The following opinion was originally published at LewRockwell.com on February 9, 2009.
The Scourge of Judicial and Prosecutorial Immunity: The Prosecutorial and Police Destruction of the Life of Timothy Cole
by William L. Anderson
Although my recent column urging that immunity for police, prosecutors, and judges be eliminated received a lot of positive response, nonetheless some lawyers and others wrote to complain that if this actually were done, then those same officers of the court would face endless litigation from unscrupulous criminals. I understand that point well and even am sympathetic to it, but in the end believe that if the rest of us are subject to endless lawsuits from unscrupulous people, then everyone should be put in the same situation, if there is to be equal justice for all.
The problem is that many of the unscrupulous people are the officers of the court. Furthermore, there really are few remedies available for people to take when it turns out that the prosecutors, police, and judges have been reckless with the truth and gained a wrongful conviction. Instead, we are told that it is something with which we have to live.
With those points in mind, I would like to present the case of Timothy Cole, wrongfully convicted in 1986 for a rape he never committed. Even after another person confessed to the rape, and even after DNA testing had confirmed that Cole did not rape Texas Tech sophomore Michelle Mallin in 1985, it did no good. Timothy Cole died in prison in 1999 from complications from asthma.
Cole went to prison because Mallin identified him in court as the rapist. Forget that so-called eyewitness identification is notoriously inaccurate, and forget that Cole’s defense already had alerted police and prosecutor Jim Bob Darnell had been given ample evidence of Cole’s innocence. None of that mattered to any of the government employees seeking a conviction, and a compliant jury rendered its verdict after about six hours of discussion.
Today, Darnell is the "Honorable Jim Bob Darnell," a state judge in Texas. Yet, his actions in the Cole case were anything but honorable, for an honorable man seeks for truth, not scalps, and there were lots of holes in Darnell’s case in 1986. First, Mallin noted that the man smoked heavily throughout the ordeal. Cole, who suffered from asthma, did not smoke and, indeed, would have had a severe reaction from smoking.
Second, Cole’s fingerprints were not found anywhere on or in Mallin’s car, despite the fact that Mallin testified that the man was not wearing gloves. Third, Cole had an alibi, as friends testified in court that he was with them when the alleged rape occurred. Darnell would have none of that. Even though it was clear that there was a serial rapist on the loose, and that Mallin’s rapist had engaged in similar patterns in other attacks, all of that information was suppressed, thanks to Darnell’s insistence and the judge’s compliance:
By then police had backed away from Tim as a suspect in multiple rapes. No physical evidence connected Tim to the crimes, and victims had not recognized him in the lineups.
But Darnell blocked near any mention of that in front of jurors. Police on the stand who more than a year earlier had hunted for a serial rapist made little comment on any connection to other rapes.
Again and again, Darnell hammered on how the witness had picked Tim out of the lineup…. And when Reggie and friends testified to Tim's focus on school, to his presence at a party at his duplex the night of the attack, Darnell shredded the alibi apart by casting doubt on the memories and motives of the witnesses.
Tim's defense attorney, Mike Brown, pushed back. Didn't a victim confuse Tim for Terry Lee Clark? he asked the detectives. Didn't police fail to find any physical evidence that this victim recognized? Didn't the rapes in vacant fields by knifepoint continue after Tim's arrest, like the ones committed by a violent offender, Jerry Wayne Johnson?
Darnell: "Are we going to try every rape that occurs in Lubbock County over a six month or one year period of time involving black males?"
There was still more reason to doubt, Brown said. Didn't this victim fail to describe some of Tim's more obvious features? Tim removed his shirt for the jury, showing his mottled back and arm, birthmarks that covered his upper body.
Darnell: "Is that person going to be embracing that individual and remembering everything about that person's back when they are being sexually assaulted and their soul is being taken from them?" he asked days later in closing as the victim burst into tears.
In fact, one of the reasons that Mallin was so sure of her identification was that police investigators insisted that Cole was the man and, in effect, confirmed for her the identification she had made. Yet, today, we know that the defense was right; it wasTerry Wayne Johnson who committed that and other rapes around Lubbock. Terry Wayne Johnson, a heavy smoker. Terry Wayne Johnson, whose DNA would be a match when checked many years later.
Let me put this case another way; Mike Brown, Cole’s attorney, did a better job of investigating the case than did the Lubbock Police and Jim Bob Darnell. In fact, the official investigators failed in their efforts, and ultimately depended upon lies, bullying, and intimidation. The last thing they wanted was the truth getting in the way of a conviction, and that was what they got.
I am not interested in hearing how police simply "made a mistake." If Mike Brown could figure out the case, why were the police and prosecution so reluctant to do the same? There was another clue that perhaps they were mistaken, Cole’s response to a plea offer.
Darnell and the police had promised Cole that if he would plead to a lesser charge, he only would receive probation. Cole refused, saying he would not plead to something he did not do. When in prison, he was offered the chance to get out on parole if only he would admit to having committed the crime for which he was imprisoned. He refused.
In other words, Timothy Cole was a man of principle. Jim Bob Darnell, the man called "Your Honor" every day of his working life, is not a man of principle. He decided in 1986 that Cole was guilty, and that he would not let facts or the truth get in the way of securing a conviction.
As I have said before, the facts of the case did not point to Timothy Cole. They pointed, instead, to Terry Wayne Johnson, but neither the police nor Darnell were interested in what might have happened. They had their story, and they were going to stick to it.
But the sorry tale still was not over. In 1995, after the statute of limitations had run out, Johnson confessed to Mallin’s rape. The people running the "justice" show in Texas were not interested. Cole’s family did not give up trying to clear Timothy of this rape, and they tried and tried, even after Timothy was dead. Finally, and reluctantly, in 2008 the authorities finally got around to testing the DNA, and found a match with Johnson. As one might suspect, there was none with Timothy Cole, but it did not matter, for Cole had been dead for nearly a decade.
So, Jim Bob Darnell, now the Honorable Jim Bob Darnell essentially murdered Timothy Cole. He had the opportunity in 1986 to get at the truth, but took the easy way out, bullying his way to a conviction. If he truly were "honorable," he immediately would resign his judgeship and turn in his law license and offer to clean toilets in the Cole household for the rest of his life.
Instead, Darnell will continue in his career as a judge, passing sentence perhaps on other people wrongfully convicted, agreeing with prosecutors on plea bargains in cases where the truth never will be permitted to be known. He will be able to continue his comfortable and "respectable" life as though he never had killed Timothy Cole.
That is why I believe that we must get rid of judicial and prosecutorial immunity. Not only does immunity protect the Mike Nifongs of this world – people who openly lie in court and are protected in ways that one cannot imagine for others – but it also permits those people who have taken the lives of others to continue as though nothing had happened.
In the real world, people are supposed to take responsibility for what they do. If someone sells me a faulty product, I can take legal action against that person. If someone in his or her dealings with me in the world of private enterprise lies or shades the truth, I have some recourse.
However, if a prosecutor lies or a judge permits a travesty of justice to occur in his courtroom, it is business as usual. There might be discipline for that person, but generally speaking, the prosecutor gives an excuse, the judge hides behind immunity, and everyone else whose life was shattered is expected to "pick up the pieces and move on."
If I or Lew Rockwell or most people reading this article were responsible for the death of another human being, there would be a price to pay. Our futures possibly would hold prison or perhaps execution. At the very least, we would be expected to compensate the wronged party with our own resources.
Jim Bob Darnell does not have to worry about that. He had immunity, he has immunity, and he can do what he damn well pleases. Not only will he never have to face justice for killing another human being, but he won’t even be inconvenienced. No, he did not have to make the trip to Austin when the courts finally exonerated Cole, and did not show his face in the courtroom; he was and is immune.
No system of justice can be perfect in a world of imperfect people. It is true that most people brought into the criminal justice system are guilty as charged, or have been involved in criminal activity. Furthermore, I also realize that plenty of "jailhouse lawyers" would use their time to file "frivolous" lawsuits against prosecutors, police and judges if given the chance.
Yet, I believe there could be a mechanism developed to deal with that problem. Certainly, the courts do not see a problem with, say, Microsoft facing a bevy of lawsuits because Bill Gates believes that the company should have lots of cash on hand. Judges certainly don’t worry about the plaintiffs’ bar destroying the ability of companies to function just because there is money to be made.
But my point is that a system in which the proverbial foxes guard the henhouse is no system of justice at all. It is an open invitation for lies and abuse, and the blood of Timothy Cole cries out every day because of it.
________________________________________________
William L. Anderson, Ph.D. teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.He also is a consultant with American Economic Services.
Monday, February 09, 2009
Monday, January 05, 2009
Guest Shot: Innocence Funding
The following editorial was published in the Fort Worth, TX Star-Telegram on January 5, 2009.
The alleged $50 billion Ponzi scheme run by Bernard Madoff, once a well-respected Wall Street investor, has claimed many casualties — individuals as well as large nonprofit institutions.
A Texas organization that has done an incredible job of helping victims of our flawed criminal justice system has fallen victim itself after learning that its major benefactor’s funds had been "managed" by Madoff.
The Innocence Project of Texas, which has exonerated more than 30 wrongly convicted people through DNA testing, received a $450,000 grant last year from the JEHT Foundation of New York to pay for the testing expenses. The foundation announced that because of its losses through Madoff investments it would suspend grants and shut down at the end of this month.
Money already received by the Innocence Project will remain with the organization, which operates programs at Texas Tech University, the University of Texas at Austin, the University of Houston and Texas Southern University. But there are many more cases to be investigated and each DNA test costs $4,000 to $5,000.
Innocence Project officials have applied for funding from other nonprofit foundations in the state, including one associated with the State Bar of Texas. By all means the state bar should support the program financially, but as one attorney with the project says, the responsibility of helping to clear these innocent people lies with the state of Texas itself.
Jeff Blackburn, chief counsel for the Innocence Project of Texas at Texas Tech, told the Star-Telegram that the state Legislature could address this problem by spending a small fraction of the $2.3 billion it allocates to operate prisons.
"The prison system is asking the Legislature to give it $500 million more this year for increased salaries to maintain its current level of operations," Blackburn said. "One five-hundredth of that amount — $1 million — would guarantee that the innocence work in this state could go forward."
We agree. That is a small price to pay to free even one innocent person. In Dallas County alone in the past few years, 19 men have been exonerated by DNA testing.
These wrongly convicted cases are a blot on the criminal justice system in this state, a blemish that is not likely to go away anytime soon. These injustices must be corrected, and the state should join in that effort with the dedicated individuals and nonprofit groups that have been working to rectify such despicable errors.
Truth in Justice Editorial Note: Other innocence projects have lost funding -- directly and indirectly -- because of the collapse of the Madoff scheme. Our readers are encouraged to donate to the innocence project(s) that take cases from their state. Find the address for your innocence project(s) at Truth in Justice's list of innocence project contacts.
The alleged $50 billion Ponzi scheme run by Bernard Madoff, once a well-respected Wall Street investor, has claimed many casualties — individuals as well as large nonprofit institutions.
A Texas organization that has done an incredible job of helping victims of our flawed criminal justice system has fallen victim itself after learning that its major benefactor’s funds had been "managed" by Madoff.
The Innocence Project of Texas, which has exonerated more than 30 wrongly convicted people through DNA testing, received a $450,000 grant last year from the JEHT Foundation of New York to pay for the testing expenses. The foundation announced that because of its losses through Madoff investments it would suspend grants and shut down at the end of this month.
Money already received by the Innocence Project will remain with the organization, which operates programs at Texas Tech University, the University of Texas at Austin, the University of Houston and Texas Southern University. But there are many more cases to be investigated and each DNA test costs $4,000 to $5,000.
Innocence Project officials have applied for funding from other nonprofit foundations in the state, including one associated with the State Bar of Texas. By all means the state bar should support the program financially, but as one attorney with the project says, the responsibility of helping to clear these innocent people lies with the state of Texas itself.
Jeff Blackburn, chief counsel for the Innocence Project of Texas at Texas Tech, told the Star-Telegram that the state Legislature could address this problem by spending a small fraction of the $2.3 billion it allocates to operate prisons.
"The prison system is asking the Legislature to give it $500 million more this year for increased salaries to maintain its current level of operations," Blackburn said. "One five-hundredth of that amount — $1 million — would guarantee that the innocence work in this state could go forward."
We agree. That is a small price to pay to free even one innocent person. In Dallas County alone in the past few years, 19 men have been exonerated by DNA testing.
These wrongly convicted cases are a blot on the criminal justice system in this state, a blemish that is not likely to go away anytime soon. These injustices must be corrected, and the state should join in that effort with the dedicated individuals and nonprofit groups that have been working to rectify such despicable errors.
Truth in Justice Editorial Note: Other innocence projects have lost funding -- directly and indirectly -- because of the collapse of the Madoff scheme. Our readers are encouraged to donate to the innocence project(s) that take cases from their state. Find the address for your innocence project(s) at Truth in Justice's list of innocence project contacts.
Thursday, January 01, 2009
Guest Shot: In 90’s, Burris Sought Death Penalty for Innocent Man
The following is re-posted from ProPublica, an independent, non-profit newsroom that produces investigative journalism in the public interest. ProPublica strives to foster change through exposing exploitation of the weak by the strong and the failures of those with power to vindicate the trust placed in them.
In 90’s, Burris Sought Death Penalty for Innocent Man
by Ben Protess , ProPublica - December 31, 2008
Former Illinois attorney general Roland Burris, embattled Gov. Rod Blagojevich’s pick to replace Barack Obama in the Senate, is no stranger to controversy.
Public fury over the governor’s alleged misconduct has masked the once lively debate over Burris' decision to continue to prosecute – despite the objections of one of his top prosecutors – the wrong man for a high-profile murder case.
While state attorney general in 1992, Burris aggressively sought the death penalty for Rolando Cruz, who twice was convicted of raping and murdering a 10-year-old girl in the Chicago suburb of Naperville. The crime took place in 1983.
But by 1992, another man had confessed to the crime, and Burris’ own deputy attorney general was pleading with Burris to drop the case, then on appeal before the Illinois Supreme Court.
Burris refused. He was running for governor.
"Anybody who understood this case wouldn’t have voted for Burris," Rob Warden, executive director of the Center on Wrongful Convictions, told ProPublica. Indeed, Burris lost that race, and two other attempts to become governor.
Burris’ role in the Cruz case was "indefensible and in defiance of common sense and common decency," Warden said. "There was obvious evidence that [Cruz] was innocent."
Deputy attorney general Mary Brigid Kenney agreed, and eventually resigned rather than continue to prosecute Cruz.
Once Burris assigned Kenney to the case in 1991, she became convinced that Cruz was innocent, a victim of what she believed was prosecutorial misconduct. She sent Burris a memo reporting that the jury convicted Cruz without knowing that Brian Dugan, a repeat sex offender and murderer, had confessed to the crime. Burris never met with Kenney to discuss a new trial for Cruz, Kenney told ProPublica.
"This is something the attorney general should have been concerned about," Kenney, now an assistant public guardian in Cook County, said in an interview. "I knew the prosecutor’s job was not merely to secure conviction but to ensure justice was done."
Kenney was not alone in her beliefs. Prior to Cruz’ 1985 trial, the lead detective in the case resigned in protest over prosecutors' handling of the case, according to news reports at the time.
And rather than argue Burris’ case before the state supreme court, Kenney also stepped down.
"What I took away was that [Burris] wasn’t going to do anything to seem soft on crime," Kenney said. "He didn’t have the guts."
In her resignation letter, Kenney claimed Burris had "seen fit to ignore the evidence in this case."
"I cannot sit idly by as this office continues to pursue the unjust prosecution of Rolando Cruz," she wrote. "I realized that I was being asked to help execute an innocent man."
Burris' response at the time: "It is not for me to place my judgment over a jury, regardless of what I think." (We have also left a message for Burris at his office and will post an update if we hear back.)
State prosecutors carried on with the prosecution, even after DNA evidence in 1995 excluded Cruz as the victim's rapist and linked somebody else—sex offender Brian Dugan–to the crime.
Eventually, prosecutors’ case hit a wall. The Illinois Supreme Court reversed Cruz's conviction and granted him a third trial. (The court declared that the trial judge in the case had improperly excluded Dugan’s confession, and thus compromised Cruz's defense.) In the new trial, Cruz was acquitted. The judge in that case concluded, "I'd hope and pray the person or persons - whoever is culpable - is brought to justice."
In late 1995, Cruz finally walked free after serving 11 years on death row for a crime he did not commit.
A grand jury later indicted four sheriff's deputies and three former county prosecutors for their roles in the Cruz case. They were eventually acquitted. Burris was never accused of any wrongdoing or misconduct. Dugan is scheduled to stand trial for the crime next year, 26 years after it was committed.
In 90’s, Burris Sought Death Penalty for Innocent Man
by Ben Protess , ProPublica - December 31, 2008
Former Illinois attorney general Roland Burris, embattled Gov. Rod Blagojevich’s pick to replace Barack Obama in the Senate, is no stranger to controversy.
Public fury over the governor’s alleged misconduct has masked the once lively debate over Burris' decision to continue to prosecute – despite the objections of one of his top prosecutors – the wrong man for a high-profile murder case.
While state attorney general in 1992, Burris aggressively sought the death penalty for Rolando Cruz, who twice was convicted of raping and murdering a 10-year-old girl in the Chicago suburb of Naperville. The crime took place in 1983.
But by 1992, another man had confessed to the crime, and Burris’ own deputy attorney general was pleading with Burris to drop the case, then on appeal before the Illinois Supreme Court.
Burris refused. He was running for governor.
"Anybody who understood this case wouldn’t have voted for Burris," Rob Warden, executive director of the Center on Wrongful Convictions, told ProPublica. Indeed, Burris lost that race, and two other attempts to become governor.
Burris’ role in the Cruz case was "indefensible and in defiance of common sense and common decency," Warden said. "There was obvious evidence that [Cruz] was innocent."
Deputy attorney general Mary Brigid Kenney agreed, and eventually resigned rather than continue to prosecute Cruz.
Once Burris assigned Kenney to the case in 1991, she became convinced that Cruz was innocent, a victim of what she believed was prosecutorial misconduct. She sent Burris a memo reporting that the jury convicted Cruz without knowing that Brian Dugan, a repeat sex offender and murderer, had confessed to the crime. Burris never met with Kenney to discuss a new trial for Cruz, Kenney told ProPublica.
"This is something the attorney general should have been concerned about," Kenney, now an assistant public guardian in Cook County, said in an interview. "I knew the prosecutor’s job was not merely to secure conviction but to ensure justice was done."
Kenney was not alone in her beliefs. Prior to Cruz’ 1985 trial, the lead detective in the case resigned in protest over prosecutors' handling of the case, according to news reports at the time.
And rather than argue Burris’ case before the state supreme court, Kenney also stepped down.
"What I took away was that [Burris] wasn’t going to do anything to seem soft on crime," Kenney said. "He didn’t have the guts."
In her resignation letter, Kenney claimed Burris had "seen fit to ignore the evidence in this case."
"I cannot sit idly by as this office continues to pursue the unjust prosecution of Rolando Cruz," she wrote. "I realized that I was being asked to help execute an innocent man."
Burris' response at the time: "It is not for me to place my judgment over a jury, regardless of what I think." (We have also left a message for Burris at his office and will post an update if we hear back.)
State prosecutors carried on with the prosecution, even after DNA evidence in 1995 excluded Cruz as the victim's rapist and linked somebody else—sex offender Brian Dugan–to the crime.
Eventually, prosecutors’ case hit a wall. The Illinois Supreme Court reversed Cruz's conviction and granted him a third trial. (The court declared that the trial judge in the case had improperly excluded Dugan’s confession, and thus compromised Cruz's defense.) In the new trial, Cruz was acquitted. The judge in that case concluded, "I'd hope and pray the person or persons - whoever is culpable - is brought to justice."
In late 1995, Cruz finally walked free after serving 11 years on death row for a crime he did not commit.
A grand jury later indicted four sheriff's deputies and three former county prosecutors for their roles in the Cruz case. They were eventually acquitted. Burris was never accused of any wrongdoing or misconduct. Dugan is scheduled to stand trial for the crime next year, 26 years after it was committed.
Saturday, December 06, 2008
Guest Shot: Gorcyca's exoneration makes a bad precedent
The following opinion was originally published in the Detroit Free Press on December 4, 2008.
Gorcyca's exoneration makes a bad precedent
BY LARRY DUBIN • December 4, 2008
The ethics rules that apply to prosecutors as promulgated by the Michigan Supreme Court state: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see ... that guilt is decided upon the basis of sufficient evidence."
So why did a hearing panel of the Michigan Attorney Discipline Board conclude that Oakland County Prosecutor David Gorcyca's public and highly prejudicial comments about a pending defendant did not constitute professional misconduct?
After an Oak Park elementary teacher was convicted of sexual conduct crimes by a jury in a highly publicized case, an Oakland County judge ordered a new jury trial. During this period of time, Gorcyca made comments on the radio and in the press that the defendant was "a freak" and "a pedophile" who had refused to voluntarily submit to a polygraph test offered by the prosecution (even though polygraph testimony is inadmissible at trial).
Gorcyca made further comments about information intended to establish the defendant's guilt concerning videos found at the defendant's residence that the trial judge had ruled inadmissible during the first trial.
The defendant was entitled to be presumed innocent, and Gorcyca had an ethical and legal duty not to make public statements that would have "a substantial likelihood of materially prejudicing an adjudicative proceeding." Under Michigan Rule of Professional Conduct 3.6, Gorcyca's freedom of speech is limited, especially where a jury trial is afforded an accused, from making reckless public statements that are designed to pollute the potential impartiality of prospective jurors who might be called for future service in that case.
The Michigan Supreme Court even gives examples about the types of statements that a lawyer should not make to avoid being guilty of professional misconduct. These prohibited statements include discussing the "character, credibility or reputation" of a suspect; "the refusal or failure of a person to submit to ... a test, ... or information that the lawyer knows ... is likely to be inadmissible as evidence in a trial."
The hearing panel, in dismissing this formal complaint against Gorcyca, used bad judgment in relying on the facts of a prior Michigan case involving public statements made by a lawyer in a civil matter. Gorcyca was acting as a public prosecutor in a pending criminal case and not as a lawyer representing a civil litigant whose client lacks the constitutional protections of an accused in a highly publicized criminal trial.
Perhaps the Michigan Attorney Grievance Commission will have the wisdom to appeal this dismissal to the Michigan Attorney Discipline Board. In the absence of a reversal of this dismissal, the ethics rules limiting public statements by prosecutors that can interfere with an accused person's right to a fair trial will be meaningless.
LARRY DUBIN is a professor of law at the University of Detroit Mercy School of Law and former chairperson of the Michigan Attorney Grievance Commission. Write to him in care of the Free Press Editorial Page, 615 W. Lafayette, Detroit, MI 48226 or at oped@freepress.com.
Truthinjustice Files Editorial Note: David Gorcycka is no stranger to unethical and even illegal conduct to get what he wants, or, failing that, to get even with anyone he perceives as standing in his way. Consider what Gorcyca did when he didn't like Judge Rae Lee Chabot's rulings in another case.
Gorcyca's exoneration makes a bad precedent
BY LARRY DUBIN • December 4, 2008
The ethics rules that apply to prosecutors as promulgated by the Michigan Supreme Court state: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see ... that guilt is decided upon the basis of sufficient evidence."
So why did a hearing panel of the Michigan Attorney Discipline Board conclude that Oakland County Prosecutor David Gorcyca's public and highly prejudicial comments about a pending defendant did not constitute professional misconduct?
After an Oak Park elementary teacher was convicted of sexual conduct crimes by a jury in a highly publicized case, an Oakland County judge ordered a new jury trial. During this period of time, Gorcyca made comments on the radio and in the press that the defendant was "a freak" and "a pedophile" who had refused to voluntarily submit to a polygraph test offered by the prosecution (even though polygraph testimony is inadmissible at trial).
Gorcyca made further comments about information intended to establish the defendant's guilt concerning videos found at the defendant's residence that the trial judge had ruled inadmissible during the first trial.
The defendant was entitled to be presumed innocent, and Gorcyca had an ethical and legal duty not to make public statements that would have "a substantial likelihood of materially prejudicing an adjudicative proceeding." Under Michigan Rule of Professional Conduct 3.6, Gorcyca's freedom of speech is limited, especially where a jury trial is afforded an accused, from making reckless public statements that are designed to pollute the potential impartiality of prospective jurors who might be called for future service in that case.
The Michigan Supreme Court even gives examples about the types of statements that a lawyer should not make to avoid being guilty of professional misconduct. These prohibited statements include discussing the "character, credibility or reputation" of a suspect; "the refusal or failure of a person to submit to ... a test, ... or information that the lawyer knows ... is likely to be inadmissible as evidence in a trial."
The hearing panel, in dismissing this formal complaint against Gorcyca, used bad judgment in relying on the facts of a prior Michigan case involving public statements made by a lawyer in a civil matter. Gorcyca was acting as a public prosecutor in a pending criminal case and not as a lawyer representing a civil litigant whose client lacks the constitutional protections of an accused in a highly publicized criminal trial.
Perhaps the Michigan Attorney Grievance Commission will have the wisdom to appeal this dismissal to the Michigan Attorney Discipline Board. In the absence of a reversal of this dismissal, the ethics rules limiting public statements by prosecutors that can interfere with an accused person's right to a fair trial will be meaningless.
LARRY DUBIN is a professor of law at the University of Detroit Mercy School of Law and former chairperson of the Michigan Attorney Grievance Commission. Write to him in care of the Free Press Editorial Page, 615 W. Lafayette, Detroit, MI 48226 or at oped@freepress.com.
Truthinjustice Files Editorial Note: David Gorcycka is no stranger to unethical and even illegal conduct to get what he wants, or, failing that, to get even with anyone he perceives as standing in his way. Consider what Gorcyca did when he didn't like Judge Rae Lee Chabot's rulings in another case.
Thursday, December 04, 2008
Guest Shot: Time to end the death penalty in Maryland
The following opinion was originally published in the Baltimore Examiner on December 1, 2008.
Time to end the death penalty in Maryland
By Michael May
12/1/08
I spent 10 years as a law enforcement officer, including seven in the Baltimore Police Department. So I am no stranger to violence.
Indeed, my years surrounded by senseless crime filled me with outrage and the desire for revenge — including the death penalty.
But I have learned a lot since then, including the scary fact that a single mistake could be mean the execution of an innocent person.
As someone who has dedicated my life to enforcing the law, I can't live with that. I testified before the Maryland Commission on Capital Punishment this fall, sharing my journey from death penalty supporter to a supporter of repeal. And last month the Commission validated my experience by voting for the same - the repeal of Maryland's death penalty. It was a smart decision and I hope the legislature will move quickly to enact it.
As I said, my opposition to the death penalty evolved. During my years in Vietnam and later as a military policeman in Louisiana, I was exposed to violence as a matter of routine. My anger at those who would harm innocent people boiled over. Then, working in some of the poorest and crime-ridden neighborhoods of Baltimore only strengthened my feeling that some people were simply beyond redemption. It was a fairly simple conclusion for me to think that the most evil people in our society deserved the death penalty. In my view, those who opposed it were muddleheaded, knee-jerk liberals who were just plain wrong.
I felt that way until about ten years ago. The last decade has seen a broad shift in public opinion on the death penalty, and I was not immune to the new information that was coming out about innocent people being sentenced to death. I was also struck by a talk on the death penalty by then Archbishop of Baltimore, William Cardinal Keeler, when he spoke at a mass at my parish in Towson. I realized then that I had to learn more.
I read about Kirk Noble Bloodsworth — a man sentenced to die in Maryland for a crime he did not commit. I could not begin to imagine the absolute horror of languishing on death row an innocent man. I could not imagine the anticipation of being lifted onto a gurney, strapped down and injected with a combination of lethal drugs by an incompetent nurse's aide — knowing all the time that I had done nothing wrong.
As I read about Mr. Bloodsworth and other innocent people that came close to execution, my doubts about the death penalty grew. Human beings are simply not right 100 percent of the time. No amount of reforms, technological advances, or legal procedures can undo that fact. If the death penalty remains, some state, perhaps even our state, will kill an innocent person. Can we live with that?
Like many people, I have struggled to make sense of this issue. The death penalty seems like a proportionate punishment for a grievous crime. At least it brings justice to victims in the face of evil. But does it? My religion teaches that the path to true peace is through forgiveness. John Paul II traveled to an Italian prison to forgive the man who shot him. The death penalty keeps us from following that noble example. It certainly does not bring back or even honor the dead. It also does not ennoble the living. It does nothing to assuage the sorrow of the victim's loved ones. In fact, as I sat through the commission hearings waiting to testify, I heard from victims' families who said the opposite — that the death penalty's uncertainty only brought them more grief.
The closer you look at it, the less the death penalty makes any sense. As the Maryland commission found, the risk of executing an innocent person is just too high to justify maintaining a punishment that does not deter, costs too much, and harms victims' families.
And as a former police officer, I would add that the death penalty is not needed to protect the public. It is time for Maryland to make the common-sense choice and replace the death penalty with life without parole.
Michael May, of Rodgers Forge, Maryland, is an attorney and formerly served as a Baltimore City police officer and a military police officer
Time to end the death penalty in Maryland
By Michael May
12/1/08
I spent 10 years as a law enforcement officer, including seven in the Baltimore Police Department. So I am no stranger to violence.
Indeed, my years surrounded by senseless crime filled me with outrage and the desire for revenge — including the death penalty.
But I have learned a lot since then, including the scary fact that a single mistake could be mean the execution of an innocent person.
As someone who has dedicated my life to enforcing the law, I can't live with that. I testified before the Maryland Commission on Capital Punishment this fall, sharing my journey from death penalty supporter to a supporter of repeal. And last month the Commission validated my experience by voting for the same - the repeal of Maryland's death penalty. It was a smart decision and I hope the legislature will move quickly to enact it.
As I said, my opposition to the death penalty evolved. During my years in Vietnam and later as a military policeman in Louisiana, I was exposed to violence as a matter of routine. My anger at those who would harm innocent people boiled over. Then, working in some of the poorest and crime-ridden neighborhoods of Baltimore only strengthened my feeling that some people were simply beyond redemption. It was a fairly simple conclusion for me to think that the most evil people in our society deserved the death penalty. In my view, those who opposed it were muddleheaded, knee-jerk liberals who were just plain wrong.
I felt that way until about ten years ago. The last decade has seen a broad shift in public opinion on the death penalty, and I was not immune to the new information that was coming out about innocent people being sentenced to death. I was also struck by a talk on the death penalty by then Archbishop of Baltimore, William Cardinal Keeler, when he spoke at a mass at my parish in Towson. I realized then that I had to learn more.
I read about Kirk Noble Bloodsworth — a man sentenced to die in Maryland for a crime he did not commit. I could not begin to imagine the absolute horror of languishing on death row an innocent man. I could not imagine the anticipation of being lifted onto a gurney, strapped down and injected with a combination of lethal drugs by an incompetent nurse's aide — knowing all the time that I had done nothing wrong.
As I read about Mr. Bloodsworth and other innocent people that came close to execution, my doubts about the death penalty grew. Human beings are simply not right 100 percent of the time. No amount of reforms, technological advances, or legal procedures can undo that fact. If the death penalty remains, some state, perhaps even our state, will kill an innocent person. Can we live with that?
Like many people, I have struggled to make sense of this issue. The death penalty seems like a proportionate punishment for a grievous crime. At least it brings justice to victims in the face of evil. But does it? My religion teaches that the path to true peace is through forgiveness. John Paul II traveled to an Italian prison to forgive the man who shot him. The death penalty keeps us from following that noble example. It certainly does not bring back or even honor the dead. It also does not ennoble the living. It does nothing to assuage the sorrow of the victim's loved ones. In fact, as I sat through the commission hearings waiting to testify, I heard from victims' families who said the opposite — that the death penalty's uncertainty only brought them more grief.
The closer you look at it, the less the death penalty makes any sense. As the Maryland commission found, the risk of executing an innocent person is just too high to justify maintaining a punishment that does not deter, costs too much, and harms victims' families.
And as a former police officer, I would add that the death penalty is not needed to protect the public. It is time for Maryland to make the common-sense choice and replace the death penalty with life without parole.
Michael May, of Rodgers Forge, Maryland, is an attorney and formerly served as a Baltimore City police officer and a military police officer
Sunday, November 16, 2008
Politics as usual in Virginia Governor’s Mansion
The voices of 26 retired FBI agents have joined the chorus of law enforcement, prosecutorial and judicial professionals urging Governor Timothy Kaine (D) to pardon the Norfolk Four—sailors Danial J. Williams, Joseph J. Dick Jr., Derek E. Tice and Eric C. Wilson—convicted of the 1997 rape and murder of Michelle Bosko in Norfolk, Virginia. The crime was committed by Omar Ballard, who acted alone. Only Ballard’s DNA was found at the crime scene. His confession accurately mirrors the evidence. The “confessions” obtained from Williams, Dick, Tice and Wilson were coerced and false, wrung from them by local police under threat of the death penalty.
The clemency applications of the Norfolk Four actually landed on the desk of former Virginia Governor Mark Warner (D) in 2005. It is customary for outgoing governors in Virginia (which holds off-year elections for top state posts) to act on pardon applications prior to leaving office. The fact that Governor Warner did nothing signaled two things: he had ambitions for some other high office, and he thinks the people of Virginia are too stupid to understand what four former Virginia Attorneys General and numerous others were able to conclude, that these four men are innocent.
One could say his ploy worked, since Warner was just elected to the U.S. Senate, to fill the vacancy left by the retirement of Senator John Warner (no relation to Mark Warner). Governor Tim Kaine presumably has similar aspirations, since he, too, has let the Norfolk Four application languish. The FBI agents sent their letter supporting the pardon to Governor Kaine in July of 2008. After months passed without as much as an acknowledgement, they called a press conference and released the text of their letter to the public on November 10, 2008. In a gesture reflecting gubernatorial arrogance, an aide confirmed that Governor Kaine received the letter, but there was no further comment.
This imperial “fiddle while Rome burns” inaction follows a fine tradition in Virginia. Repeated DNA tests proved that Earl Washington was innocent of the rape and murder of Rebecca Williams in Culpeper, Virginia in 1982. Yet former Governor L. Douglas Wilder (D) waited until the last hour of his governorship in 1994 to commute Washington’s death sentence, changing it to life in prison without parole. Governor Wilder had bigger plans, a run for the presidency, and he couldn’t afford to be seen as “soft on crime” by releasing an innocent man from prison.
It fell to Governor Jim Gilmore (R) to do the right thing by Earl Washington, and he didn’t wait until the end of his term in office to do so. On October 2, 2000, Governor Gilmore announced: "In my judgment, a jury afforded the benefit of the DNA evidence and analysis available to me today would have reached a different conclusion regarding the guilt of Earl Washington. Upon careful deliberation and review of all of the evidence, as well as the circumstances of this matter, I have decided it is just and appropriate to intervene in the judicial process by granting Earl Washington an absolute pardon for the capital murder and rape of Rebecca Williams.”
When Barack Obama won the U.S presidential election—and a majority of Virginians voted for him—Governor Tim Kaine announced jubilantly that his victory marked “the end of Ol’ Virginny.” Really, Governor Kaine? Prove it. For just a moment, stop following lockstep in the paths of your Democratic predecessors, set aside your own ambitions and do the right thing. Grow a spine. Pardon the Norfolk Four.
The clemency applications of the Norfolk Four actually landed on the desk of former Virginia Governor Mark Warner (D) in 2005. It is customary for outgoing governors in Virginia (which holds off-year elections for top state posts) to act on pardon applications prior to leaving office. The fact that Governor Warner did nothing signaled two things: he had ambitions for some other high office, and he thinks the people of Virginia are too stupid to understand what four former Virginia Attorneys General and numerous others were able to conclude, that these four men are innocent.
One could say his ploy worked, since Warner was just elected to the U.S. Senate, to fill the vacancy left by the retirement of Senator John Warner (no relation to Mark Warner). Governor Tim Kaine presumably has similar aspirations, since he, too, has let the Norfolk Four application languish. The FBI agents sent their letter supporting the pardon to Governor Kaine in July of 2008. After months passed without as much as an acknowledgement, they called a press conference and released the text of their letter to the public on November 10, 2008. In a gesture reflecting gubernatorial arrogance, an aide confirmed that Governor Kaine received the letter, but there was no further comment.
This imperial “fiddle while Rome burns” inaction follows a fine tradition in Virginia. Repeated DNA tests proved that Earl Washington was innocent of the rape and murder of Rebecca Williams in Culpeper, Virginia in 1982. Yet former Governor L. Douglas Wilder (D) waited until the last hour of his governorship in 1994 to commute Washington’s death sentence, changing it to life in prison without parole. Governor Wilder had bigger plans, a run for the presidency, and he couldn’t afford to be seen as “soft on crime” by releasing an innocent man from prison.
It fell to Governor Jim Gilmore (R) to do the right thing by Earl Washington, and he didn’t wait until the end of his term in office to do so. On October 2, 2000, Governor Gilmore announced: "In my judgment, a jury afforded the benefit of the DNA evidence and analysis available to me today would have reached a different conclusion regarding the guilt of Earl Washington. Upon careful deliberation and review of all of the evidence, as well as the circumstances of this matter, I have decided it is just and appropriate to intervene in the judicial process by granting Earl Washington an absolute pardon for the capital murder and rape of Rebecca Williams.”
When Barack Obama won the U.S presidential election—and a majority of Virginians voted for him—Governor Tim Kaine announced jubilantly that his victory marked “the end of Ol’ Virginny.” Really, Governor Kaine? Prove it. For just a moment, stop following lockstep in the paths of your Democratic predecessors, set aside your own ambitions and do the right thing. Grow a spine. Pardon the Norfolk Four.
Saturday, November 15, 2008
Guest Shot: Lawyers call on law enforcement to stop harassment
Truth in Justice Files Editor's Note: The following open letter to law enforcement in Taylor County, Wisconsin was originally published in the Medford Star News on November 13, 2008. While the actions of law enforcement in a specific case, in a particular location, are described, this type of "tunnelvision" conduct is standard operating procedure in a significant percentage of cases that result in wrongful convictions.
Lawyers call on law enforcement to stop harassment
A tragedy occurred in Taylor County back in January of this year. A county resident (Ms. Jean Viken) was apparently abducted from her home. A few months later, her remains were found in another county, and the implication was that a homicide had taken place. In fact, at a news conference on May 13, 2008, the Taylor County Sheriff gave a prepared statement and then took questions. In his statement, the sheriff indicated that there were "several persons of interest." He would not comment any further as to who those persons were.
Since the disappearance, the sheriff's department has focused solely upon a couple of individuals, to the apparent exclusion of all others. The "investigation" has entailed contacting a number of individuals and questioning them about these particular "persons of interest." In fact, the investigation has left no other conclusion as to who the department believed to be the perpetrators, and it appears to be a deliberate course of conduct on the part of the department.
All during the course of this "investigation" the "persons of interest" have been subjected to what appears to be a pattern of near harassment from officials, and absolute harassment from a number of civilian individuals as well (these individuals are being identified by independent means). These "persons of interest" have had great difficulty at work, and at their business, and the conduct has caused them to suffer not only emotionally, but economically, as well. They and their families have been caused what may be irreparable damage because of the seemingly inept handling of the situation.
These "persons of interest" hired us to represent them because of the apparent harassment they were, and still are, facing. During the course of becoming familiar with the circumstances surrounding the tragedy, and its aftermath, it has become apparent to us that the "investigation" has become so compromised that the heinous crime may never be solved; the real culprit(s) may walk away with impunity.
The investigators have been nothing but openly hostile to our clients, have called them names, and have been as sarcastic as possible in the hopes of furthering their "investigation." They have belittled our clients, chastising them for "non-cooperation," and all the while their mode of conduct has been startlingly lacking in anything that could be called conducive to any sort of cooperation.
The sheriff has failed to respond to communication sent to him inquiring about the re-entry to the homestead of one of the clients. This place had been listed as out of bounds due to forensic investigation, but the site was compromised from the very beginning, and continued to be compromised as certain civilian(s) came on the premises as they apparently wished. There have been civilians on and about the premises from the start. There can be no formal excuse for not allowing re-entry onto the premises; there can be no formal excuse for not even a courtesy reply to our communication; any suggestion by law enforcement that they still need the premises for investigatory purposes is surely either a bad "joke" or something perhaps more clandestine.
One of our clients was basically arrested from a place of business and brought in for fingerprints. The way this was accomplished was uncalled for and leads one to wonder why it was necessary to do so. Also, this client had his house smashed in during a warrant search that was conveniently done just after he had left the premises. The damage that occurred (all documented) was significant. A simple request would have allowed entry without creating this damage. But, apparently, that would not have gotten across any "message" officials wanted to convey.
In closing, we urge the citizens of Taylor County to begin to demand that a true investigation be initiated and bring in outside help. We suggest this due to the apparent inability of the local agency to be able to handle the matter itself. This needs to be placed on the correct path so the true culprits can be found. There needs to be an end to an apparent pattern of harassment to a couple of innocents.
— Lester H. Liptak, attorney for Duane Viken, Mark R. Mullen, attorney for Allen Viken
Lawyers call on law enforcement to stop harassment
A tragedy occurred in Taylor County back in January of this year. A county resident (Ms. Jean Viken) was apparently abducted from her home. A few months later, her remains were found in another county, and the implication was that a homicide had taken place. In fact, at a news conference on May 13, 2008, the Taylor County Sheriff gave a prepared statement and then took questions. In his statement, the sheriff indicated that there were "several persons of interest." He would not comment any further as to who those persons were.
Since the disappearance, the sheriff's department has focused solely upon a couple of individuals, to the apparent exclusion of all others. The "investigation" has entailed contacting a number of individuals and questioning them about these particular "persons of interest." In fact, the investigation has left no other conclusion as to who the department believed to be the perpetrators, and it appears to be a deliberate course of conduct on the part of the department.
All during the course of this "investigation" the "persons of interest" have been subjected to what appears to be a pattern of near harassment from officials, and absolute harassment from a number of civilian individuals as well (these individuals are being identified by independent means). These "persons of interest" have had great difficulty at work, and at their business, and the conduct has caused them to suffer not only emotionally, but economically, as well. They and their families have been caused what may be irreparable damage because of the seemingly inept handling of the situation.
These "persons of interest" hired us to represent them because of the apparent harassment they were, and still are, facing. During the course of becoming familiar with the circumstances surrounding the tragedy, and its aftermath, it has become apparent to us that the "investigation" has become so compromised that the heinous crime may never be solved; the real culprit(s) may walk away with impunity.
The investigators have been nothing but openly hostile to our clients, have called them names, and have been as sarcastic as possible in the hopes of furthering their "investigation." They have belittled our clients, chastising them for "non-cooperation," and all the while their mode of conduct has been startlingly lacking in anything that could be called conducive to any sort of cooperation.
The sheriff has failed to respond to communication sent to him inquiring about the re-entry to the homestead of one of the clients. This place had been listed as out of bounds due to forensic investigation, but the site was compromised from the very beginning, and continued to be compromised as certain civilian(s) came on the premises as they apparently wished. There have been civilians on and about the premises from the start. There can be no formal excuse for not allowing re-entry onto the premises; there can be no formal excuse for not even a courtesy reply to our communication; any suggestion by law enforcement that they still need the premises for investigatory purposes is surely either a bad "joke" or something perhaps more clandestine.
One of our clients was basically arrested from a place of business and brought in for fingerprints. The way this was accomplished was uncalled for and leads one to wonder why it was necessary to do so. Also, this client had his house smashed in during a warrant search that was conveniently done just after he had left the premises. The damage that occurred (all documented) was significant. A simple request would have allowed entry without creating this damage. But, apparently, that would not have gotten across any "message" officials wanted to convey.
In closing, we urge the citizens of Taylor County to begin to demand that a true investigation be initiated and bring in outside help. We suggest this due to the apparent inability of the local agency to be able to handle the matter itself. This needs to be placed on the correct path so the true culprits can be found. There needs to be an end to an apparent pattern of harassment to a couple of innocents.
— Lester H. Liptak, attorney for Duane Viken, Mark R. Mullen, attorney for Allen Viken
Tuesday, November 11, 2008
Guest Shot: Do Convicts Have a Constitutional Right to Access Crime-Scene DNA?
The following commentary was originally published at http://writ.news.findlaw.com/colb/20081110.html on November 10, 2008
Do Convicts Have a Constitutional Right to Access Crime-Scene DNA? The U.S. Supreme Court Considers the Question
By SHERRY F. COLB
Monday, Nov. 10, 2008
The U.S. Supreme Court recently agreed to hear an appeal in a criminal case involving DNA, District Attorney's Office v. Osborne. William G. Osborne - a man who, fourteen years ago, was convicted of kidnapping and sexual assault in Alaska - argues in a civil rights lawsuit against the District Attorney's office that the State must now provide him with physical evidence from the crime scene, so that he can perform a DNA analysis that would not have been technologically possible at the time of his trial.
In an overwhelming number of jurisdictions, convicts are entitled to access such evidence, but Alaska is one of six states that do not recognize this right. The Supreme Court will now consider whether the U.S. Constitution guarantees any degree of post-conviction access (at least where, as in this case, the convict is willing to foot the bill for DNA testing and the evidence is still in storage).
In this column, I will consider a slightly different question, but one that is related to what the Court will consider: Why might a State want to prevent a convict from gaining access to forensic evidence for DNA testing?
It is important to ask this question because if there is absolutely no reason for such resistance, then the State's refusal might be characterized under the law as having no "rational basis." Although the "rational basis" standard is quite lenient, the Supreme Court has repeatedly held that a state action or law that truly has no rationale at all violates the Due Process of the Fourteenth Amendment. How can we tell whether a rational basis exists? According to the Court, the Due Process Clause requires that all state conduct bear some connection to a legitimate governmental objective. In this column, I will examine whether any such connection exists here.
One Possible Legitimate Government Objective: Closure
One interest that the government may claim, after the conclusion of a criminal case, is in closure. The defendant benefitted from the presumption of innocence up until the moment at which a jury found him guilty beyond a reasonable doubt. At that point, the presumption - appropriately and decisively - shifted towards guilt.
Decisions about a convict's future are thus rightly made on the basis of the premise that he is guilty. For instance, he may be incarcerated as a punishment for his crime, on the assumption that he in fact committed it. He also may be examined by a parole board and judged "unrepentant" for his failure to take responsibility for his actions, a judgment that would be odd in the case of a person who is either innocent or presumptively so. Finally, he has only limited opportunities to challenge his conviction, and the opportunities he does have focus primarily on claims of procedural error (the admission of inadmissible evidence, the failure of his attorney to represent him adequately, race discrimination in the selection of his jury) rather than on claims that he might actually be innocent.
Given this focus on procedure - specifically, the adequacy of the convict's trial leading up to his conviction and sentence - an opportunity to re-examine physical evidence that was available at the time of trial might seem an improper attempt to re-litigate the question of innocence, especially in the absence of any new reason to doubt the defendant's guilt.
The sole purpose of examining DNA evidence, after all, is to attempt - again - to rebut the government's assertions that he is guilty of the crime for which he has been convicted. To allow the convict (and other convicts) access to such evidence is to acknowledge that there is a non-trivial chance that he might be innocent, and that acknowledgement is at least in some tension with the presumption of guilt that prevails.
Indeed, in the case before the Supreme Court, Osborne, who was convicted of a brutal rape (which could easily have been a murder if the victim had not survived being beaten with an axe handle, shot at, and left for dead after having been raped), has already confessed in detail to his role in the crime, in a written application for parole and at a subsequent parole hearing, at which he indicated that he had also confessed the truth to his attorney and to his mother.
The difficulty with this closure argument, however, is that in the case of DNA evidence, convicts who, like Osborne, were convicted years ago, are asking to examine evidence to which they truly did not have access at trial, given the state of technology at the time. As with the discovery, post-conviction, of another dead body relevant to a murder case, it is quite possible that if DNA evidence had been available before or during trial, the prosecution or defense might, respectively, have conducted themselves quite differently. The prosecution might have ruled out the defendant's guilt or the defendant might have offered powerfully exculpatory evidence. Self-serving "confessions" might not have been offered.
It may turn out, of course, that the DNA in Osborne's case - or in any given case - proves incriminating rather than exculpatory. Either way, though, the evidence - consisting of semen from the condom and hair samples found at the crime scene, which can now be subjected to very precise DNA probing - is highly relevant to guilt. Yet neither party was in a position to examine this evidence at the time of trial.
Rather than preclude closure, in other words, an examination of DNA evidence - at the convict's own expense - could potentially provide closure. And it could provide the kind of closure that ought to be appealing from everyone's perspective - proof that the convict was in fact involved in the crime for which he was convicted or, perhaps, proof that he could not have been so involved. Both the prosecuting attorney and the defense attorney ought to find the prospect of such closure desirable.
Another Possible Government Objective: Avoiding The Slippery Slope
The government, however, has another potentially legitimate objective to assert here. In addition to seeking factual closure following a conviction, the government might also seek the sort of closure that people derive from the expiration of a statute of limitations. That is, the government might take the view that if it can be required to make physical evidence available to convicts for newly-possible DNA testing, then it could also be required to preserve evidence long after it might otherwise have disposed of it, just in case new technologies develop that might allow for the gleaning of facts that were previously unavailable. Such a requirement, in turn, would entail storage and record-keeping that could prove very expensive.
As it happens, in Osborne's particular case, the evidence at issue is already available, but if a convict were understood to have a "right" (as opposed to the option of making a request that could lawfully be denied) to such evidence, then it might appear inappropriate for the government to destroy physical evidence that might some day yield new information about the convict's actual guilt or innocence.
Could a constitutional right on the part of the defendant properly turn on the storage practices of an individual police department or prosecutor's office? Mightn't any disposal of evidence, in view of such a right, be read as obstruction of justice?
On the assumption - a legally legitimate assumption - that a convicted person truly did commit the offenses at issue, the Alaska D.A.'s office could argue that a robust right of access to trial evidence for re-analysis would be costly, and that the cost would not be justified, to the extent that the police, prosecutors, and jurors truly do provide a fair process to a criminal defendant. The Alaska D.A. could also argue that a right that turned instead on whether the government had in fact happened to store the evidence would, at best, be arbitrary and, at worst, could motivate law enforcement and prosecutors to dispose of evidence quickly and thus avoid the need to re-litigate guilt and innocence after a successful verdict.
The Power of Denial
In an opinion affirming that Osborne does in fact have a right to access the evidence he seeks, the U.S. Court of Appeals for the Ninth Circuit found the D.A.'s resistance perplexing. The evidence - a condom that the prosecutor contended at trial contained semen from the rape, and pubic hair found on the victim's clothing (and introduced by the prosecutor against Osborne as well) - could help establish conclusively that the defendant is guilty. And if DNA testing were instead to call Osborne's guilt into serious question, it could generate a biological profile that might help identify the actual perpetrator. In this case, at least, a DNA test appears to represent a win-win proposition that - to the puzzlement of the Ninth Circuit panel - the State would foreclose "by its simple refusal to open the evidence locker." Even if it is not, in other words, surprising that the Alaska D.A.'s office would want to avoid creation of a potentially generalizable right, it is peculiar that it refused Osborne the evidence he sought in the first place.
Yet it should not be entirely perplexing that prosecutors would resist coming face-to-face with evidence that might establish that they have - albeit unwittingly - been party to a grave miscarriage of justice: the long-term incarceration of an utterly innocent person. It is one thing, in other words, to know in the abstract that some people have been convicted and subsequently shown to be innocent on the basis of a previously unavailable DNA test. It is quite another to learn that you have made a mistake and that your witnesses misidentified an innocent man as the perpetrator of unspeakable crimes, thus leading to his wrongful incarceration.
Indeed, if such evidence were to come to light - even assuming you did not concern yourself with the public reaction to the disclosure - you might well begin to doubt every case you bring, including the many cases in which there neither was, nor ever will be, DNA evidence that could "expose" the truth. Paraphrasing the words of Jack Nicholson in "A Few Good Men," prosecutors may be unable to "handle" the truth that DNA testing might unearth in particular cases.
An Easy Case That Is Hard to Call
I am not prepared to predict that the Supreme Court will affirm the Ninth Circuit in this case - although it surely should. For one thing, Justice Scalia is very likely to vote to reverse. He has shown hostility (expressed in Herrera v. Collins) to "actual innocence" claims in general, and here we have a claim that is a mere preparatory step to an "actual innocence" claim - if the DNA test exculpates Osborne, he can then bring a habeas corpus petition arguing for his release.
Given their usual orientation toward the State's position in criminal law cases, Chief Justice Roberts and Justices Thomas and Alito are likely to go along with Justice Scalia. Justice Kennedy is less predictable, so the result - as in so many cases now before the Court - will probably turn on how he sees things.
Notwithstanding the difficulty of predicting its outcome, however, I will venture to say that this is (or ought to be) an easy win for the petitioner. Whatever might happen in future cases, the evidence at issue here is unquestionably available. The police department, in fact, has specifically agreed to provide the evidence if the D.A.'s office instructs it to do so. The prosecutor introduced the evidence at issue at the trial and presented the results of a rudimentary DNA test in support of conviction - though the test merely narrowed the population of possible suspects to a group consisting of 14.7 to 16 percent of African-American men, including Osborne. The DNA tests currently available would, by contrast, provide a genetic profile with one-in-a-billion specificity. And Osborne is willing to pay for the DNA test himself.
Given all of these facts, this should be an easy call. Other cases in the future might be more difficult: the police department that is poised to discard the evidence at issue for reasons of cost; the convict who cannot afford to pay for the DNA test himself; the prosecutor who did not rely on the physical evidence to prove guilt; or the situation in which a negative DNA match does not plainly undermine confidence in the verdict. Here, however, the prosecutor should simply have provided the evidence, rather than force Osborne to bring a lawsuit against the District Attorney's office to get what ought to be his obvious due.
It is the D.A.'s failure willingly to hand over the DNA that most powerfully suggests that simple denial is the force at work in this case. If a prosecutor were confident in Osborne's guilt, he would surely want the DNA results, if only to quiet any doubts - including those of the defense - about the possibility that he pursued the wrong man. But how could the prosecutor be utterly confident? Cases that looked airtight at the time have washed away in the wake of DNA evidence. Confident eyewitness identifications that seemed persuasive have turned out to be mistaken.
Yet prosecutors must rely on non-DNA evidence in a large number of cases: they do not have the "luxury" of a near-certain biological identification for every defendant. And for these and other cases, prosecutors do not want to lose faith in the process. Like the city-dweller who fears seeing a cockroach scurrying away after turning on a kitchen light, the prosecutor might prefer to close his eyes. The preference is perhaps a comprehensible expression of human nature. But it is not any kind of justification for withholding the evidence in District Attorney's Office v. Osborne.
--------------------------------------------------------------------------------
Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.
Do Convicts Have a Constitutional Right to Access Crime-Scene DNA? The U.S. Supreme Court Considers the Question
By SHERRY F. COLB
Monday, Nov. 10, 2008
The U.S. Supreme Court recently agreed to hear an appeal in a criminal case involving DNA, District Attorney's Office v. Osborne. William G. Osborne - a man who, fourteen years ago, was convicted of kidnapping and sexual assault in Alaska - argues in a civil rights lawsuit against the District Attorney's office that the State must now provide him with physical evidence from the crime scene, so that he can perform a DNA analysis that would not have been technologically possible at the time of his trial.
In an overwhelming number of jurisdictions, convicts are entitled to access such evidence, but Alaska is one of six states that do not recognize this right. The Supreme Court will now consider whether the U.S. Constitution guarantees any degree of post-conviction access (at least where, as in this case, the convict is willing to foot the bill for DNA testing and the evidence is still in storage).
In this column, I will consider a slightly different question, but one that is related to what the Court will consider: Why might a State want to prevent a convict from gaining access to forensic evidence for DNA testing?
It is important to ask this question because if there is absolutely no reason for such resistance, then the State's refusal might be characterized under the law as having no "rational basis." Although the "rational basis" standard is quite lenient, the Supreme Court has repeatedly held that a state action or law that truly has no rationale at all violates the Due Process of the Fourteenth Amendment. How can we tell whether a rational basis exists? According to the Court, the Due Process Clause requires that all state conduct bear some connection to a legitimate governmental objective. In this column, I will examine whether any such connection exists here.
One Possible Legitimate Government Objective: Closure
One interest that the government may claim, after the conclusion of a criminal case, is in closure. The defendant benefitted from the presumption of innocence up until the moment at which a jury found him guilty beyond a reasonable doubt. At that point, the presumption - appropriately and decisively - shifted towards guilt.
Decisions about a convict's future are thus rightly made on the basis of the premise that he is guilty. For instance, he may be incarcerated as a punishment for his crime, on the assumption that he in fact committed it. He also may be examined by a parole board and judged "unrepentant" for his failure to take responsibility for his actions, a judgment that would be odd in the case of a person who is either innocent or presumptively so. Finally, he has only limited opportunities to challenge his conviction, and the opportunities he does have focus primarily on claims of procedural error (the admission of inadmissible evidence, the failure of his attorney to represent him adequately, race discrimination in the selection of his jury) rather than on claims that he might actually be innocent.
Given this focus on procedure - specifically, the adequacy of the convict's trial leading up to his conviction and sentence - an opportunity to re-examine physical evidence that was available at the time of trial might seem an improper attempt to re-litigate the question of innocence, especially in the absence of any new reason to doubt the defendant's guilt.
The sole purpose of examining DNA evidence, after all, is to attempt - again - to rebut the government's assertions that he is guilty of the crime for which he has been convicted. To allow the convict (and other convicts) access to such evidence is to acknowledge that there is a non-trivial chance that he might be innocent, and that acknowledgement is at least in some tension with the presumption of guilt that prevails.
Indeed, in the case before the Supreme Court, Osborne, who was convicted of a brutal rape (which could easily have been a murder if the victim had not survived being beaten with an axe handle, shot at, and left for dead after having been raped), has already confessed in detail to his role in the crime, in a written application for parole and at a subsequent parole hearing, at which he indicated that he had also confessed the truth to his attorney and to his mother.
The difficulty with this closure argument, however, is that in the case of DNA evidence, convicts who, like Osborne, were convicted years ago, are asking to examine evidence to which they truly did not have access at trial, given the state of technology at the time. As with the discovery, post-conviction, of another dead body relevant to a murder case, it is quite possible that if DNA evidence had been available before or during trial, the prosecution or defense might, respectively, have conducted themselves quite differently. The prosecution might have ruled out the defendant's guilt or the defendant might have offered powerfully exculpatory evidence. Self-serving "confessions" might not have been offered.
It may turn out, of course, that the DNA in Osborne's case - or in any given case - proves incriminating rather than exculpatory. Either way, though, the evidence - consisting of semen from the condom and hair samples found at the crime scene, which can now be subjected to very precise DNA probing - is highly relevant to guilt. Yet neither party was in a position to examine this evidence at the time of trial.
Rather than preclude closure, in other words, an examination of DNA evidence - at the convict's own expense - could potentially provide closure. And it could provide the kind of closure that ought to be appealing from everyone's perspective - proof that the convict was in fact involved in the crime for which he was convicted or, perhaps, proof that he could not have been so involved. Both the prosecuting attorney and the defense attorney ought to find the prospect of such closure desirable.
Another Possible Government Objective: Avoiding The Slippery Slope
The government, however, has another potentially legitimate objective to assert here. In addition to seeking factual closure following a conviction, the government might also seek the sort of closure that people derive from the expiration of a statute of limitations. That is, the government might take the view that if it can be required to make physical evidence available to convicts for newly-possible DNA testing, then it could also be required to preserve evidence long after it might otherwise have disposed of it, just in case new technologies develop that might allow for the gleaning of facts that were previously unavailable. Such a requirement, in turn, would entail storage and record-keeping that could prove very expensive.
As it happens, in Osborne's particular case, the evidence at issue is already available, but if a convict were understood to have a "right" (as opposed to the option of making a request that could lawfully be denied) to such evidence, then it might appear inappropriate for the government to destroy physical evidence that might some day yield new information about the convict's actual guilt or innocence.
Could a constitutional right on the part of the defendant properly turn on the storage practices of an individual police department or prosecutor's office? Mightn't any disposal of evidence, in view of such a right, be read as obstruction of justice?
On the assumption - a legally legitimate assumption - that a convicted person truly did commit the offenses at issue, the Alaska D.A.'s office could argue that a robust right of access to trial evidence for re-analysis would be costly, and that the cost would not be justified, to the extent that the police, prosecutors, and jurors truly do provide a fair process to a criminal defendant. The Alaska D.A. could also argue that a right that turned instead on whether the government had in fact happened to store the evidence would, at best, be arbitrary and, at worst, could motivate law enforcement and prosecutors to dispose of evidence quickly and thus avoid the need to re-litigate guilt and innocence after a successful verdict.
The Power of Denial
In an opinion affirming that Osborne does in fact have a right to access the evidence he seeks, the U.S. Court of Appeals for the Ninth Circuit found the D.A.'s resistance perplexing. The evidence - a condom that the prosecutor contended at trial contained semen from the rape, and pubic hair found on the victim's clothing (and introduced by the prosecutor against Osborne as well) - could help establish conclusively that the defendant is guilty. And if DNA testing were instead to call Osborne's guilt into serious question, it could generate a biological profile that might help identify the actual perpetrator. In this case, at least, a DNA test appears to represent a win-win proposition that - to the puzzlement of the Ninth Circuit panel - the State would foreclose "by its simple refusal to open the evidence locker." Even if it is not, in other words, surprising that the Alaska D.A.'s office would want to avoid creation of a potentially generalizable right, it is peculiar that it refused Osborne the evidence he sought in the first place.
Yet it should not be entirely perplexing that prosecutors would resist coming face-to-face with evidence that might establish that they have - albeit unwittingly - been party to a grave miscarriage of justice: the long-term incarceration of an utterly innocent person. It is one thing, in other words, to know in the abstract that some people have been convicted and subsequently shown to be innocent on the basis of a previously unavailable DNA test. It is quite another to learn that you have made a mistake and that your witnesses misidentified an innocent man as the perpetrator of unspeakable crimes, thus leading to his wrongful incarceration.
Indeed, if such evidence were to come to light - even assuming you did not concern yourself with the public reaction to the disclosure - you might well begin to doubt every case you bring, including the many cases in which there neither was, nor ever will be, DNA evidence that could "expose" the truth. Paraphrasing the words of Jack Nicholson in "A Few Good Men," prosecutors may be unable to "handle" the truth that DNA testing might unearth in particular cases.
An Easy Case That Is Hard to Call
I am not prepared to predict that the Supreme Court will affirm the Ninth Circuit in this case - although it surely should. For one thing, Justice Scalia is very likely to vote to reverse. He has shown hostility (expressed in Herrera v. Collins) to "actual innocence" claims in general, and here we have a claim that is a mere preparatory step to an "actual innocence" claim - if the DNA test exculpates Osborne, he can then bring a habeas corpus petition arguing for his release.
Given their usual orientation toward the State's position in criminal law cases, Chief Justice Roberts and Justices Thomas and Alito are likely to go along with Justice Scalia. Justice Kennedy is less predictable, so the result - as in so many cases now before the Court - will probably turn on how he sees things.
Notwithstanding the difficulty of predicting its outcome, however, I will venture to say that this is (or ought to be) an easy win for the petitioner. Whatever might happen in future cases, the evidence at issue here is unquestionably available. The police department, in fact, has specifically agreed to provide the evidence if the D.A.'s office instructs it to do so. The prosecutor introduced the evidence at issue at the trial and presented the results of a rudimentary DNA test in support of conviction - though the test merely narrowed the population of possible suspects to a group consisting of 14.7 to 16 percent of African-American men, including Osborne. The DNA tests currently available would, by contrast, provide a genetic profile with one-in-a-billion specificity. And Osborne is willing to pay for the DNA test himself.
Given all of these facts, this should be an easy call. Other cases in the future might be more difficult: the police department that is poised to discard the evidence at issue for reasons of cost; the convict who cannot afford to pay for the DNA test himself; the prosecutor who did not rely on the physical evidence to prove guilt; or the situation in which a negative DNA match does not plainly undermine confidence in the verdict. Here, however, the prosecutor should simply have provided the evidence, rather than force Osborne to bring a lawsuit against the District Attorney's office to get what ought to be his obvious due.
It is the D.A.'s failure willingly to hand over the DNA that most powerfully suggests that simple denial is the force at work in this case. If a prosecutor were confident in Osborne's guilt, he would surely want the DNA results, if only to quiet any doubts - including those of the defense - about the possibility that he pursued the wrong man. But how could the prosecutor be utterly confident? Cases that looked airtight at the time have washed away in the wake of DNA evidence. Confident eyewitness identifications that seemed persuasive have turned out to be mistaken.
Yet prosecutors must rely on non-DNA evidence in a large number of cases: they do not have the "luxury" of a near-certain biological identification for every defendant. And for these and other cases, prosecutors do not want to lose faith in the process. Like the city-dweller who fears seeing a cockroach scurrying away after turning on a kitchen light, the prosecutor might prefer to close his eyes. The preference is perhaps a comprehensible expression of human nature. But it is not any kind of justification for withholding the evidence in District Attorney's Office v. Osborne.
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Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.
Monday, November 10, 2008
Guest Shot: For or against the death penalty?
The following was originally published in Perth (Australia) Confidential on November 10, 2008.
For or against the death penalty?
By Tom Percy QC
November 10, 2008 11:24am
I have to admit I once supported the death penalty. It had a fundamental righteousness, an eye-for-an-eye type of justice, with a superficial but immediate appeal to it.
However, a sequence of events was to change my mind as I came at close quarters with two men and a woman who had experienced the shadow of the gallows.
Even though we haven’t hanged anyone in Australia since 1967, and in WA since 1964, those unlucky enough to be convicted of wilful murder in Perth were still sentenced to death until 1984, when the mandatory penalty was removed from the Criminal Code.
The last one of those was a country woman named Brenda Hodge, who was convicted in my hometown of Kalgoorlie in 1984. I was the junior (very junior) counsel to a leading Perth QC at her trial. We all believed that she wouldn’t hang, but watching on as the judge pronounced the litany of the death sentence was something I shall never forget.
It was a galling experience, like something out of a movie. The terror in her eyes as the sentence was passed will haunt me forever.
They didn’t hang her. She survived prison, was released some years ago, and has lived a blameless life ever since.
Fifteen years later I came to meet John Button and took on his case for what appeared to be a wrongful conviction in 1963. He had not been sentenced to death, having only been convicted of the alternate offence of manslaughter, but he did stand trial for wilful murder in an era when a conviction for that offence meant he would almost certainly have been hanged.
He was ultimately acquitted in 2002, some 40 years after the event, but the fact that he had come within an ace of being executed hardened my opposition to the death penalty. It was a little too permanent for my liking.
Through my involvement in Button’s case I was asked to assist with Darryl Beamish’s case in 2004. He was a mentally impaired man who had been sentenced to death in 1961, and was fortunate to have been reprieved from hanging. Only the fact of his age (he was 20 when he entered death row at Fremantle) and that he was a deaf mute saved him. The 15 years’ prison he wrongly served for the offence was hard to get my head around, as was the fact he was only spared execution by the accident of his own physical disabilities.
Like Button, he had been wrongly convicted. My involvement in this case galvanised me (if any galvanisation were still required) in the resolve that there could never be any justification for a community putting one of its own members to death. Obviously not all people convicted of capital crimes are wrongly convicted. The vast majority of these cases will involve the right person. But what of those that don’t? Where the system gets it wrong?
Proponents of capital punishment assure us that the possibility of a mistake is so unlikely that we need not worry about it. I can’t subscribe to that. Nor, I suspect, would Andrew Mallard and at least three of my former clients.
For or against the death penalty?
By Tom Percy QC
November 10, 2008 11:24am
I have to admit I once supported the death penalty. It had a fundamental righteousness, an eye-for-an-eye type of justice, with a superficial but immediate appeal to it.
However, a sequence of events was to change my mind as I came at close quarters with two men and a woman who had experienced the shadow of the gallows.
Even though we haven’t hanged anyone in Australia since 1967, and in WA since 1964, those unlucky enough to be convicted of wilful murder in Perth were still sentenced to death until 1984, when the mandatory penalty was removed from the Criminal Code.
The last one of those was a country woman named Brenda Hodge, who was convicted in my hometown of Kalgoorlie in 1984. I was the junior (very junior) counsel to a leading Perth QC at her trial. We all believed that she wouldn’t hang, but watching on as the judge pronounced the litany of the death sentence was something I shall never forget.
It was a galling experience, like something out of a movie. The terror in her eyes as the sentence was passed will haunt me forever.
They didn’t hang her. She survived prison, was released some years ago, and has lived a blameless life ever since.
Fifteen years later I came to meet John Button and took on his case for what appeared to be a wrongful conviction in 1963. He had not been sentenced to death, having only been convicted of the alternate offence of manslaughter, but he did stand trial for wilful murder in an era when a conviction for that offence meant he would almost certainly have been hanged.
He was ultimately acquitted in 2002, some 40 years after the event, but the fact that he had come within an ace of being executed hardened my opposition to the death penalty. It was a little too permanent for my liking.
Through my involvement in Button’s case I was asked to assist with Darryl Beamish’s case in 2004. He was a mentally impaired man who had been sentenced to death in 1961, and was fortunate to have been reprieved from hanging. Only the fact of his age (he was 20 when he entered death row at Fremantle) and that he was a deaf mute saved him. The 15 years’ prison he wrongly served for the offence was hard to get my head around, as was the fact he was only spared execution by the accident of his own physical disabilities.
Like Button, he had been wrongly convicted. My involvement in this case galvanised me (if any galvanisation were still required) in the resolve that there could never be any justification for a community putting one of its own members to death. Obviously not all people convicted of capital crimes are wrongly convicted. The vast majority of these cases will involve the right person. But what of those that don’t? Where the system gets it wrong?
Proponents of capital punishment assure us that the possibility of a mistake is so unlikely that we need not worry about it. I can’t subscribe to that. Nor, I suspect, would Andrew Mallard and at least three of my former clients.
Guest Shot: Put scientists, not cops, in crime labs
This opinion was originally published in the Detroit (Michigan) Free Press on November 8, 2008.
Put scientists, not cops, in crime labs
By David A. Moran and Samuel R. Gross • November 8, 2008
The Michigan State Police released a final report late last month on the firearms unit of the Detroit Police Crime Lab. It’s a highly disturbing document.
MSP found, among other deficiencies, that guns and bullets were kept unsecured and unprotected from possible loss and contamination; that essential records were missing in some 90% of the files; that critical scientific equipment had never been properly calibrated; and that many of the firearms examiners were untrained and unqualified.
An audit of 283 of the cases handled by the unit found an error rate greater than 10% – including several cases in which the examiners apparently assumed that the submitted bullets and shell casings came from the defendants’ guns without actually testing all of the evidence. It is likely that errors by this unit have led to many wrongful convictions.
Wayne County Prosecuting Attorney Kym Worthy and Detroit Police Chief James Barren have responded forcefully to this fiasco. In September, after a preliminary version of the report was issued, they shut down the entire Detroit Police Crime Lab. Worthy is also committed to retesting evidence in the hundreds, if not thousands, of cases in which people have been convicted based on results from the firearms unit.
We commend Worthy and Barren for their commitment to seeing that justice is done. Their task will get even harder if the city finds the funds to complete the audit of the crime lab, including the units that deal with fingerprints, DNA evidence and other physical and biological specimens.
The good news is that Detroit may be no worse off than many other cities. The bad news is that the good news – if you can call it that – is really terrible. This is a crisis that is national in scope. Consider three examples, among many:
• The Houston Police Department’s crime lab was shut down in 2003 after a media investigation uncovered massive incompetence. Thousands of cases were affected. After the shutdown 280 boxes of lost or mishandled evidence were discovered in a property room, including human body parts and a fetus.
• Last month, the Los Angeles Police Department fired a fingerprint analyst and suspended three others for reporting false fingerprint identifications. We don’t know yet how widespread the problem in Los Angeles is, but similar things have happened elsewhere. An ABC News report in 1994 found that officers had faked fingerprint matches in dozens of cases in at least seven states.
• In 1997 a Justice Department report concluded that 13 technicians at FBI crime labs had made serious errors or slanted testimony to help prosecutors. A later investigation concluded that thousands of cases may have been tainted by shoddy work or misleading evidence.
Fixing this problem will take money, training, and supervision. We’ll never get CSI evidence worth using if the work is done with outdated equipment by untrained, underpaid and overworked technicians.
But money alone can’t solve everything. Most crime labs in the United States are run by police departments. That should change. We need independent crime labs run by scientists, not by police officers.
Some forensic examiners in police crime labs come to believe that their advancement depends on pleasing the officers who give them evidence to test. In the worst cases, this leads to outright fraud and the conviction of innocent people.
• Joyce Gilchrist, a chemist in the Oklahoma City Police Crime Lab, became a star as the “go to expert” – the one who could deliver a conviction where others failed. By the time she was fired in 2001, her fraudulent testimony had sent at least three innocent men to prison, including two to death row. Hundreds of her other cases are still under investigation by the authorities.
• Fred Zain was chief of serology – blood science – at the West Virginia State Police lab, where he was implicated in hundreds of cases of fraud and perjury. He went on to pursue his ignominious career in San Antonio, Texas – where he died while perjury charges were pending – but only after he was named West Virginia State Trooper of the Year. Zain’s fraudulent testimony sent at least five innocent people to prison.
Systematic fraud is only the most extreme problem with police-run crime labs. After the police arrest a suspect, their job is to get him convicted. This applies to everybody in the police department: We all believe in our own teams and want to help them win. This can lead the most honest investigators to misinterpret evidence and to reach conclusions that are consistent with their initial beliefs.
Worse, this type of tunnel vision causes lab workers to ignore evidence that points to other suspects. Fingerprints that were left by some unknown person – or blood with DNA that doesn’t match the suspect – may seem unimportant when you’re focused on getting a conviction. The Innocence Project has documented scores of cases around the country, including at least three in Michigan, in which innocent defendants were convicted while physical evidence pointing to the real criminals was ignored or discounted.
Physical evidence - unlike witness testimony – offers the promise of an objective truth free from the taint of human bias and error. It is as important for the defense in criminal cases as for the prosecution. Fingerprints, blood, semen, guns, bullets and drugs can all provide highly reliable evidence of a defendant’s guilt – or of his innocence – if they are properly collected, stored and tested. If not, there may never be a second chance to do it right.
We need crime lab investigators who do their work with scrupulous care without regard to the suspicions or beliefs of the police. We need labs to be open to defense attorneys as well as prosecutors. We need independent, science-driven crime labs rather than labs run by police departments.
David A. Moran and Samuel R. Gross are professors at the University of Michigan Law School. Moran is also co-director of the Michigan Innocence Clinic.
Put scientists, not cops, in crime labs
By David A. Moran and Samuel R. Gross • November 8, 2008
The Michigan State Police released a final report late last month on the firearms unit of the Detroit Police Crime Lab. It’s a highly disturbing document.
MSP found, among other deficiencies, that guns and bullets were kept unsecured and unprotected from possible loss and contamination; that essential records were missing in some 90% of the files; that critical scientific equipment had never been properly calibrated; and that many of the firearms examiners were untrained and unqualified.
An audit of 283 of the cases handled by the unit found an error rate greater than 10% – including several cases in which the examiners apparently assumed that the submitted bullets and shell casings came from the defendants’ guns without actually testing all of the evidence. It is likely that errors by this unit have led to many wrongful convictions.
Wayne County Prosecuting Attorney Kym Worthy and Detroit Police Chief James Barren have responded forcefully to this fiasco. In September, after a preliminary version of the report was issued, they shut down the entire Detroit Police Crime Lab. Worthy is also committed to retesting evidence in the hundreds, if not thousands, of cases in which people have been convicted based on results from the firearms unit.
We commend Worthy and Barren for their commitment to seeing that justice is done. Their task will get even harder if the city finds the funds to complete the audit of the crime lab, including the units that deal with fingerprints, DNA evidence and other physical and biological specimens.
The good news is that Detroit may be no worse off than many other cities. The bad news is that the good news – if you can call it that – is really terrible. This is a crisis that is national in scope. Consider three examples, among many:
• The Houston Police Department’s crime lab was shut down in 2003 after a media investigation uncovered massive incompetence. Thousands of cases were affected. After the shutdown 280 boxes of lost or mishandled evidence were discovered in a property room, including human body parts and a fetus.
• Last month, the Los Angeles Police Department fired a fingerprint analyst and suspended three others for reporting false fingerprint identifications. We don’t know yet how widespread the problem in Los Angeles is, but similar things have happened elsewhere. An ABC News report in 1994 found that officers had faked fingerprint matches in dozens of cases in at least seven states.
• In 1997 a Justice Department report concluded that 13 technicians at FBI crime labs had made serious errors or slanted testimony to help prosecutors. A later investigation concluded that thousands of cases may have been tainted by shoddy work or misleading evidence.
Fixing this problem will take money, training, and supervision. We’ll never get CSI evidence worth using if the work is done with outdated equipment by untrained, underpaid and overworked technicians.
But money alone can’t solve everything. Most crime labs in the United States are run by police departments. That should change. We need independent crime labs run by scientists, not by police officers.
Some forensic examiners in police crime labs come to believe that their advancement depends on pleasing the officers who give them evidence to test. In the worst cases, this leads to outright fraud and the conviction of innocent people.
• Joyce Gilchrist, a chemist in the Oklahoma City Police Crime Lab, became a star as the “go to expert” – the one who could deliver a conviction where others failed. By the time she was fired in 2001, her fraudulent testimony had sent at least three innocent men to prison, including two to death row. Hundreds of her other cases are still under investigation by the authorities.
• Fred Zain was chief of serology – blood science – at the West Virginia State Police lab, where he was implicated in hundreds of cases of fraud and perjury. He went on to pursue his ignominious career in San Antonio, Texas – where he died while perjury charges were pending – but only after he was named West Virginia State Trooper of the Year. Zain’s fraudulent testimony sent at least five innocent people to prison.
Systematic fraud is only the most extreme problem with police-run crime labs. After the police arrest a suspect, their job is to get him convicted. This applies to everybody in the police department: We all believe in our own teams and want to help them win. This can lead the most honest investigators to misinterpret evidence and to reach conclusions that are consistent with their initial beliefs.
Worse, this type of tunnel vision causes lab workers to ignore evidence that points to other suspects. Fingerprints that were left by some unknown person – or blood with DNA that doesn’t match the suspect – may seem unimportant when you’re focused on getting a conviction. The Innocence Project has documented scores of cases around the country, including at least three in Michigan, in which innocent defendants were convicted while physical evidence pointing to the real criminals was ignored or discounted.
Physical evidence - unlike witness testimony – offers the promise of an objective truth free from the taint of human bias and error. It is as important for the defense in criminal cases as for the prosecution. Fingerprints, blood, semen, guns, bullets and drugs can all provide highly reliable evidence of a defendant’s guilt – or of his innocence – if they are properly collected, stored and tested. If not, there may never be a second chance to do it right.
We need crime lab investigators who do their work with scrupulous care without regard to the suspicions or beliefs of the police. We need labs to be open to defense attorneys as well as prosecutors. We need independent, science-driven crime labs rather than labs run by police departments.
David A. Moran and Samuel R. Gross are professors at the University of Michigan Law School. Moran is also co-director of the Michigan Innocence Clinic.
Thursday, October 30, 2008
Guest Shot: The case for videotaping interrogations
The following opinion was originally published in the Los Angeles Times on October 24, 2008
The case for videotaping interrogations
A suspect's false confession to a murder opened an officer's eyes.
By Jim Trainum
October 24, 2008
I've been a police officer for 25 years, and I never understood why someone would admit to a crime he or she didn't commit. Until I secured a false confession in a murder case.
I stepped into the interrogation room believing that we had evidence linking the suspect to the murder of a 34-year-old federal employee in Washington. I used standard, approved interrogation techniques -- no screaming or threats, no physical abuse, no 12-hour sessions without food or water. Many hours later, I left with a solid confession.
At first, the suspect couldn't tell us anything about the murder, and she professed her innocence. As the interrogation progressed, she became more cooperative, and her confession included many details of the crime. The suspect said she had beaten the man to death and dumped his body by a river. She said she made purchases with the victim's credit card and tried to withdraw cash using his ATM card. Surveillance video from the ATM showed a woman who resembled the suspect, and an expert said the signature on the credit card receipts was consistent with the suspect's handwriting.
Even the suspect's attorney later told me that she believed her client was guilty, based on the confession. Confident in our evidence and the confession, we charged her with first-degree murder.
Then we discovered that the suspect had an ironclad alibi. We subpoenaed sign-in/sign-out logs from the homeless shelter where she lived, and the records proved that she could not have committed the crime. The case was dismissed, but all of us still believed she was involved in the murder. After all, she had confessed.
Even though it wasn't our standard operating procedure in the mid-1990s, when the crime occurred, we had videotaped the interrogation in its entirety. Reviewing the tapes years later, I saw that we had fallen into a classic trap. We ignored evidence that our suspect might not have been guilty, and during the interrogation we inadvertently fed her details of the crime that she repeated back to us in her confession.
If we hadn't discovered and verified the suspect's alibi -- or if we hadn't recorded the interrogation -- she probably would have been convicted of first-degree murder and would be in prison today. The true perpetrator of the crime was never identified, partly because the investigation was derailed when we focused on an innocent person.
The case was a turning point for me, personally and professionally. I still work as a police officer in Washington, but I also teach a class on interrogations and false confessions, and I work with law enforcement agencies nationwide to help them prevent false confessions.
I've learned that this is a nationwide problem. Of the 220 wrongful convictions in the U.S. that have been overturned based on DNA evidence, nearly 25% involved a false confession or false incriminating statements, according to the Innocence Project. In each of those cases, DNA proved that the confession was false.
Threats and coercion sometimes lead innocent people to confess, but even the calmest, most standardized interrogations can lead to a false confession or admission. Those who are mentally ill or mentally disabled may be particularly vulnerable, but anyone can be dazed when confronted by police officers who claim to hold unshakable evidence of one's guilt. Some confess to crimes because they want to please authority figures or to protect another person. Some actually come to believe they are guilty, or confess to do penance for some unrelated bad behavior. Innocent people come to believe that they will receive a harsher sentence -- even the death penalty -- if they don't confess.
Videotaping interrogations is proved to decrease wrongful convictions based on false confessions. When the entire interrogation is recorded, attorneys, judges and juries can see exactly what led to a confession. Police officers become better interviewers over time, as they review tapes of their interrogations, and confessions are easier to defend in court. The only police officers I've met who don't embrace recording interrogations are those who have never done it. Too many police officers still wrongly believe that recording interrogations will be logistically difficult and expensive, and that guilty suspects won't confess if they know they are being recorded.
More than 500 jurisdictions nationwide record interrogations, but only 10 states, plus the District of Columbia, mandate the practice. California's Legislature passed bills in 2006 and 2007 that would have required interrogations to be recorded. Both were vetoed by Gov. Arnold Schwarzenegger. A third bill died in committee this year. California legislators should not give up. They must make this issue a priority and pass legislation to make our criminal justice system stronger and more accurate.
It may be impossible to fully understand why innocent people confess to crimes they didn't commit. What is undeniable is that some do -- and that we need to enact reforms to prevent more wrongful convictions and ensure that the right people pay for these crimes.
Jim Trainum is a detective in Washington's Metropolitan Police Department.
The case for videotaping interrogations
A suspect's false confession to a murder opened an officer's eyes.
By Jim Trainum
October 24, 2008
I've been a police officer for 25 years, and I never understood why someone would admit to a crime he or she didn't commit. Until I secured a false confession in a murder case.
I stepped into the interrogation room believing that we had evidence linking the suspect to the murder of a 34-year-old federal employee in Washington. I used standard, approved interrogation techniques -- no screaming or threats, no physical abuse, no 12-hour sessions without food or water. Many hours later, I left with a solid confession.
At first, the suspect couldn't tell us anything about the murder, and she professed her innocence. As the interrogation progressed, she became more cooperative, and her confession included many details of the crime. The suspect said she had beaten the man to death and dumped his body by a river. She said she made purchases with the victim's credit card and tried to withdraw cash using his ATM card. Surveillance video from the ATM showed a woman who resembled the suspect, and an expert said the signature on the credit card receipts was consistent with the suspect's handwriting.
Even the suspect's attorney later told me that she believed her client was guilty, based on the confession. Confident in our evidence and the confession, we charged her with first-degree murder.
Then we discovered that the suspect had an ironclad alibi. We subpoenaed sign-in/sign-out logs from the homeless shelter where she lived, and the records proved that she could not have committed the crime. The case was dismissed, but all of us still believed she was involved in the murder. After all, she had confessed.
Even though it wasn't our standard operating procedure in the mid-1990s, when the crime occurred, we had videotaped the interrogation in its entirety. Reviewing the tapes years later, I saw that we had fallen into a classic trap. We ignored evidence that our suspect might not have been guilty, and during the interrogation we inadvertently fed her details of the crime that she repeated back to us in her confession.
If we hadn't discovered and verified the suspect's alibi -- or if we hadn't recorded the interrogation -- she probably would have been convicted of first-degree murder and would be in prison today. The true perpetrator of the crime was never identified, partly because the investigation was derailed when we focused on an innocent person.
The case was a turning point for me, personally and professionally. I still work as a police officer in Washington, but I also teach a class on interrogations and false confessions, and I work with law enforcement agencies nationwide to help them prevent false confessions.
I've learned that this is a nationwide problem. Of the 220 wrongful convictions in the U.S. that have been overturned based on DNA evidence, nearly 25% involved a false confession or false incriminating statements, according to the Innocence Project. In each of those cases, DNA proved that the confession was false.
Threats and coercion sometimes lead innocent people to confess, but even the calmest, most standardized interrogations can lead to a false confession or admission. Those who are mentally ill or mentally disabled may be particularly vulnerable, but anyone can be dazed when confronted by police officers who claim to hold unshakable evidence of one's guilt. Some confess to crimes because they want to please authority figures or to protect another person. Some actually come to believe they are guilty, or confess to do penance for some unrelated bad behavior. Innocent people come to believe that they will receive a harsher sentence -- even the death penalty -- if they don't confess.
Videotaping interrogations is proved to decrease wrongful convictions based on false confessions. When the entire interrogation is recorded, attorneys, judges and juries can see exactly what led to a confession. Police officers become better interviewers over time, as they review tapes of their interrogations, and confessions are easier to defend in court. The only police officers I've met who don't embrace recording interrogations are those who have never done it. Too many police officers still wrongly believe that recording interrogations will be logistically difficult and expensive, and that guilty suspects won't confess if they know they are being recorded.
More than 500 jurisdictions nationwide record interrogations, but only 10 states, plus the District of Columbia, mandate the practice. California's Legislature passed bills in 2006 and 2007 that would have required interrogations to be recorded. Both were vetoed by Gov. Arnold Schwarzenegger. A third bill died in committee this year. California legislators should not give up. They must make this issue a priority and pass legislation to make our criminal justice system stronger and more accurate.
It may be impossible to fully understand why innocent people confess to crimes they didn't commit. What is undeniable is that some do -- and that we need to enact reforms to prevent more wrongful convictions and ensure that the right people pay for these crimes.
Jim Trainum is a detective in Washington's Metropolitan Police Department.
Sunday, October 26, 2008
Troy Davis - A Reprieve
The 11th Circuit Court of Appeals in Atlanta, GA has issued a stay of Troy Davis' execution, which had been scheduled for Monday, October 27, 2008. This is the latest twist in a roller-coaster ride of stays and denials in his case. The stay allows Troy to pursue a federal habeas corpus action based on his actual innocence. The Antiterrorism and Effective Death Penalty Act of 1996 requires a federal appeals court to approve such a request before a new lawsuit can be filed.
Troy's legal claims rest on the recantations of seven of the prosecutions nine trial witnesses. In 1989, they said Troy killed an off-duty Savannah police officer. In 2008, they say police coerced their identification of Troy, and that one of the two non-recanting witnesses is the actual killer. Courts are understandably reluctant to believe recantations. If the witness lied under oath before, how can he or she be believed now? Nonetheless, many wrongful convictions have been overturned precisely because judges listened to recanting witnesses, found them credible and found their reasons for lying in the first place (often police coercion) persuasive.
But Georgia state law has a "catch-22" that raises the bar even higher and prevents most recantations from ever being heard by a judge. It's called the "purest fabrication" doctrine and it denies hearings even when extremely persuasive recantation affidavits have been submitted. The "purest fabrication" doctrine means that post-conviction hearings don't have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by other, independent proof before the hearing is held, that the original testimony was absolutely false.
The stay granted to Troy by the 11th Circuit is conditional, and there is no guarantee he will be allowed to move forward with a habeas petition. Before his lawyers can file a habeas petition, they must clear two difficult legal hurdles in briefs they are to file with the 11th Circuit.
First, they must show that his lawyers could not have previously found the new evidence supporting his innocence no matter how diligently they looked for it. And they must show that the new testimony, viewed in light of all the evidence, is enough to prove “by clear and convincing evidence that…no reasonable fact finder would have found [him] guilty.”
The 11th Circuit added a twist. It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard but cannot satisfy his burden under the first, due-diligence question.
In other words, should an innocent person be killed by the state because his trial lawyers failed to find evidence of his innocence before he was convicted?
Troy's legal claims rest on the recantations of seven of the prosecutions nine trial witnesses. In 1989, they said Troy killed an off-duty Savannah police officer. In 2008, they say police coerced their identification of Troy, and that one of the two non-recanting witnesses is the actual killer. Courts are understandably reluctant to believe recantations. If the witness lied under oath before, how can he or she be believed now? Nonetheless, many wrongful convictions have been overturned precisely because judges listened to recanting witnesses, found them credible and found their reasons for lying in the first place (often police coercion) persuasive.
But Georgia state law has a "catch-22" that raises the bar even higher and prevents most recantations from ever being heard by a judge. It's called the "purest fabrication" doctrine and it denies hearings even when extremely persuasive recantation affidavits have been submitted. The "purest fabrication" doctrine means that post-conviction hearings don't have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by other, independent proof before the hearing is held, that the original testimony was absolutely false.
The stay granted to Troy by the 11th Circuit is conditional, and there is no guarantee he will be allowed to move forward with a habeas petition. Before his lawyers can file a habeas petition, they must clear two difficult legal hurdles in briefs they are to file with the 11th Circuit.
First, they must show that his lawyers could not have previously found the new evidence supporting his innocence no matter how diligently they looked for it. And they must show that the new testimony, viewed in light of all the evidence, is enough to prove “by clear and convincing evidence that…no reasonable fact finder would have found [him] guilty.”
The 11th Circuit added a twist. It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard but cannot satisfy his burden under the first, due-diligence question.
In other words, should an innocent person be killed by the state because his trial lawyers failed to find evidence of his innocence before he was convicted?
Tuesday, October 21, 2008
Guest Shot: Troy Davis case: Execution clearly would be callous act
This opinion was originally published in the Atlanta Journal-Constitution on October 21, 2008.
Troy Davis case: Execution clearly would be callous act
By VINCENT FORT
Tuesday, October 21, 2008
Georgians are known for their fairness, faith and decency. Unfortunately, Georgians may become known for something that runs directly counter to our core values if we proceed with the execution of Troy Anthony Davis on Monday. I have served on the state Senate Judiciary Committee for 12 years, and while I am opposed to the death penalty, even supporters can agree that we do not want to see an innocent person executed.
Last Tuesday, the U.S. Supreme Court declined to consider if the death penalty should be barred in cases where there are substantial claims of innocence when it turned aside the appeal of Davis, an inmate on Georgia’s death row.
Justice is not served when the courts refuse to hear substantial claims of innocence. In Davis’ case, such claims have never been given a fair hearing in a court of law as a result of procedural bars.
Grave doubts permeate Davis’ case. In the years following his conviction, seven of the state’s nine non-police witnesses have recanted in sworn affidavits or changed their testimonies. Several have cited police coercion at the time of the crime. No court has ever heard testimony from the individuals who came forward after conviction alleging that one of the state’s original eyewitnesses is the actual killer of Officer Mark MacPhail.
No physical evidence tied Davis to the crime and a weapon was never found. He was convicted solely on the basis of faulty eyewitness testimony — the single greatest cause of wrongful convictions nationwide. Eyewitness misidentification accounted for 75 percent of wrongful convictions in more than 200 DNA exonerations.
Georgians have become aware of just how unreliable eyewitness identification evidence is as we have watched seven men exonerated — all convicted on the basis of eyewitness testimony — after spending years in prison for crimes they didn’t commit.
Willie Otis “Pete” Williams is one of those men. Williams spent nearly 22 years in prison for crimes he didn’t commit. Three people testified on the witness stand that he was the attacker in two separate incidents, one of which was a brutal rape. When asked of her certainty after identifying him, the survivor of the rape reported that she was 120 percent sure that she had picked out the right man. However, DNA evidence proved these identifications were incorrect.
Some states are beginning to move away from the death penalty because of growing concerns about innocence, unfairness, discriminatory application, lack of efficacy and other reasons. The death penalty was intended to be reserved for the worst offenders, but in practice, it is arbitrary and unfair. The system is fraught with error, plagued by poor legal representation, and discriminates on the basis of income, race and geography. Since executions resumed in May, all but one has been carried out in the South.
By choosing not to hear Davis’ claims, the U.S. Supreme Court and the Georgia state courts ostensibly declared that it is permissible to execute a convicted person who could likely prove his innocence. This is a standard civilized society should not accept.
It will be a travesty of justice for Georgia and our nation if an innocent person is executed. Proceeding with the execution of Troy Davis is callous, careless and irreversible.
Vincent Fort, a Democrat, represents Senate Dist. 39 in Atlanta.
Troy Davis case: Execution clearly would be callous act
By VINCENT FORT
Tuesday, October 21, 2008
Georgians are known for their fairness, faith and decency. Unfortunately, Georgians may become known for something that runs directly counter to our core values if we proceed with the execution of Troy Anthony Davis on Monday. I have served on the state Senate Judiciary Committee for 12 years, and while I am opposed to the death penalty, even supporters can agree that we do not want to see an innocent person executed.
Last Tuesday, the U.S. Supreme Court declined to consider if the death penalty should be barred in cases where there are substantial claims of innocence when it turned aside the appeal of Davis, an inmate on Georgia’s death row.
Justice is not served when the courts refuse to hear substantial claims of innocence. In Davis’ case, such claims have never been given a fair hearing in a court of law as a result of procedural bars.
Grave doubts permeate Davis’ case. In the years following his conviction, seven of the state’s nine non-police witnesses have recanted in sworn affidavits or changed their testimonies. Several have cited police coercion at the time of the crime. No court has ever heard testimony from the individuals who came forward after conviction alleging that one of the state’s original eyewitnesses is the actual killer of Officer Mark MacPhail.
No physical evidence tied Davis to the crime and a weapon was never found. He was convicted solely on the basis of faulty eyewitness testimony — the single greatest cause of wrongful convictions nationwide. Eyewitness misidentification accounted for 75 percent of wrongful convictions in more than 200 DNA exonerations.
Georgians have become aware of just how unreliable eyewitness identification evidence is as we have watched seven men exonerated — all convicted on the basis of eyewitness testimony — after spending years in prison for crimes they didn’t commit.
Willie Otis “Pete” Williams is one of those men. Williams spent nearly 22 years in prison for crimes he didn’t commit. Three people testified on the witness stand that he was the attacker in two separate incidents, one of which was a brutal rape. When asked of her certainty after identifying him, the survivor of the rape reported that she was 120 percent sure that she had picked out the right man. However, DNA evidence proved these identifications were incorrect.
Some states are beginning to move away from the death penalty because of growing concerns about innocence, unfairness, discriminatory application, lack of efficacy and other reasons. The death penalty was intended to be reserved for the worst offenders, but in practice, it is arbitrary and unfair. The system is fraught with error, plagued by poor legal representation, and discriminates on the basis of income, race and geography. Since executions resumed in May, all but one has been carried out in the South.
By choosing not to hear Davis’ claims, the U.S. Supreme Court and the Georgia state courts ostensibly declared that it is permissible to execute a convicted person who could likely prove his innocence. This is a standard civilized society should not accept.
It will be a travesty of justice for Georgia and our nation if an innocent person is executed. Proceeding with the execution of Troy Davis is callous, careless and irreversible.
Vincent Fort, a Democrat, represents Senate Dist. 39 in Atlanta.
Wednesday, October 15, 2008
Guest Shot: The Long Road To The Davis Case
The following opinion was published on October 14, 2008 at http://www.cbsnews.com/
The Long Road To The Davis Case
Andrew Cohen Examines A Ga. Murder Case That May Send An Innocent Man To His Death
(Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com)
The decades-long, law-and-order-fueled trend toward restricting appellate avenues in criminal cases may be reaching its gruesome but inevitable conclusion in the case of Troy Davis, a death row inmate who apparently will be executed soon despite a series of post-trial revelations about his lack of culpability that ought to shock the conscience of even the most ardent supports of capital punishment.
Davis, who is black, was charged, tried and convicted in Georgia for murdering a white police officer. He was sentenced to death in 1991. There was no physical evidence linking him to the crime. There was no DNA. There was no murder weapon found on him. Since his trial, seven of the nine main prosecution eyewitnesses against him have recanted their trial testimony. Some of these witnesses claim police coercion or harsh interrogation tactics caused them to be untruthful at trial.
Moreover, a handful of witnesses have stepped forward to claim that another man has confessed to the crime. This “other man,” according to the Atlanta Journal-Constitution, is one of the two remaining trial witnesses who, not surprisingly, still claims that Davis shot the officer. The final eyewitness (of the nine we are concerned with) initially told the police that he could not identify Davis at the crime scene before later changing his tune at trial and incriminating Davis. Even during this new age of DNA there has been no great movement to resolve these legal and factual conflicts.
Short of seeing a videotape of that other fellow’s confession, it’s hard to imagine a scenario that more clearly calls out for a full and independent evidentiary hearing, or even a new trial, to assess the validity of the changed narrative about Davis’ role in the crime. And, indeed, in an earlier time in our history it is quite likely that the federal courts would have ensured such a review. No more. The highly-politicized, step-by-step closing of the courthouse doors to appeals like this-the intentional restriction of meaningful appeals rights-may send an innocent man to his death.
When Davis’ appeal on these issues made it to the Georgia Supreme Court the judges there denied him any relief and declared in a 4-3 vote that there must be “no doubt of any kind” but that the trial testimony was of the “purest fabrication” in order to warrant interceding on Davis’ behalf. Got that? It takes only the absence of “reasonable doubt” to convict someone of murder but in Georgia to properly investigate a condemned man’s strong claim of innocence judges have to have “no doubt” at the outset of the inquiry that the inquiry will prove his innocence. How, one dissenting Georgia justice asked, can anyone ever meet such a standard?
It’s a game that Davis can’t win; and that’s precisely how leaders of the anti-appeal movement have wanted it. As the criminal justice system has become more conservative, the courts and the Congress have relentlessly created (or recognized) barriers to meaningful appellate review. The stated reason, of course, has always been to diminish frivolous appeals by prison inmates who have nothing better to do with their time than test the judicial system. But today the barriers are so high that they are keeping beyond the reach of substantive review the sorts of vital questions raised by Davis and his attorneys.
Having lost in Georgia, and at the lower federal court level, the defense then asked the United States Supreme Court to declare that the State violates the Eighth Amendment’s prohibition against cruel and unusual punishment when it executes an innocent man (or doesn’t even hold a full hearing on his strong claims of innocence). At a minimum, the defense believed, the Justices would look closely at the stringent, new “pure fabrication” rule the Georgia High Court came up with in the Davis appeal.
But it isn’t going to happen. The same Supreme Court in Washington, which delayed Davis’ execution last month, announced on Tuesday that it would not, after all, take the case on its merits. This virtually guarantees that Davis will be executed despite the grave doubts about his guilt. There will be no evaluation of the Eighth Amendment in these circumstances; no considered review of the new Georgia rule; no ardent discussion between Justices Scalia and Stevens about when, if ever, a defendant like Davis can ever get that meaningful new look from the courts.
Why the Justices turned away from a case they had sniffed at last month may forever remain a mystery. But what is perfectly clear is that Georgia has now created a virtually unassailable bar to criminal defendants whose shaky convictions are later subverted through the discovery of new evidence or the dissolution of the accuracy, reliability and credibility of important trial evidence. After decades of success, subtle and otherwise, the anti-appeal movement has just now reached its crescendo or, depending upon your point of view, its nadir.
The Long Road To The Davis Case
Andrew Cohen Examines A Ga. Murder Case That May Send An Innocent Man To His Death
(Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com)
The decades-long, law-and-order-fueled trend toward restricting appellate avenues in criminal cases may be reaching its gruesome but inevitable conclusion in the case of Troy Davis, a death row inmate who apparently will be executed soon despite a series of post-trial revelations about his lack of culpability that ought to shock the conscience of even the most ardent supports of capital punishment.
Davis, who is black, was charged, tried and convicted in Georgia for murdering a white police officer. He was sentenced to death in 1991. There was no physical evidence linking him to the crime. There was no DNA. There was no murder weapon found on him. Since his trial, seven of the nine main prosecution eyewitnesses against him have recanted their trial testimony. Some of these witnesses claim police coercion or harsh interrogation tactics caused them to be untruthful at trial.
Moreover, a handful of witnesses have stepped forward to claim that another man has confessed to the crime. This “other man,” according to the Atlanta Journal-Constitution, is one of the two remaining trial witnesses who, not surprisingly, still claims that Davis shot the officer. The final eyewitness (of the nine we are concerned with) initially told the police that he could not identify Davis at the crime scene before later changing his tune at trial and incriminating Davis. Even during this new age of DNA there has been no great movement to resolve these legal and factual conflicts.
Short of seeing a videotape of that other fellow’s confession, it’s hard to imagine a scenario that more clearly calls out for a full and independent evidentiary hearing, or even a new trial, to assess the validity of the changed narrative about Davis’ role in the crime. And, indeed, in an earlier time in our history it is quite likely that the federal courts would have ensured such a review. No more. The highly-politicized, step-by-step closing of the courthouse doors to appeals like this-the intentional restriction of meaningful appeals rights-may send an innocent man to his death.
When Davis’ appeal on these issues made it to the Georgia Supreme Court the judges there denied him any relief and declared in a 4-3 vote that there must be “no doubt of any kind” but that the trial testimony was of the “purest fabrication” in order to warrant interceding on Davis’ behalf. Got that? It takes only the absence of “reasonable doubt” to convict someone of murder but in Georgia to properly investigate a condemned man’s strong claim of innocence judges have to have “no doubt” at the outset of the inquiry that the inquiry will prove his innocence. How, one dissenting Georgia justice asked, can anyone ever meet such a standard?
It’s a game that Davis can’t win; and that’s precisely how leaders of the anti-appeal movement have wanted it. As the criminal justice system has become more conservative, the courts and the Congress have relentlessly created (or recognized) barriers to meaningful appellate review. The stated reason, of course, has always been to diminish frivolous appeals by prison inmates who have nothing better to do with their time than test the judicial system. But today the barriers are so high that they are keeping beyond the reach of substantive review the sorts of vital questions raised by Davis and his attorneys.
Having lost in Georgia, and at the lower federal court level, the defense then asked the United States Supreme Court to declare that the State violates the Eighth Amendment’s prohibition against cruel and unusual punishment when it executes an innocent man (or doesn’t even hold a full hearing on his strong claims of innocence). At a minimum, the defense believed, the Justices would look closely at the stringent, new “pure fabrication” rule the Georgia High Court came up with in the Davis appeal.
But it isn’t going to happen. The same Supreme Court in Washington, which delayed Davis’ execution last month, announced on Tuesday that it would not, after all, take the case on its merits. This virtually guarantees that Davis will be executed despite the grave doubts about his guilt. There will be no evaluation of the Eighth Amendment in these circumstances; no considered review of the new Georgia rule; no ardent discussion between Justices Scalia and Stevens about when, if ever, a defendant like Davis can ever get that meaningful new look from the courts.
Why the Justices turned away from a case they had sniffed at last month may forever remain a mystery. But what is perfectly clear is that Georgia has now created a virtually unassailable bar to criminal defendants whose shaky convictions are later subverted through the discovery of new evidence or the dissolution of the accuracy, reliability and credibility of important trial evidence. After decades of success, subtle and otherwise, the anti-appeal movement has just now reached its crescendo or, depending upon your point of view, its nadir.
Sunday, October 05, 2008
William Coleman Hunger Protest Update, by Geoff Coleman
oday marks the 6th annerversary of the false allegations being made. Bill remains resolute in his protest and has been force fed at least three times. Osborne CI, have not advised us on his condition of health other than to say he is "ok". We suspect that he was force fed on the 3rd October 2008 which would fall in line with previous feed interventions.
Bill`s condition will get worse and it will result in permanent damage. Both Bill and his family and friends do not want him to die and urge for the circumstances surrounding his case to be investigated as well as the allegations itself, as the police and athorities failed to do so.
Please visit his web site which is updated daily.
http://crawldog.com/billcolemaninnocentmanwronfullyconvicted/index.php
Thank you
Bill`s condition will get worse and it will result in permanent damage. Both Bill and his family and friends do not want him to die and urge for the circumstances surrounding his case to be investigated as well as the allegations itself, as the police and athorities failed to do so.
Please visit his web site which is updated daily.
http://crawldog.com/billcolemaninnocentmanwronfullyconvicted/index.php
Thank you
Thursday, October 02, 2008
Oh Canada, Part 2 - Judge's blast not enough, wrongfully convicted man says
Originally published by members of the Canadian Press on October 2, 2008.
Judge's blast not enough, wrongfully convicted man says
October 2, 2008
TORONTO — A judicial report's damning criticism of key players in a forensics scandal that saw innocent people branded as child killers in Ontario doesn't go far enough, a victim of wrongful conviction said Wednesday.
While the report found the failings of an "arrogant" forensic pathologist and his bosses were at the heart of the miscarriages of justice, William Mullins-Johnson said those responsible need to be held to further account.
"If they can't, then this whole thing of restoring public confidence goes for naught," said Mullins-Johnson, 38, who spent 12 years in jail for the rape and suffocation of his niece, who actually died of natural causes.
"They invented a crime. They pulled it out of their head and said, 'This guy is guilty of this.' "
Stephen Goudge's findings and 169 recommendations do offer a "little" comfort, said Mullins-Johnson, who added that his horrendous experience still gets "under his skin."
In blunt terms, Goudge's 1,000-page report slams Dr. Charles Smith, the once esteemed pathologist, as well as Ontario's former chief coroner James Young and his deputy, Jim Cairns.
All three played a critical role in wrongful prosecutions that ripped families apart and damaged lives, Goudge concludes.
His assessment of Smith, based on months of evidence, is especially harsh.
The former star in his field "admitted his own arrogance" and dogmatically presented poorly informed and undisciplined opinions on which others relied, Goudge wrote.
The doctor also deliberately frustrated attempts to call him to account and "actively misled" his superiors and the courts.
"Smith was adamant that his failings were never intentional," Goudge wrote.
"I simply cannot accept such a sweeping attempt to escape moral responsibility."
Smith was not on hand for the release, but said in a brief written statement he was "optimistic" the report would have a "positive impact" on pediatric forensic pathology in Ontario.
Goudge, who made no findings of criminal or civil liability, called on the Ontario government to consider compensation for those affected by Smith's work, something the province said it would do.
"Justice Goudge recommends that we develop an approach to compensation, and that is what we will do," said Attorney General Chris Bentley, who added an expert panel would be struck to study the issue.
The judge, however, was careful to note that Smith did not work in a vacuum.
The tragic story is "equally the story of failed oversight," he said, taking aim at Young and Cairns.
Having developed a "symbiotic" relationship with the province's former chief forensic pathologist, they allowed their blind confidence in Smith to persist until the very end and "after much damage had been done."
Despite the poorly defined legislative framework in which he worked, Young must bear the "ultimate responsibility for the failure of oversight," the Ontario Court of Appeal justice concludes.
"Dr. Young continued to defend the indefensible in the name of saving the reputation of the (coroner's office)," Goudge wrote.
"When he finally did act, it was to protect the reputation of the office and not out of concern that individuals and the public interest may already have been harmed."
It was, the report states, "far too little, far too late" and occurred after a decade of "lost opportunities" to fix the situation.
By then, Smith had erroneously concluded a mother had killed her 11-month-old son who had knocked his head on a table, and in another case, insisted a mother had stabbed her seven-year-old daughter to death - when a dog-mauling was responsible.
To minimize the chances of such travesties, Goudge makes recommendations aimed at the training, oversight and accountability of pediatric forensic pathology.
Among other things, he calls for accredited training at Canadian medical schools to certify forensic pathologists.
He also wants the province to create a clear legislative framework for forensic pathologists, along with establishing a specialized forensics unit, a council to oversee the chief coroner's office, and the position of chief forensic pathologist.
Goudge called on the government to provide more money and resources for the forensics field, something he noted was especially needed in more remote and First Nations areas.
The government promised to bring in fresh legislation in line with Goudge's suggestions.
Premier Dalton McGuinty said the province was keen to restore public confidence in its battered pathology system.
"A tragedy has unfolded here in Ontario and we're looking for ways to move beyond that and to redress the wrongs," McGuinty said. "We need to turn the page."
Community Safety Minister Rick Bartolucci apologized on behalf of the province.
Several of Goudge's other recommendations amount to a warning to forensic pathologists to guard against overstepping the limits of their expertise, and to explain complicated findings in unambiguous language.
He urged specialized training for police and prosecutors in pediatric death investigations, and called on trial judges to be critical of expert witnesses.
Gouge also recommended that more than 140 other cases involving forensic pathology be reviewed.
Bentley said the government would move as quickly as it can on the reviews "for those who live in the shadow of suspicion."
When asked if any criminal charges could follow Goudge's report, Bentley said that would be up to the police.
Lawyer James Lockyer, of the Association in the Defence of the Wrongfully Convicted, said that the report would help set aside some miscarriages of justice that have occurred, and would "go a long way" to preventing future wrongful prosecutions.
The findings represent a devastating blow to Smith, once admired across the country for his expertise.
But they might also tarnish the sterling reputation that Young has enjoyed.
The former chief coroner was instrumental in helping lead Ontario's response to the SARS crisis in 2003 and to the huge blackout in August of that year.
He later became a special adviser to the federal deputy minister of public safety.
-------
For more information about Dr. Charles Smith, his victims and the Goudge Report, see the Charles Smith Blog.
Judge's blast not enough, wrongfully convicted man says
October 2, 2008
TORONTO — A judicial report's damning criticism of key players in a forensics scandal that saw innocent people branded as child killers in Ontario doesn't go far enough, a victim of wrongful conviction said Wednesday.
While the report found the failings of an "arrogant" forensic pathologist and his bosses were at the heart of the miscarriages of justice, William Mullins-Johnson said those responsible need to be held to further account.
"If they can't, then this whole thing of restoring public confidence goes for naught," said Mullins-Johnson, 38, who spent 12 years in jail for the rape and suffocation of his niece, who actually died of natural causes.
"They invented a crime. They pulled it out of their head and said, 'This guy is guilty of this.' "
Stephen Goudge's findings and 169 recommendations do offer a "little" comfort, said Mullins-Johnson, who added that his horrendous experience still gets "under his skin."
In blunt terms, Goudge's 1,000-page report slams Dr. Charles Smith, the once esteemed pathologist, as well as Ontario's former chief coroner James Young and his deputy, Jim Cairns.
All three played a critical role in wrongful prosecutions that ripped families apart and damaged lives, Goudge concludes.
His assessment of Smith, based on months of evidence, is especially harsh.
The former star in his field "admitted his own arrogance" and dogmatically presented poorly informed and undisciplined opinions on which others relied, Goudge wrote.
The doctor also deliberately frustrated attempts to call him to account and "actively misled" his superiors and the courts.
"Smith was adamant that his failings were never intentional," Goudge wrote.
"I simply cannot accept such a sweeping attempt to escape moral responsibility."
Smith was not on hand for the release, but said in a brief written statement he was "optimistic" the report would have a "positive impact" on pediatric forensic pathology in Ontario.
Goudge, who made no findings of criminal or civil liability, called on the Ontario government to consider compensation for those affected by Smith's work, something the province said it would do.
"Justice Goudge recommends that we develop an approach to compensation, and that is what we will do," said Attorney General Chris Bentley, who added an expert panel would be struck to study the issue.
The judge, however, was careful to note that Smith did not work in a vacuum.
The tragic story is "equally the story of failed oversight," he said, taking aim at Young and Cairns.
Having developed a "symbiotic" relationship with the province's former chief forensic pathologist, they allowed their blind confidence in Smith to persist until the very end and "after much damage had been done."
Despite the poorly defined legislative framework in which he worked, Young must bear the "ultimate responsibility for the failure of oversight," the Ontario Court of Appeal justice concludes.
"Dr. Young continued to defend the indefensible in the name of saving the reputation of the (coroner's office)," Goudge wrote.
"When he finally did act, it was to protect the reputation of the office and not out of concern that individuals and the public interest may already have been harmed."
It was, the report states, "far too little, far too late" and occurred after a decade of "lost opportunities" to fix the situation.
By then, Smith had erroneously concluded a mother had killed her 11-month-old son who had knocked his head on a table, and in another case, insisted a mother had stabbed her seven-year-old daughter to death - when a dog-mauling was responsible.
To minimize the chances of such travesties, Goudge makes recommendations aimed at the training, oversight and accountability of pediatric forensic pathology.
Among other things, he calls for accredited training at Canadian medical schools to certify forensic pathologists.
He also wants the province to create a clear legislative framework for forensic pathologists, along with establishing a specialized forensics unit, a council to oversee the chief coroner's office, and the position of chief forensic pathologist.
Goudge called on the government to provide more money and resources for the forensics field, something he noted was especially needed in more remote and First Nations areas.
The government promised to bring in fresh legislation in line with Goudge's suggestions.
Premier Dalton McGuinty said the province was keen to restore public confidence in its battered pathology system.
"A tragedy has unfolded here in Ontario and we're looking for ways to move beyond that and to redress the wrongs," McGuinty said. "We need to turn the page."
Community Safety Minister Rick Bartolucci apologized on behalf of the province.
Several of Goudge's other recommendations amount to a warning to forensic pathologists to guard against overstepping the limits of their expertise, and to explain complicated findings in unambiguous language.
He urged specialized training for police and prosecutors in pediatric death investigations, and called on trial judges to be critical of expert witnesses.
Gouge also recommended that more than 140 other cases involving forensic pathology be reviewed.
Bentley said the government would move as quickly as it can on the reviews "for those who live in the shadow of suspicion."
When asked if any criminal charges could follow Goudge's report, Bentley said that would be up to the police.
Lawyer James Lockyer, of the Association in the Defence of the Wrongfully Convicted, said that the report would help set aside some miscarriages of justice that have occurred, and would "go a long way" to preventing future wrongful prosecutions.
The findings represent a devastating blow to Smith, once admired across the country for his expertise.
But they might also tarnish the sterling reputation that Young has enjoyed.
The former chief coroner was instrumental in helping lead Ontario's response to the SARS crisis in 2003 and to the huge blackout in August of that year.
He later became a special adviser to the federal deputy minister of public safety.
-------
For more information about Dr. Charles Smith, his victims and the Goudge Report, see the Charles Smith Blog.
Oh Canada, Part 1 - Mom's the word: Milgaard ruling incomprehensible
This opinion was originally published in the Calgary Herald on October 1, 2008.
Mom's the word: Milgaard ruling incomprehensible
"If it was your child, what would you do?"
Naomi Lakritz
Calgary Herald
Wednesday, October 01, 2008
When Justice Edward MacCallum issued his report last week on David Milgaard's wrongful conviction, he accused David's mother, Joyce, of "using" the media to further her son's cause. Well, looking back now, as a former reporter for a Winnipeg newspaper, who covered Joyce's numerous press conferences, wrote stories about her battle to free her son, and was at the prison gates the day David was released, all I can think of is the line from that Bill Withers' song: "If it feels this good being used . . ."
Judge MacCallum, what do you think Joyce should have done? Sit at home and keep quiet, hoping that just by chance, someone might notice David was in prison for a crime he didn't commit? Write courteous letters to Saskatchewan justice officials and be written off by them in turn as one of the many cranks out there?
There isn't a mother in Canada who doesn't understand what Joyce did and why she went about it the way she did. You fight. How could you not? Doing anything less simply doesn't occur to you. The son who is wrongly convicted as a teen doesn't exit the gate of Stony Mountain penitentiary until he is a man of 40, but he is finally free. I ask you, Judge MacCallum, what should Joyce have done differently?
"(MacCallum) didn't say," Joyce says, reached in Toronto Tuesday. The report gave the impression that "nobody did anything wrong, except me. We were the bad guys. It was hurtful. It was hard to read those statements."
Joyce calls the inquiry a waste of time, except for its recommendations, which include the establishment of an independent review board for wrongful conviction cases.
"My whole purpose was to thank the media. I wouldn't have gotten David out if it weren't for the media," Joyce says. "If it was your child, what would you do?"
The road to Stony Mountain prison runs past a large pond and winds up the hill to the forbidding limestone edifice at the top. The prison has been there since 1876. The road to the gate borders a field where, during David's time behind bars, the inmates at Rockwood, the prison's minimum security section, raised a herd of beef cattle.
School Road, in the town of Stony Mountain, borders the other side of the prison. School Road is lined by a day-care centre, curling rink, cemetery and K-8 school -- all within almost shouting distance of the prison. In the field between the prison and school, thick with mosquitoes in summer, the Canada Day fireworks display is held.
The prison's proximity means town residents can hear the guards issuing mundane orders to the inmates about exercise period being over, or that so-and-so is to report to the kitchen. It also means that officials have had periodic trouble with "throw-overs" -- drug packages tossed over the prison fence by the friends of inmates who hide in the wooded lots of homeowners along School Road.
In 1992, the Supreme Court quashed David's conviction for the 1969 murder of Saskatoon nurse Gail Miller, and he walked through those prison gates into a crowd of media, supporters and lawyers, pale, fragile, and understandably inarticulate at his newfound freedom. A few years later, DNA evidence exonerated him once and for all.
In June 2007, Joyce spoke on the occasion of receiving an honorary doctor of laws degree from the University of Winnipeg: "During the 30 years it took to get David cleared and compensated, I spent a great deal of time in prayer. I talked to God a lot. I remember once reading in our textbook, 'Trials are proofs of God's care' and I said to God, 'I just wish you wouldn't care so much!' But He did and He does, and I learned to trust Him and to see a higher purpose in what we went through."
Joyce's purpose all those years was expressed in three words on the signs plastered to her car, and on the buttons that studded her purse and were pinned to her coat. Those three words were: "Free David Milgaard." No thanks to the justice system, David is free.
"I think he's done wonderfully well. To see him come out of this has been wonderful," Joyce says. Part of David's journey included a trip to Brazil where he was deeply moved by the suffering of the poor. "This was his way of healing," she says. He's also written a book of poetry.
The last time I went home to Manitoba, I drove past Stony Mountain prison on my way to visit friends in the town. Everything is just as it was -- the road leading up to the gate, the tranquil pond with birds soaring above, the barbed wire fences, the prison watchtowers, the drive along School Road, and the prairie stretching away to the horizon, as if it couldn't distance itself fast enough or far enough from the ugly yellow prison on the hill. David Milgaard would still be in there, if it weren't for his mother.
How MacCallum can castigate her is incomprehensible. Joyce Milgaard is the kind of mother we all wish we had -- and one we fervently hope we're never called on to be.
nlakritz@theherald.canwest.com
Mom's the word: Milgaard ruling incomprehensible
"If it was your child, what would you do?"
Naomi Lakritz
Calgary Herald
Wednesday, October 01, 2008
When Justice Edward MacCallum issued his report last week on David Milgaard's wrongful conviction, he accused David's mother, Joyce, of "using" the media to further her son's cause. Well, looking back now, as a former reporter for a Winnipeg newspaper, who covered Joyce's numerous press conferences, wrote stories about her battle to free her son, and was at the prison gates the day David was released, all I can think of is the line from that Bill Withers' song: "If it feels this good being used . . ."
Judge MacCallum, what do you think Joyce should have done? Sit at home and keep quiet, hoping that just by chance, someone might notice David was in prison for a crime he didn't commit? Write courteous letters to Saskatchewan justice officials and be written off by them in turn as one of the many cranks out there?
There isn't a mother in Canada who doesn't understand what Joyce did and why she went about it the way she did. You fight. How could you not? Doing anything less simply doesn't occur to you. The son who is wrongly convicted as a teen doesn't exit the gate of Stony Mountain penitentiary until he is a man of 40, but he is finally free. I ask you, Judge MacCallum, what should Joyce have done differently?
"(MacCallum) didn't say," Joyce says, reached in Toronto Tuesday. The report gave the impression that "nobody did anything wrong, except me. We were the bad guys. It was hurtful. It was hard to read those statements."
Joyce calls the inquiry a waste of time, except for its recommendations, which include the establishment of an independent review board for wrongful conviction cases.
"My whole purpose was to thank the media. I wouldn't have gotten David out if it weren't for the media," Joyce says. "If it was your child, what would you do?"
The road to Stony Mountain prison runs past a large pond and winds up the hill to the forbidding limestone edifice at the top. The prison has been there since 1876. The road to the gate borders a field where, during David's time behind bars, the inmates at Rockwood, the prison's minimum security section, raised a herd of beef cattle.
School Road, in the town of Stony Mountain, borders the other side of the prison. School Road is lined by a day-care centre, curling rink, cemetery and K-8 school -- all within almost shouting distance of the prison. In the field between the prison and school, thick with mosquitoes in summer, the Canada Day fireworks display is held.
The prison's proximity means town residents can hear the guards issuing mundane orders to the inmates about exercise period being over, or that so-and-so is to report to the kitchen. It also means that officials have had periodic trouble with "throw-overs" -- drug packages tossed over the prison fence by the friends of inmates who hide in the wooded lots of homeowners along School Road.
In 1992, the Supreme Court quashed David's conviction for the 1969 murder of Saskatoon nurse Gail Miller, and he walked through those prison gates into a crowd of media, supporters and lawyers, pale, fragile, and understandably inarticulate at his newfound freedom. A few years later, DNA evidence exonerated him once and for all.
In June 2007, Joyce spoke on the occasion of receiving an honorary doctor of laws degree from the University of Winnipeg: "During the 30 years it took to get David cleared and compensated, I spent a great deal of time in prayer. I talked to God a lot. I remember once reading in our textbook, 'Trials are proofs of God's care' and I said to God, 'I just wish you wouldn't care so much!' But He did and He does, and I learned to trust Him and to see a higher purpose in what we went through."
Joyce's purpose all those years was expressed in three words on the signs plastered to her car, and on the buttons that studded her purse and were pinned to her coat. Those three words were: "Free David Milgaard." No thanks to the justice system, David is free.
"I think he's done wonderfully well. To see him come out of this has been wonderful," Joyce says. Part of David's journey included a trip to Brazil where he was deeply moved by the suffering of the poor. "This was his way of healing," she says. He's also written a book of poetry.
The last time I went home to Manitoba, I drove past Stony Mountain prison on my way to visit friends in the town. Everything is just as it was -- the road leading up to the gate, the tranquil pond with birds soaring above, the barbed wire fences, the prison watchtowers, the drive along School Road, and the prairie stretching away to the horizon, as if it couldn't distance itself fast enough or far enough from the ugly yellow prison on the hill. David Milgaard would still be in there, if it weren't for his mother.
How MacCallum can castigate her is incomprehensible. Joyce Milgaard is the kind of mother we all wish we had -- and one we fervently hope we're never called on to be.
nlakritz@theherald.canwest.com
Sunday, September 28, 2008
Guest Shot: Free to go
This editorial was originally published by the Charlotte (NC) News-Observer on September 27, 2008.
Free to go
Wrongful convictions are a blight on North Carolina's courts, even if there's rejoicing when an innocent man is freed
So was that a triumph of justice in a Durham courtroom the other day? Perhaps so -- but a triumph that occurred only because for seven long years prior to Superior Court Judge Orlando Hudson's bombshell ruling, justice was dragged through the mud.
Erick Daniels in 2001 had been sent to prison -- adult prison! -- at age 15, convicted of a home invasion armed robbery. And as far as the Durham district attorney's office was concerned, that was the end of it. Even when Daniels' attorney went to prosecutors with a report that another man had confessed to the crimes, nothing happened.
Finally, however, another attorney, Carlos Mahoney, persuaded Hudson to hear Daniels' request for a new trial. What resulted was both exhilarating and shocking -- exhilarating because Daniels' conviction was thrown out on the spot, and shocking because of the judge's withering criticism of the travesty that had put the youth in prison.
Identification procedures had been shaky. There had been no physical evidence tying Daniels to the crime, no testimony to corroborate the charges. The defendant's trial attorney later acknowledged that he had done an inferior job.
Perhaps most troubling was prosecutors' failure to follow through when told that someone else -- a federal prison inmate who matched the victim's description of the suspect -- had confessed. The impression left by such lack of initiative is that for some authorities in Durham, once a conviction is obtained, there's no further obligation to make sure justice is done.
Hudson framed that concern: "People are starting to question, in Durham, the degree to which the prosecutor's office and the police department are tracking down cases when there are leads that other people have committed the crime." Unfortunately, the judge wasn't referring only to Daniels' case. Just recently, when armed robbery charges were dismissed against a man who had waited five years for trial, the Court of Appeals noted strong evidence of another man's guilt.
There have been too many instances in recent years, by no means only in Durham, of North Carolina courts rendering judgments that turn out to be demonstrably flawed. People have been sent to prison for crimes they didn't commit, and even have been placed at risk of execution.
Causes range from court systems struggling with a lack of resources to prosecutors who are too focused on the courtroom contest at the expense of getting things right. But the effects, besides the cruel unfairness of wrongful conviction, are also to let the guilty go free and to shake public trust in the judicial system.
Hudson could have directed that Daniels be retried. But he concluded that the evidence was too weak to sustain the charges. When a judge decides that there's no reasonable chance a jury would convict someone who already has been in prison for seven years, the system has badly malfunctioned. Or, when the person is set free to try to pick up the pieces of his life, an appalling mistake has finally been corrected.
Free to go
Wrongful convictions are a blight on North Carolina's courts, even if there's rejoicing when an innocent man is freed
So was that a triumph of justice in a Durham courtroom the other day? Perhaps so -- but a triumph that occurred only because for seven long years prior to Superior Court Judge Orlando Hudson's bombshell ruling, justice was dragged through the mud.
Erick Daniels in 2001 had been sent to prison -- adult prison! -- at age 15, convicted of a home invasion armed robbery. And as far as the Durham district attorney's office was concerned, that was the end of it. Even when Daniels' attorney went to prosecutors with a report that another man had confessed to the crimes, nothing happened.
Finally, however, another attorney, Carlos Mahoney, persuaded Hudson to hear Daniels' request for a new trial. What resulted was both exhilarating and shocking -- exhilarating because Daniels' conviction was thrown out on the spot, and shocking because of the judge's withering criticism of the travesty that had put the youth in prison.
Identification procedures had been shaky. There had been no physical evidence tying Daniels to the crime, no testimony to corroborate the charges. The defendant's trial attorney later acknowledged that he had done an inferior job.
Perhaps most troubling was prosecutors' failure to follow through when told that someone else -- a federal prison inmate who matched the victim's description of the suspect -- had confessed. The impression left by such lack of initiative is that for some authorities in Durham, once a conviction is obtained, there's no further obligation to make sure justice is done.
Hudson framed that concern: "People are starting to question, in Durham, the degree to which the prosecutor's office and the police department are tracking down cases when there are leads that other people have committed the crime." Unfortunately, the judge wasn't referring only to Daniels' case. Just recently, when armed robbery charges were dismissed against a man who had waited five years for trial, the Court of Appeals noted strong evidence of another man's guilt.
There have been too many instances in recent years, by no means only in Durham, of North Carolina courts rendering judgments that turn out to be demonstrably flawed. People have been sent to prison for crimes they didn't commit, and even have been placed at risk of execution.
Causes range from court systems struggling with a lack of resources to prosecutors who are too focused on the courtroom contest at the expense of getting things right. But the effects, besides the cruel unfairness of wrongful conviction, are also to let the guilty go free and to shake public trust in the judicial system.
Hudson could have directed that Daniels be retried. But he concluded that the evidence was too weak to sustain the charges. When a judge decides that there's no reasonable chance a jury would convict someone who already has been in prison for seven years, the system has badly malfunctioned. Or, when the person is set free to try to pick up the pieces of his life, an appalling mistake has finally been corrected.
Friday, September 26, 2008
News Update: Alabama Supreme Court denies AG's request to set another execution date for Thomas D. Arthur
Originally published by The Birmingham News
Thursday, September 25, 2008 Stan DielNews staff writer
The Alabama Supreme Court has denied a request from Attorney General Troy King to set another execution date for convicted killer Thomas D. Arthur.
In a 6-2 decision Tuesday, the court ruled the state must wait for a lower court to determine whether Arthur will get access to DNA evidence.
Arthur has on three occasions come within a day of being executed for the 1982-murder-for-hire killing of Troy Wicker of Muscle Shoals.
Just days before he was scheduled to be executed on July 31, another inmate claimed he, not Arthur, was the killer, and the state Supreme Court blocked the execution a day before it was to happen. Arthur's attorneys have asked for access to evidence in the case they say can be tested to determine whether the other inmate's story is credible.
That appeal is pending in Jefferson County Circuit Court.
Wicker was shot through the right eye as he slept, and his wife, Judy Wicker, initially told authorities a burglar raped her and killed her husband.
But Wicker was convicted in the crime, and while in prison changed her story. She claimed she paid Arthur, a work-release inmate with whom she was having an affair, to kill her husband so she could collect life insurance proceeds. Arthur stood trial three times - the first two convictions were overturned on technicalities - and has always maintained his innocence. Wicker was granted early release in return for her testimony.
Arthur's case has long been championed by human rights activists including Amnesty International and the Innocence Project, which advocates DNA testing of evidence for Death Row inmates.
Arthur's attorneys and attorneys with the Innocence Project have asked for access to evidence including an afro wig that Judy Wicker testified Arthur wore at the time of the murder, and that the inmate who confessed in July, Bobby Ray Gilbert, also claims to have worn.
They also want access to a rape kit collected after the crime, which they say could prove Gilbert's story and exonerate Arthur. The state has said it can't locate the rape kit.
Gilbert is serving a life sentence at St. Clair Correctional Facility for stabbing another inmate to death in a dispute over a carton of cigarettes.
Efforts to reach Arthur's attorneys on Wednesday were not successful.
E-mail: sdiel@bhamnews.com
Thursday, September 25, 2008 Stan DielNews staff writer
The Alabama Supreme Court has denied a request from Attorney General Troy King to set another execution date for convicted killer Thomas D. Arthur.
In a 6-2 decision Tuesday, the court ruled the state must wait for a lower court to determine whether Arthur will get access to DNA evidence.
Arthur has on three occasions come within a day of being executed for the 1982-murder-for-hire killing of Troy Wicker of Muscle Shoals.
Just days before he was scheduled to be executed on July 31, another inmate claimed he, not Arthur, was the killer, and the state Supreme Court blocked the execution a day before it was to happen. Arthur's attorneys have asked for access to evidence in the case they say can be tested to determine whether the other inmate's story is credible.
That appeal is pending in Jefferson County Circuit Court.
Wicker was shot through the right eye as he slept, and his wife, Judy Wicker, initially told authorities a burglar raped her and killed her husband.
But Wicker was convicted in the crime, and while in prison changed her story. She claimed she paid Arthur, a work-release inmate with whom she was having an affair, to kill her husband so she could collect life insurance proceeds. Arthur stood trial three times - the first two convictions were overturned on technicalities - and has always maintained his innocence. Wicker was granted early release in return for her testimony.
Arthur's case has long been championed by human rights activists including Amnesty International and the Innocence Project, which advocates DNA testing of evidence for Death Row inmates.
Arthur's attorneys and attorneys with the Innocence Project have asked for access to evidence including an afro wig that Judy Wicker testified Arthur wore at the time of the murder, and that the inmate who confessed in July, Bobby Ray Gilbert, also claims to have worn.
They also want access to a rape kit collected after the crime, which they say could prove Gilbert's story and exonerate Arthur. The state has said it can't locate the rape kit.
Gilbert is serving a life sentence at St. Clair Correctional Facility for stabbing another inmate to death in a dispute over a carton of cigarettes.
Efforts to reach Arthur's attorneys on Wednesday were not successful.
E-mail: sdiel@bhamnews.com
Wednesday, September 24, 2008
US death row inmate gets last minute stay of execution
September 23, 2008
WASHINGTON (AFP) — The US Supreme Court granted a last-minute stay of execution to Troy Davis, an African-American who was due to be put to death by lethal injection in the southern state of Georgia for the murder of a policeman.
"The application for stay of execution of sentence of death ... is granted" the highest court in the United States said in a statement issued 90 minutes before Davis was due to die.
"We are deeply grateful for this stay of execution for Troy Davis and we very much appreciate that the merits of his case for innocence are being taken seriously by the United States Supreme Court," Sarah Totonchi, chairwoman of Georgians for Alternatives to the Death Penalty (GFADP), said in a statement.
What were to have been vigils around the state of Georgia were cancelled and replaced by celebrations on the steps of the state legislative building, GFADP said.
Lawyers for 39-year-old Davis, who has been on death row since 1991 for the murder of white policeman Mark MacPhail, had pressed the US Supreme Court in Washington to take a motion for a new trial after judicial authorities in Georgia threw out appeals for clemency.
Seven out of nine witnesses who gave evidence at Davis' trial have recanted or changed their testimony, which was the backbone of the prosecution's case in the absence of a murder weapon, fingerprints and DNA.
The witnesses said statements implicating Davis had been coerced by strongarm police tactics.
The US high court was not in session this week and the request was heard Tuesday by just one member of the court, conservative justice Clarence Thomas.
Amnesty International USA also welcomed the Supreme Court order to stay the execution, and slammed the state of Georgia for trying the "ram this execution through."
"For reasons that are unfathomable, Chatham County officials seemed doggedly determined to ram this execution through before justice could fully run its course," AIUSA executive director Larry Cox said in a statement.
"We are grateful that the US Supreme Court has shown the foresight to stay the execution. We hope that it takes up the case and looks at it with fresh eyes, marking the first time that evidence pointing to Davis' innocence will have been heard in a court of law," he said.
Davis had originally been sentenced to die in July last year, but he was granted a last-minute stay of execution then by the Georgia Board of Pardons and Parole.
Earlier this month, however, the parole board issued a decision denying Davis clemency.
On Monday it affirmed that decision, and the Georgia Supreme Court on the same day voted six to one to deny a stay of execution for Davis, deferring to the US high court.
"This case gets at the heart of some real dark issues of Georgia's criminal justice system," Totonchi told AFP by phone.
"If they acknowledge the problems with this case, they are also admitting there are things like police misconduct and police coercion, and I think it's easier to go along with the status quo than to admit that we have these problems and ultimately have to solve them," she said.
International figures including former US president Jimmy Carter, Nobel Peace Prize winner Desmond Tutu of South Africa and Pope Benedict XVI have spoken against Davis' execution.
WASHINGTON (AFP) — The US Supreme Court granted a last-minute stay of execution to Troy Davis, an African-American who was due to be put to death by lethal injection in the southern state of Georgia for the murder of a policeman.
"The application for stay of execution of sentence of death ... is granted" the highest court in the United States said in a statement issued 90 minutes before Davis was due to die.
"We are deeply grateful for this stay of execution for Troy Davis and we very much appreciate that the merits of his case for innocence are being taken seriously by the United States Supreme Court," Sarah Totonchi, chairwoman of Georgians for Alternatives to the Death Penalty (GFADP), said in a statement.
What were to have been vigils around the state of Georgia were cancelled and replaced by celebrations on the steps of the state legislative building, GFADP said.
Lawyers for 39-year-old Davis, who has been on death row since 1991 for the murder of white policeman Mark MacPhail, had pressed the US Supreme Court in Washington to take a motion for a new trial after judicial authorities in Georgia threw out appeals for clemency.
Seven out of nine witnesses who gave evidence at Davis' trial have recanted or changed their testimony, which was the backbone of the prosecution's case in the absence of a murder weapon, fingerprints and DNA.
The witnesses said statements implicating Davis had been coerced by strongarm police tactics.
The US high court was not in session this week and the request was heard Tuesday by just one member of the court, conservative justice Clarence Thomas.
Amnesty International USA also welcomed the Supreme Court order to stay the execution, and slammed the state of Georgia for trying the "ram this execution through."
"For reasons that are unfathomable, Chatham County officials seemed doggedly determined to ram this execution through before justice could fully run its course," AIUSA executive director Larry Cox said in a statement.
"We are grateful that the US Supreme Court has shown the foresight to stay the execution. We hope that it takes up the case and looks at it with fresh eyes, marking the first time that evidence pointing to Davis' innocence will have been heard in a court of law," he said.
Davis had originally been sentenced to die in July last year, but he was granted a last-minute stay of execution then by the Georgia Board of Pardons and Parole.
Earlier this month, however, the parole board issued a decision denying Davis clemency.
On Monday it affirmed that decision, and the Georgia Supreme Court on the same day voted six to one to deny a stay of execution for Davis, deferring to the US high court.
"This case gets at the heart of some real dark issues of Georgia's criminal justice system," Totonchi told AFP by phone.
"If they acknowledge the problems with this case, they are also admitting there are things like police misconduct and police coercion, and I think it's easier to go along with the status quo than to admit that we have these problems and ultimately have to solve them," she said.
International figures including former US president Jimmy Carter, Nobel Peace Prize winner Desmond Tutu of South Africa and Pope Benedict XVI have spoken against Davis' execution.
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