number are not. Is an error rate of 2% or 3% or 5% high or low? That depends on your point of view and your purpose.

If 1% of commercial airliners crashed on takeoff, we'd shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.

Correcting false convictions is much harder than recalling automobiles, but we have to try. We'll never save the innocent defendants who are already in prison — or keep others from suffering their fate — if we just wish the problem away. --

SAMUEL R. GROSS is a law professor at the University of Michigan.

Sherrie Stone: My Father is on Death Row

To Whom It May Concern,

I have a Father on Death row In Alabama, Thomas D Arthur Z-427, (6D-11) N-11A. His last appeal to the Supreme Court was denied April 16, 2007 (You can find the writ filed 18295 Sullivan Arthur BrCv.qxd or try http://www.scotusblog.com/moveabletype/archives/06-954pdf ) The State of Alabama has moved to set the execution date. His attorney has filed one last civil motion to get the DNA evidence tested. He will more than likely be executed within a few months. There is a very strong possibility that he is innocent. He is being executed with out his FIRST Habeas Corpus review. Back in 2001 the Courts said he filed it late. At the time, he did not have an attorney. The State of Alabama does not guarantee death row inmates the right to attorney during the complicated appeal process. He did not even have stamps to mail it, if he had filed one. He did not have access to a law library. They say there is one at Holman, but is really a day room for death row inmates. There are required to request law books. Many experienced attorneys have stated that even if they had access to such law books, there would be hundreds of items to research, multiple law books, and filling such appeals require experienced attorneys with capital murder experience. He was within 7 hours of execution in April 2001, when the courts stayed the execution to review the fact he had no attorney.

However his claim of innocence and request for discovery was denied (DNA evidence that could prove his innocence) The courts said he had not proved his claim of innocence. Kinda of hard to do with out the evidence. Back in 1982 when the crime was committed, Thomas Arthur was on a work release program. It was for a murder that he had plead guilty to. He shot his common law wife’s sister and cousin in a drunken rage. He was looking for his son, the common law wife had left with. Even I had never forgiven him for that crime. However when he was released on the work release program, he had stopped drinking, committed his life to Christ and was speaking to high school kids to help them not make the mistakes he had made. He was a different person. Then he was arrested for the crime he is now on death row for. He always said he was innocent. The victim’s wife Judy Wicker, was also arrested and tried in the murder. Her original statement was my father had nothing to do with the murder. She also stated a black man raped her and killed her husband Troy Wicker. She was given a life sentence and even though there was no physical evidence, my father was also convicted. At the time of the crime, a rape kit was done, bloody clothes were taken, finger prints, hair, the bullet that killed Troy Wicker were among the many items collected. Back then DNA testing was not available. However the finger prints and hair samples did not match my fathers. All of this is in the Writ that was just denied by the Supreme Court.

My father got 2 re-trials because of errors made in the trials. The DNA evidence was never allowed to the defense. The appointed attorneys had no murder experience, especially capital murder experience. One of the appointed attorneys even sent my father a letter saying he was not qualified, or prepared to defend him. Most of the attorneys never communicated with him. Private investigators that offered to help my father were turned away by prison officials and not allowed to visit him. The 2nd trial Judy Wicker changed her story after 10 years in prison in exchange for freedom. Her defense attorney was the prosecutor that put her in prison to start with. He had become a defense attorney. There are 3 people who have admitted to assisting with the murder, Judy Wicker, Wickers sister, Teresa Rowland, and Teresa’s boyfriend at the time, Theron McKinney. All are free, 2 never charged with anything. Also Judy now said my father raped her and killed Troy Wicker. The rape kit results that were done when the crime occurred were never given to my fathers defense attorneys, to this day all the evidence that could be tested for DNA is being denied. The rape kit alone could show my fathers innocence and cast serious doubt on Judy Wicker’s statements.

I am giving you the short version. All of these facts are found in the Writ I provided a link for. The local papers and media in Florence Alabama have been writing about this case, but in a negative way. Everyone is screaming for the victims rights and why is it taking so long to kill my father. I say 25 years is a long time for someone to sit in prison for a crime they did not commit, and even worse to die for a crime they did not commit. I also say they are 2 sets of victim’s when a murder occurs, the family of the murdered, and the family of the convicted one. I have rights as well, and want closure. I want this evidence DNA tested. I want closure just like the family of the murdered. The State of Alabama has always gotten away with making their own rules and doing things that are just not right.

My letter to you is to bring this to your attention and possibly you can inform all the groups and organizations you work with. Perhaps bringing this to the public’s attention will help my father at least win his civil suit to obtain the DNA evidence. Any help will be greatly appreciated.

Sincerely,

Sherrie Stone

Guest Shot: Duke lacrosse team exoneration catalyst for change

by Mary Mitchell, Chicago Sun Times
[originally published at http://blogs.suntimes.com/cgi-bin/mt-tb.cgi/2838]

Despite the divisive nature of the Duke lacrosse rape case, some good can come of it.

The flawed case exposed the worst elements of the criminal justice system and showed how easily an innocent person can be railroaded into jail.

Most often, it is African Americans and other people of color who find themselves in this predicament. That has made it too easy for some of us to dismiss their complaints of being railroaded.

But the Duke defendants were young, white males from affluent families, battling a system that sometimes runs like a car without brakes.

"This entire experience has opened my eyes up to a tragic world of injustice I never knew existed," Reade Seligmann said at a news conference last week.

In denouncing the rape prosecution as a "rush to judgment," the attorney general in North Carolina dropped all charges against Seligmann, David Evans and Collin Finnerty.

"If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can't imagine what they'd do to people who do not have the resources to defend themselves," Seligmann said.

"So rather than relying on disparaging stereotypes and creating political and racial conflicts, all of us need to take a step back from this case and learn from it."

Why no DNA evidence? Still, the Duke defendants were luckier than most defendants who face similar situations.

Five years ago, I raised questions about the charges leveled against Carl Chatman, a homeless man accused of raping a woman in the Daley Center.

Why was there no DNA evidence to link Chatman to the crime? How did Chatman manage to slip into the Daley Center and sleep under a bench all night? Why did a traffic cop pick the indigent Chatman out on the street and take him back to the scene of the crime? And why would Chatman, who is mentally ill, dictate a detailed confession to a detective?

But two years later, a jury took a half hour to convict Chatman of raping the clerk in her office. He was sentenced to 30 years in prison.

"It was the fact that the victim was detailed in her description of what happened, and the defendant had a written, signed, nine-page statement with all the details," a juror told reporters after the conviction.

The woman and her husband have filed civil suits against Cook County, the Public Building Commission, Aargus Security Systems, the Cook County sheriff, ANR Janitorial Service, MB Beitler Management Corp. and Carl Chatman.

Apparently, those suits have led lawyers to do a little more digging.

Filed civil suits then, tooIt turns out that in 1979, the Daley Center victim was also raped early in the morning (7 a.m.) at another downtown office building -- allegedly in a washroom by a janitor.

The victim identified a Polish immigrant from a photograph as the man who raped her. Because the suspect spoke very little English, he was given an interpreter and was subsequently arrested.

The accused fled the country before going to trial. But he left a letter behind with his sister, telling her he had no idea what the charges were all about but that the accusation had ruined his life.

The Daley Center victim filed civil suits in that case as well, naming the owners of the office building, the maintenance service, security company and the alleged rapist.

As incredible as it may sound, the information about the first rape and resulting lawsuits was not brought up during Chatman's trial.

Lawyers representing Chatman are now attempting to get him a new trial based on ineffective representation.

"The evidence will show the injustice of this case," said Russell Ainsworth of Lovey & Lovey, lawyers who are representing Chatman in the civil case.

"You have a 50-year-old veteran who is homeless with mental illness who is taken advantage of by this alleged victim solely to make a dime off the taxpayers of Cook County," he said.

Because rape victims are given a shield of protection, I am not identifying the woman. But I did attempt to contact her attorney, Joe Powers.

Maybe it is just a tragic coincidence that this woman was raped twice under similar circumstances. But I'm concerned that Chatman was simply another example of a "rush to judgment" who did not have the means to defend himself.

Hopefully, the Duke lacrosse case has made more of us sensitive to the plight of people like Chatman.

Guest Shot: Georgia Thompson: Now comes the reckoning

by Bill Lueders, News Editor, the Isthmus, Madison, WI
April 6, 2007

As legal developments go, this one was a stunner, a moment worthy of "Perry Mason" -- you know, where the legendary TV lawyer would deftly get a witness on the stand to confess to the crime, vindicating the defendant.

After just 26 minutes of oral arguments, the 7th Circuit Court of Appeals threw out the conviction of Georgia Thompson, the former state Department of Administration official, on charges of fraud. Thompson, who steadfastly maintained her innocence, had been prosecuted by U.S. Attorney Steve Biskupic in a case seized on by his fellow Republicans to taint Gov. Jim Doyle. She had served four months of an 18-month sentence when the appeals court set her free.

That's right. It set her free. On the spot. No weeks of deliberation. No order that she merely be granted a new trial. The court deemed the evidence against Thompson so lacking -- "beyond thin," one member of the three-judge panel put it -- that it overturned her conviction and ordered her release.

The case against Thompson always seemed weak to the point of being suspicious. She was accused of steering a state contract toward a Doyle contributor. But there was no evidence she was pressured to do so, nor any suggestion that she benefitted personally from this act. And if she did in fact show favoritism toward the winning bidder, it may have been because it was a Wisconsin firm.

After the verdict, two jurors proclaimed their belief that higher-ranking state officials were involved -- an assertion for which there was never a shred of evidence.

These people were just aching for a chance to take a stand against corruption of the sort politicians are forever alleging that their opponents engage in. When Biskupic gave them that chance, they leapt at it.

As a result, Thompson's attorney, Steve Hurley, said in a statement, she lost her job, her life savings, her home, her liberty and her good name. At her sentencing, the government argued that Thompson deserved a stricter sentence because she did not accept responsibility.

"Today," said Hurley, "the government ought to accept responsibility for the consequences of its acts."

Good idea. There does indeed need to be a reckoning. At least two areas merit further review.

The first area is whether the charges against Thompson should have ever been filed. Obviously, the appeals court judges -- two of three of whom were appointed by Republican presidents -- felt the evidence did not support it.

Biskupic has been asked whether he intends to appeal. The more urgent question is whether the decision to prosecute Thompson was political from the start. This was always a valid question, given the zeal which Doyle rival Mark Green and his Republican allies sought to turn the case to their advantage.

But now this question has fresh impetus, given what we now know about the Bush administration's politicalization of U.S. attorneys. At least one of Biskupic's counterparts was pressured to engage in partisan prosecutions on timelines that suited electoral contests -- and fired when he declined. The integrity of Biskupic's prosecution ought to be called into serious question.

The second area that merits review concerns Gov. Doyle's shockingly self-serving and hypocritical comments in the wake of the appeals court's ruling. He angrily lashed out at the media for sensationalizing the case. He called Thompson's conviction "a terrible injustice," proclaiming her "an innocent woman who was imprisoned for more than four months just for doing her job." He said she had been used as "a political football."

Does Doyle really expect people to forget that, when it mattered, he was more than willing to throw Thompson to the wolves, rather than expend an ounce of political capital on her behalf? Indeed, he did everything in his power to distance himself from her.

"It is clear that Georgia Thompson acted on her own, and that no other state employee was involved," Doyle said following her conviction. "As I have stated before, I have zero tolerance for ethical lapses in government. When public servants abuse the public's trust, they forfeit their rights to continue in the state's employ."

That was Doyle when it mattered. He was completely comfortable letting a person he now deems obviously innocent go down in flames rather than lift a finger to help her.

Rest assured, if Doyle had said, back when it mattered, that he believed Thompson was being wrongfully prosecuted and had broken no laws, reporters would have found time in their busy schedules to report his views.

Doyle's effort to score political points from the court's ruling is nothing more than the latest attempt to use Georgia Thompson as a political football. And it's no less unseemly when the governor himself is doing the kicking.

Reposted from http://www.thedailypage.com/daily/article.php?article=6219

Rigging The Gold Standard

There used to be two evidentiary gold standards that assured conviction–eyewitness identification or a confession by the accused. It was even better if you had both. What juror could doubt a traumatized victim who pointed to the defendant and said, "That’s the person who did this to me. I will never forget!" Just as compelling was a copy of the suspect’s confession, initialed on each page, signed at the bottom, admitting to the terrible deeds in his or her own words. After all, no innocent person would confess unless it was true. And no police officer would lie about how the confession was obtained–right?

Then came DNA. It became the new gold standard. Over and over and over, DNA demonstrated, scientifically, objectively, irrefutably, that eyewitnesses are wrong (more than half the time, a chilling statistic), and that innocent people do confess to crimes they did not commit. And that some police officers will lie to get a confession (called T&D, Trickery and Deception, given a seal of approval by the U.S. Supreme Court), and that some police officers will lie, under oath, about getting a confession (called "testilying").

DNA cuts both way, of course. It seals a conviction just as convincingly as it frees the innocent. In Murdoch, Nebraska last year, lacking eyewitnesses, police doubled up–first the "old gold," a confession, and then the "new gold," DNA–in their prosecution of cousins Matt Livers and Nicholas Sampson for the April 17, 2006 murders of their relatives, Wayne and Sharmon Stock. With no real suspects, police brought in Matt Livers, who is mentally retarded, and grilled him for 18 hours. Livers finally confessed, although he had to be spoon-fed enough information to make the confession seem legitimate. And he implicated his cousin, Nicholas Sampson, and said the two of them went to the Stock home together in Sampson’s car.

Livers and Sampson were charged with murder and booked into the local jail. Sampson’s car was hauled off to impound. Between April 19 and April 27, Douglas County crime lab technicians swabbed the car's door handles, pedals, interior handles, buttons, floors and seats. Initially, they did not locate any blood or DNA evidence in the car. Somebody around the cop shop must have begun to worry about Livers’ confession–a confession that even the state’s expert agreed was almost certainly false. Crime lab technicians went back on May 8 and conducted a second search of Sampson’s car, using a wet swab, and found Wayne Stock’s DNA in the only place in the car that they tested. There. They had convictions sealed.

A fly dropped into the ointment two months later, however, when a ring found inside the Stock home led investigators to two Wisconsin teens, Gregory Fenster and Jessica Reid. The ring had been left in the car stolen by Fenster and Reid and used in a multi-state crime spree of farmhouse burglaries and car thefts. DNA evidence from the ring and a marijuana pipe also left at the Stock home belonged to Fenster and Reid. Wayne Stock’s DNA was found on Fenster’s shirt and Reid’s shoe, and Reid’s diary detailed the Stock murders. The two confessed but didn’t mention Sampson or Livers.

At first, police insisted Sampson and Livers must have been in on it with Fenster and Reid, but that kite wouldn’t fly. Charges against Sampson were dropped in October. Livers had to wait until December; charges against him were dismissed the day before a hearing that would have closely examined the circumstances of his confession.

On March 19, 2007, Fenster and Reid were sentenced to life in prison; Fenster got an extra 10 to 20 years for use of a weapon to commit a felony.

Cass County Nathan Cox said he has spoken to investigators from Cass County and the Nebraska State Patrol and does not think the blood got there as a result of accidental contamination on their part. Cox also said he has no information to suggest that one of the investigators engaged in misconduct by placing the blood there."If that were true, somebody would be subject to criminal prosecution," Cox said. "Who knows how this blood got there? Law enforcement is still trying to go through that process."

Indeed, somebody should be subject to criminal prosecution, because the only reasonable explanation for the presence of Wayne Stock’s blood in Nicholas Sampson’s car is that it was planted.

They got caught this time, the cops who badgered a retarded man into confessing to a crime he didn’t commit and implicating his cousin, and the crime lab technicians who planted DNA evidence to complete the frame-up of an innocent man. How many times do they get away with it?

The Early Death of (Another) Exoneree

Sally Clark, a British solicitor (lawyer) has died. She was only 42 years old. Sally lost two sons to Sudden Infant Death Syndrome (SIDS), then was convicted of murdering them and spent 3 years in prison before she was exonerated. Sally’s conviction was based on junk medical testimony by Sir Roy Meadow, whose statistical theories have been roundly debunked. Her husband Stephen, also a solicitor, never doubted her innocence and was pushed to the brink of bankruptcy to pay the huge legal bills for her appeals. Sally’s conviction was reversed and she was released in January, 2003, after further testing showed her son, Harry, died of a bacterial infection.

The cause of Sally’s death has not yet been determined, but regardless what clinical terminology is eventually written on the death certificate, "broken heart" has certainly been a factor. Sadly, death seems to stalk many exonerees, deaths described as "tragic" or "untimely." Ron Williamson of Ada, Oklahoma, subject of John Grisham’s book, "The Innocent Man," was sentenced to death for a crime he did not commit, exonerated, and then died at 51. Kenneth Waters of Cambridge, Massachusetts spent 18 years in prison for a murder he did not commit. His sister, Betty Anne Waters, went to law school in order to prove his innocence, and she did. He was exonerated and released in March of 2001. Six months later, Kenneth died in a tragic fall that fractured his skull. Dan Young, Jr. of Chicago, Illinois spent more than 12 years in prison for a rape and murder he did not commit. He was exonerated and freed in early 2005. Like Kenneth Waters, Dan Young had a sister, Betty Ray, who never wavered in her belief that he was innocent, and who worked tirelessly to obtain his release. In April of 2006, Dan was killed as he walked near their home by a driver who jumped the curb, struck him and fled the scene. Dan was 45 years old. There are still no suspects. It is another open wound for Dan’s sister.

All of these people suffered terribly, in their personal losses, in their wrongful imprisonment, in the often protracted battles they fought to prove their innocence, and in the hardships endured by the families who loved them and continued to believe in them. After all that, the taint of incarceration followed them home. "There must have been something to it, or they would not have convicted," people whisper among themselves. "You wouldn’t want a murderer living near you, would you? You wouldn’t want a murderer working for you, would you?"

And so the doors close, backs turn, and innocent people–people who have proven their innocence–are still imprisoned. "Their first 15 minutes of fame is exhilarating," says Peter Neufeld, co-founder of the Cardozo Innocence Project. "But after that, these people experience depression, trouble getting a job, trouble getting simple things like clothes and housing and health insurance. They don't even get access to the programs that are available for parolees."

Perhaps my impression that many of these exonerees die soon after exoneration is only that, an impression, like Sir Roy Meadow’s statistics, unsupported by objective research. But the taint that sticks to exonerees is not imaginary, and it is something for which we are collectively responsible.

What can we, as individuals, do about it? These days, you don’t have to look far from where you live to find exonerees. Reach out to them, after the 15 minutes of fame is over. Rent to them, or help them find a place to live. Clothe them, from a store with your own money or from your own closet if you can’t afford to take them shopping. Give them hair cuts. Teach them skills. Hire them, or help them find jobs. Invite them to dinner or bring a casserole to their homes. Demonstrate to them that good people understand that they, too, are good people.

Because you never know how long they will be around for you to do it.

Guest Shot: Innocent behind bars: Can you imagine the hell of it?

Sunday, 01/28/07

Innocent behind bars: Can you imagine the hell of it?

By DWIGHT LEWIS

Imagine on this bitter cold winter day being Willie O. "Pete'' Williams. Or James Waller, 50. Or 44-year-old Paul Gregory House.

Chances are most of you have never heard of these, but they all have something in common — something for which all of us should be ashamed.

Williams, after proclaiming his innocence from prison for nearly 22 years, walked out of the Fulton County Jail in Atlanta on Tuesday night after being cleared of a rape conviction by DNA evidence.

"I can't even explain,'' he was quoted in an Associated Press story after being asked how it felt to be free.

Williams, sentenced to 45 years, would not have been eligible for parole until November 2021 at the earliest. Had he served his entire sentence, he would not have been released until May 13, 2030, according to the Georgia Department of Corrections Web site.

"My thoughts are continually questioning why the most intuitively compelling testimony — eyewitness testimony — is often the LEAST reliable, and what do we do about it?'' Atlanta defense attorney Bruce Harvey told me in an e-mail Friday morning. Harvey volunteered to work on Williams' case for free.

Chances are also Willie Williams might still be in prison if it had not also been for the Georgia arm of the Innocence Project. In 2005, Williams contacted the project, which examines cases where DNA evidence is available and there is a compelling claim of innocence.

Fulton County prosecutors ordered that Williams, who had been serving his sentence at a southern Georgia prison, be released after being convinced that he was not responsible for the 1985 attack on a woman in Sandy Springs. Prosecutors say they have started an investigation to find the actual rapist.

Then there's James Waller, whose conviction of raping a boy in 1982 cost him nearly half his life in prison and parole.

Waller won a court ruling Jan. 17 declaring him innocent after being exonerated by DNA testing. He was the 12th person since 2001 whose conviction in Dallas County was overturned long after the fact as a result of genetic evidence, a New York Times story said.

Waller, who also had the help of the Innocence Project, spent more than 10 years in prison before he was paroled in 1993. Some of that time, he was made to pick cotton and after he was placed on parole had to register as a sex offender.

Imagine being James Waller, whose conviction was largely based on the 12-year-old victim's identification of him, according to court papers the New York Times obtained. How would you feel? Would you be forgiving?

I've written about Tennessee death row inmate Paul Gregory House before — the first time in October 2004. That was immediately after six of the 15 judges on the U.S. 6th Circuit Court of Appeals said House is not guilty of killing Carolyn Muncey and should be freed.

A seventh judge on the court of appeals said in a dissenting opinion that House should at least have a new trial.

Since House's conviction in 1996 for Muncey's 1985 murder in rural East Tennessee, which he was accused of committing during an attempted rape, DNA has shown that the semen evidence used to help convict House was really that of her husband, Hubert Muncey. The physical evidence of blood tying House to Muncey's murder has also been rebutted.

Why is Paul Gregory House still on Tennessee's death row? Shouldn't all Tennesseans be embarrassed about this?

"I can say I'm sorry all day,'' the current district attorney in Dallas County told Waller. "I know that doesn't mean much to you, but I can guarantee to you in the future when I'm the district attorney, we will insist that we will not send anyone who's innocent to prison.''

The same thing should not only go for those of us in Tennessee as well, but elsewhere across this nation.

Dwight Lewis is a columnist, regional editor and member of the editorial board for The Tennessean. E-mail: dlewis@tennessean.com

Duke University: So Little, So Late

Nine months after a stripper leveled rape charges against three Duke University lacrosse players; eight months after long-time lacrosse coach Mike Pressler was fired and Duke’s lacrosse season was prematurely terminated; seven months after District Attorney Mike Nifong conspired with the crime lab DNA analyst to conceal the fact none of the DNA taken from the “victim” matched any of the accused Duke students, in order to press an inflammatory but false case for political gain; six months after Duke University refused to allow the two accused undergraduates, Colin Finnerty and Reade Seligmann, to return to classes at the school, the powers that be at Duke have decided to extend the presumption of innocence until proven guilty to Finnerty and Seligmann.

That’s mighty decent of them, don’t you think?

The problem is, the presumption of innocence is supposed to apply from the beginning. It doesn’t wait in the wings until the charges fall apart under a barrage of revelations of the prosecutor’s egregious misconduct.

The North Carolina Center on Actual Innocence is part of the Duke University School of Law. The professors and students who staff the NCCAI are right there in Durham, on the same campus as the Regents and Administrators who decided Finnerty and Seligmann were guilty as soon as the accusation was made. They could have dropped by the NCCAI offices to learn how innocent people are convicted of crimes they didn’t commit, or just looked at the NCCAI’s website at http://www.law.duke.edu/innocencecenter/ Perhaps they would have understood that they were making Duke part of the problem, on the one hand, while Duke worked to rectify exactly such problems, on the other hand.

Attorneys for Finnerty and Seligmann have said that Duke’s action in inviting them back speaks to the integrity and mission of the school, as well as to their clients’ (obvious) innocence. They give Duke far more respect and credit than it deserves.

Duke University has shown utter disregard for the rights afforded all of us under the U.S. Constitution. Duke University has set an example that is a stain on academia. Duke University should be ashamed.