Guest Shot: Jurors regret convicting innocent man

The following opinion was originally published in the Houston Chronicle on April 18, 2009.

Jurors regret convicting innocent man
By CAROL BOHLS, VELMA DIAMOND and LIZ ROLAND

April 18, 2009

When we were called to serve as jurors in an Austin sexual assault and murder case, we could never have predicted the ending of this story. Twelve years after we found Richard Danziger guilty of aggravated sexual assault, new DNA evidence revealed that Richard was, in fact, innocent. This shocking discovery left us confused, angry and wondering how this tragic error could have ever happened.

The centerpiece of the case presented against Danziger in 1990 was testimony provided by his friend and alleged co-conspirator, Christopher Ochoa. When Ochoa took the stand to testify against Danziger, he presented a convincing summary of events that left little doubt in our minds that both were guilty of this terrible crime. What we did not know, however, was that Ochoa’s confession and testimony were false — he only confessed and agreed to testify against Danziger after 20 intense hours of interrogation.

Unfortunately, Danziger’s case is not unique. False confessions have played a role in about 25 percent of the 234 DNA exonerations across the country. Whether because of mental incapacity, youth or persuasive threats, DNA evidence proved that each of these people was convicted of a crime he did not commit.

We were horrified to learn after Danziger’s exoneration that Ochoa’s interrogation was characterized by lies about inculpatory evidence and threats that if he did not confess and testify against Danziger, he would receive the death penalty. None of this came to light during the trial, however, because there was no record of the interrogation procedure. Had we been given the opportunity to see the context of Ochoa’s confession, including the coercive tactics that were used for hours against him, we would have at least had something to deliberate about. We did the best we could with the evidence provided to us; unfortunately, that evidence was dangerously incomplete, undocumented and untrue.

It has taken us a long time to come to terms with what happened to Danziger — in many ways we still haven’t. We are still dismayed at participating in what we can only describe as the destruction of a young man’s life. Not only were Ochoa and Danziger wrongly imprisoned, but Danziger suffered a horrible attack while incarcerated that left him seriously disabled for the rest of his life. We still share with family and friends the resounding negative impact this experience has had on our lives and our opinions of the criminal justice system.

If interrogations are recorded in their entirety — from the reading of rights to the end — jurors will have access to a clear, complete picture of the circumstances that led to a confession. This is essential in order to effectively evaluate the quality of that evidence. While many police departments have begun to record suspect interrogations, there is currently no requirement that they do so. Some things are too important to leave optional, and we think this is one of them. A complete record of suspect interrogations documents a crucial part of a criminal investigation, and it is essential for jurors to do their jobs well and reach justice.

Police officers who record interrogations know first-hand the benefits of such a policy, too. This powerful tool protects them from false claims of abuse and provides the best evidence possible to convict the guilty. By taking the step to require recorded interrogations, Texas can demonstrate to the public that we have learned from our mistakes and can begin to regain the trust that has been lost through misconduct and wrongful conviction. We will settle for nothing less than the best quality evidence possible.

Bohls, of Austin, Diamond, of Clifton, Mo., and Roland, of Pflugerville, were jurors in the wrongful conviction case of Richard Danizger.

Guest Shot: Conviction thrown out, tables turn on prosecutors

The following opinion was published in the Indianapolis (Indiana) Star on April 10, 2009.

Conviction thrown out, tables turn on prosecutors
by Ken Bode

In 1987, when a jury found Ronald Reagan's former Secretary of Labor, Raymond Donovan, not guilty of fraud and larceny, Donovan asked the prosecutor, "Which office do I go to to get my reputation back?"

That is often the question in failed, high-profile public corruption cases. The thought must have passed through the mind of former Alaska Sen. Ted Stevens this week, when, at the request of Attorney General Eric Holder, a federal judge in Washington threw out the ethics conviction that cost him the Senate seat he'd held longer than any other Republican.

This time, however, Judge Emmet Sullivan went further. He named a special counsel to investigate whether six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, should face criminal charges. Angrily, Judge Sullivan warned about what he called "a troubling tendency" among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases.

When winning cases -- "getting another scalp on the belt" -- becomes the optimal outcome, ambitious prosecutors have been known to withhold evidence from the defense (as in the Stevens case), make sleazy deals with jailhouse informants and use coerced confessions to made their case.

In Illinois, so many Death Row wrongful convictions were revealed that Gov. George Ryan in 2003 issued a blanket commutation to life sentences for all prisoners facing capital punishment. In 2006, five Death Row convictions were overturned in North Carolina because prosecutors had withheld evidence pointing to a defendant's innocence.

What surprised me about the Stevens case is that Public Integrity lawyers were the miscreants. Over more than 25 years working as a network correspondent, I used sources in the Public Integrity section to report on cases of political corruption and vote fraud in Chicago, Philadelphia, Louisiana, West Virginia, North Carolina, Alabama and here in Indiana. I watched them build cases involving vote-buying, conspiracy, kickbacks, you name it, and they almost never failed to get a conviction. Not interested in loosey-goosey justice, they built solid cases.

One of the things the Public Integrity folks emphasized, especially in high-profile political cases, was a final Washington review of the investigators and prosecutors in the field. Their motto was some variation of, "If you rise up to strike the king, you'd better kill him." They wanted no instances of ambitious prosecutors bringing charges against elected officials only to find the case involved weak witnesses, withheld evidence or a political vendetta.

They were purists. In Alabama, I watched them drop a case at the courthouse door when journalists reported on prosecutorial harassment of witnesses and potential defendants. So, when I watched the case against Stevens go forward, I felt pretty certain that federal prosecutors had the goods. Surely if you bring corruption charges in an election year against the most senior senator in the Republican Party, you will bring nothing but a slam-dunk case.

I believe this is why Judge Sullivan was so angry in his rebuke to government lawyers in the Stevens case. During the trial, the judge held three prosecutors in contempt for failing to produce documents, and scolded them for introducing evidence they knew to be inaccurate. The prosecutorial misconduct was intentional, said the judge, and when Stevens' lawyers repeatedly called it to the attention of former Attorney General Michael Mukasey, they were ignored.

Against this outcome, the gifts Stevens allegedly received -- a puppy, a stained glass window, remodeling of his country chalet and a vibrating lounger -- seem penny-ante. Because he was convicted eight days before the election, this outlandishly flawed trial cost Stevens not just his reputation but his Senate seat as well.

In Alaska, there are calls for a new election. I endorse that. In Washington, Georgetown University law students who signed up for a course on public corruption are looking for a new professor. Brenda Morris, the lead prosecutor in the government's case against Stevens, won't be available. She now faces criminal charges herself.

Ken Bode is the former national political correspondent for NBC News and a former political analyst for CNN. Contact him at bode.ken@gmail.com.

Must Viewing

On April 12, 2009 at 10 p.m. Eastern/Pacific Time, do not miss "Witch Hunt" on MSNBC. The documentary, executive-produced and narrated by Sean Penn, tells how dozens of innocent people in Bakersfield, California were convicted of molesting their own children, on the basis of evidence that was at minimum thin, and in most instances, borrowed from the world of fantasy.

In 2005, Kimberly Sevcik wrote about the impact of these prosecutions on the victims for "Rolling Stone Magazine" --

The day Jeff Modahl's daughters were spirited away from their school in the back of a squad car, no one would tell him where they were taken. He spoke to plenty of people in Bakersfield, California, who knew: The sheriff. The district attorney. The Department of Children's Services. "Your girls are safe," one official after another assured him. "But we can't let you talk to them." Earlier in the week, Modahl, a soft-spoken thirty-year-old mechanic with the build of a heavyweight wrestler, had called Children's Services to report that he suspected the girls' baby sitter of touching them inappropriately. Officials told him that they were investigating his charge, but until they had finished questioning Carla, 10, and Teresa, 12, no one in the family would be allowed to speak to them.

The morning sun was still low and tentative when police knocked on Modahl's door two weeks later and arrested him. Panicked and confused, Modahl repeatedly asked the officers what he was being charged with, but they refused to tell him. He sat on the couch, his hands cuffed behind his back, as they ransacked the house, rummaging through drawers and closets, confiscating all of his family photographs.

"Witch Hunt" offers greater depth, and spares none of the authorities -- who, for the most part, are still in positions of power. Foremost among these is DA Ed Jagels, consistently rewarded for malfeasance by re-election to a post where he has struck repeated blows to truth and to justice.

If you can't watch "Witch Hunt" on Sunday evening, record it and watch it later.

Guest Shot: Solving crimes using fingerprints is an inexact science by Jason Felch

The following opinion was originally published in the Los Angeles Times on March 20, 2009.

Solving crimes using fingerprints is an inexact science
Although it is accepted that prints are unique, courts continue to have questions about using them to make IDs.

By Jason Felch

March 20, 2009

When Thomas and Ann Farrow were found murdered in their paint shop, their heads crushed with a blunt object, the only clue was a bloody right thumbprint on the store's empty cash box.

The brazen murder shocked the people of Debtford, a sooty industrial suburb of London. They clamored for police to find the killer.

The year was 1905. Forensic science was in its infancy. Scotland Yard had only recently begun collecting carefully pressed fingerprints from criminals, stashing the cards in pigeonholes of a makeshift filing system.

But Scotland Yard Inspector Charles Collins believed that the bloody print could help him solve his crime. After learning that a man named Alfred Stratton had been seen near the crime scene, he collected the unemployed ruffian's thumbprint and compared it with the one left at the crime scene. A close inspection showed there were 11 minute features that the two prints shared.

The prosecutor at Stratton's trial told jurors the similarities left "not the shadow of a doubt" that the crime-scene print belonged to Stratton.

But the defense had a surprising ally at their table: Henry Faulds, a Scottish doctor who two decades earlier was the first to propose using fingerprints to solve crimes.

Faulds believed that even if fingerprints were unique -- there was, after all, no scientific basis for the popular assumption -- the same was not necessarily true of "smudges," the blurry partial prints accidentally left behind at crime scenes in blood, sweat or grease.

A single bloody thumbprint, he felt, was not enough evidence to convict anyone of murder.

Stratton's trial would be the first test of the new science of fingerprinting, and it raised concerns that, more than a century later, still have not been addressed.

Today, fingerprints are once again on trial.

In 2007, a Maryland judge threw out fingerprint evidence in a death penalty case, calling it "a subjective, untested, unverifiable identification procedure that purports to be infallible."

The ruling sided with the scientists, law professors and defense lawyers who for a decade had been noting the dearth of research into the reliability of fingerprinting. Their lonely crusade for sound science in the courtroom has often been ignored by the courts, but last month it was endorsed by the prestigious National Academy of Sciences.

The question is not whether fingerprints are unique -- most scientists agree they probably are, though that assumption remains largely unstudied. The issue is whether the blurry partial prints often found at crime scenes -- what Faulds called "smudges" -- are sufficient to identify someone with any reliability.

The answer: No one knows. There are no national standards for declaring a fingerprint "match." As a result, fingerprint identifications are largely subjective.

For ages, people have marveled at the immutable ridges, arches, loops and whorls embedded in every fingertip. Believing them unique, ancient Babylonians pressed their fingers into wet clay tablets to sign legal contracts.

But it was not until the 1880s that Faulds discovered their utility as a forensic tool. He had begun cataloging the curious impressions when someone stole alcohol from his laboratory, according to Colin Beavan, the author of a book about Faulds and the Stratton trial. Faulds used the fingerprints left on the glass vial to identify the culprit -- the first known use of latent prints to solve a crime.

But by the time of Stratton's trial in 1905, fingerprinting had moved from the realm of scientists to that of police agencies.

Faulds was sitting silently at the defense table, Beavan wrote, stewing bitterly. The limitations of his technique were being ignored.

"The least smudginess in the printing of them might easily veil important divergences ... with appalling results," Faulds wrote in a book that year. Police were "apt to misunderstand or overstrain, in their natural eagerness to secure convictions."

His warnings were ignored. Jurors took just two hours to decide Stratton's fate, with the fingerprint as the only piece of evidence linking him to the crime. He and his brother were hanged 19 days later.

The concerns Faulds raised would go unanswered and largely ignored for decades as fingerprints became definitive proof of identity. What had started as a hypothesis for 19th century scientists became an article of faith for forensic scientists and the courts in the 20th century, says Michael Saks, the author of several articles on the social history of identification sciences.

When fingerprints were first used in an American court in a 1920 Chicago murder trial, a juror told reporters that "fingerprints and fingerprints alone convinced us." Ever since, experts have claimed their power to eliminate any doubt.

That air of certainty soon carried over to other emerging forms of forensic identification. Handwriting, shoe prints, tire tracks, bite marks -- all were asserted to be reliable identifiers, based largely on faith and police experience rather than any rigorous scientific study. Even the hard science of DNA evidence gained credibility in its early days by calling itself "genetic fingerprinting."

Even today, fingerprint experts present their conclusions as nothing short of certainty. Many testify that fingerprinting has an error rate of zero. Few judges have been willing to question such statements, fearful of contradicting a century of legal precedent.

Only recently, with the advent of DNA evidence, have the "appalling results" that Faulds warned of begun to come to light.

In 2004, the Boston Police Department was forced to shut down its fingerprint lab after a "glaring mistake" led to a wrongful conviction. That same year, the FBI's top fingerprint analysts were forced to admit that they were wrong after claiming to be "absolutely confident" that a fingerprint had linked a lawyer in Oregon to the Madrid train bombings. The Los Angeles Police Department is now reviewing nearly 1,000 fingerprint cases after an internal review that found two people had been wrongfully accused by fingerprint "matches."

If the National Academy report succeeds in forcing the courts to ponder questions first raised a century ago, Faulds, who went to his grave in 1930 still angry that the limits of "smudges" were being ignored, might finally rest in peace.

Jason Felch has written extensively about forensic evidence, especially DNA, for The Times. jason.felch@latimes.com

Guest Shot: RETHINKING MARYLAND'S DEATH PENALTY By Michael Millemann

The following opinion was originally published in the Baltimore Sun on March 19, 2009.

A worthy compromise?
Yes: Bill is a crucial step in the right direction

By Michael Millemann

March 19, 2009

The Maryland death penalty has been an utter failure by every measure since it was reinstituted in 1978. From 1978 to 1999, the period for which there is detailed information, there were 1,308 homicides eligible for the death penalty. Prosecutors filed death notices in 353 of these cases, and actually sought the death penalty in 180 cases. This produced 76 death sentences. Of these, 62 were reversed, a staggering 82 percent error rate. There were five executions, and five inmates currently are under sentence of death. (Governors commuted two death sentences, and two death-sentenced prisoners died of natural causes.)

Moreover, the death penalty comes with a huge price tag. The resources committed to the death components of homicide prosecutions - of prosecutors, courts, defense counsel and others - are as staggering as the error rate. Indeed, the bitter irony of the Maryland death penalty experience is that, in fact, the death penalty undermines public safety. If we reallocated these resources, for example, to target career offenders who predictably will kill, and to protect children at risk who predictably will be killed, we could save lives.

Senate Bill 279, compromise legislation passed by the state Senate and now before the House of Delegates, is an important step forward. It would limit the death penalty to cases in which there is biological or DNA evidence that links the defendant to murder, a videotaped and voluntary confession, or a video recording that conclusively links the defendant to murder. These measures would help to prevent the execution of innocent people.

That is a serious concern. Despite all of the resources committed to death cases, innocent people still are convicted and sentenced to death. In Maryland, Kirk Bloodsworth is a prime example. The 2008 Maryland Commission on Capital Punishment, chaired by Benjamin R. Civiletti, recommended the repeal of the death penalty. It pointed out that during the last 35 years nationwide, there have been 1,125 executions and 130 exonerations of innocent, death-sentenced persons. Thus, for every 8.7 executions, there has been one exoneration.

This demonstrates what we all know: Human beings are fallible. If a defendant is mistakenly sentenced to life in prison, that mistake can be corrected, but not if the sentence is death and the sentence is carried out.

SB 279 responds to this profound concern. Under the legislation, many homicide cases now prosecuted as capital cases would no longer be death-eligible. The considerable resources now devoted to the death components of these cases could be used to more effectively protect the public and provide services to the families of victims.

Soon, I hope, the General Assembly will repeal the death penalty. It is bad policy as well as bad practice. If it does not, it should deal with other serious problems with the administration of the death penalty that are described in the Civiletti Commission report. These include racial and jurisdictional disparities in how the death penalty is applied.

For the present, however, SB 279 is a critically important step in the right direction.

Michael Millemann, a professor of law at the University of Maryland, represents a death-sentenced inmate in Maryland. His e-mail is mmillemann@law.umaryland.edu.

Guest Shot: The American Criminal Injustice System

The following commentary by Paul Craig Roberts was originally published in The Beacon on March 14, 2009.

The American Criminal Injustice System

Ronald Cotton spent 11 years in prison because Jennifer Thompson provided eyewitness testimony that he was the person who raped her. On March 9, National Public Radio revisited the story.

It turned out that Thompson was completely wrong. DNA evidence indicated that it was not Cotton but another man who had bragged about the rape.

I am familiar with psychological studies that conclude that eyewitness accounts are wrong half of the time. That is enough to discredit eyewitness testimony as evidence – yet police and juries always bank on it.

Rape victims tend to be angry and they want someone to pay. When shown mug shots or a lineup, they tend to pick someone, naively believing that if it is the wrong person the police investigation will clear the person. Witnesses to crimes who are not themselves victims want to be helpful to the police. Consequently, they also tend to deliver up the innocent to justice.

Law and order conservatives think that the only miscarriages of justice are caused by liberal judges and liberal parole boards who can't wait to release dangerous criminals to prey on the public.

The absurd idea that the justice system doesn't make mistakes about those it convicts, except when they are let off by liberals, has made it impossible for innocent people wrongfully convicted to be paroled.

To be paroled, a person must admit to his crime and go through rehabilitation. Of course, only the guilty admit their crimes, and so only the guilty qualify for parole. Innocent people tend to maintain their innocence.

A case in point is that of William R. Strong, who has been locked away for a dozen years or more for "wife rape." According to people familiar with the case, Strong's wife had a boyfriend and wanted rid of her husband. She accused him of rape. This was prior to DNA testing, but the perp kit still exists.

Strong comes from a patriotic military family. His father was a colonel, and Strong served as a lieutenant and has two college degrees. The family trusted America and the police and the justice system. When advised that Strong would be out in a year if he agreed to a plea bargain, the family, beset with troubles, pressured Strong to accept the deal.

The judge, seeking women's support, gave Strong 60 years.

That should be enough to wreck marriage in America, or for that matter, heterosexual sex unless there is a signed contract prior to each act.

The American criminal justice system is incapable of admitting that it makes mistakes. The criminology bureaucrats claim that those inmates who proclaim their innocence are in denial and, thus, cannot be rehabilitated and, therefore, remain dangerous. In truth, it is the bureaucrats who are in denial and constitute a danger to justice.

The criminal justice system has nothing to do with justice. It is a massive producer of injustice. The agenda is to clear court dockets and produce high conviction rates. These high rates are achieved through coerced plea bargains.

Law and order conservatives think of the police in godlike terms as "public defenders." Conservatives could gain more perspective if they watch some of the videos on YouTube of gratuitous police violence, such as one of a police officer delivering a brutal beating to a 15-year-old girl.

Libertarian free-market types believe that the private sector can do everything better than the public sector. This ideology causes libertarians to be blind to the dangerous incentives created by the privatization of prisons. On Feb. 12, CBS News reported that two Pennsylvania judges have been charged with sending kids to privately operated detention centers in exchange for $2.6 million in payoffs. State-operated prisons don't want more inmates. The more inmates, the more the work and the more the risk that a judge will intervene because of overcrowding.

In contrast, private jails make more money the more inmates they have.

Just think of all the kids whose lives have been ruined by the greedy judges and private prison operators. The judges have been sentenced to seven years on reduced-charge plea bargains.

But what about the private prison operators who paid the bribes to have the kids sentenced? Shouldn't they be put away for life?

The United States has the highest incarceration rate and the biggest prison population of any country in the world. With 5 percent of the world's population, the United States has 25 percent of the world's prison inmates. Recent research by the Pew Center concludes that one in every 31 Americans is in prison or jail or on probation or parole.

Many of Mr. Roberts' commentaries on the criminal justice system have been reposted at Truth in Justice and remain available to readers at our website. These can generally be accessed from the main section page for How the System Works. You can also locate his commentaries by using the search engine on the main page to find Paul Craig Roberts.

Guest Shot: Obama's Testing Test by William Sessions

The following opinion by William Sessions was originally published in Slate Magazine on February 27, 2009.

Obama's Testing Test
Why is the Justice Department on the wrong side of a Supreme Court case about DNA evidence?
By William S. Sessions

Posted Friday, Feb. 27, 2009
On Monday, the Supreme Court will hear a case about whether the Constitution's due process clause requires Alaska to turn over DNA evidence to William Osborne, who was sentenced to 26 years in prison for kidnapping and sexual assault. Alaska prosecutors do not dispute that advanced DNA testing could prove Osborne's innocence beyond any doubt. But for nearly a decade, they've refused to allow him to do this testing.

To my great disappointment, recent news reports indicate that the Obama Justice Department has decided not to reverse the Bush administration's decision to weigh in on Alaska's side in the case, District Attorney's Office for the Third Judicial District v. Osborne. As has been said many times, the Justice Department's mission is to do justice. It is not to seek a conviction—or to uphold one—at all costs.

What interest does Alaska have in denying Osborne access to this evidence, thus obscuring the truth? He has offered to pay for the testing, so the state will incur no financial cost. In any case, federal money is available to help pay for testing for those who cannot afford it. Osborne did not willfully bypass advanced DNA testing when he was tried 14 years ago; the sophisticated testing he requests did not exist then.

Alaska's primary argument is that testing is unnecessary because non-DNA evidence demonstrates Osborne's likely guilt. But the victim's physical description of her attacker was tentative, differing in key respects from Osborne. And other cases have repeatedly demonstrated that this other evidence will amount to nothing if the DNA excludes Osborne and could even be matched to a convicted felon already in the system.

As I know from experience, law enforcement's predictions about a defendant's likely guilt are no substitute for actually performing a DNA test.

When I became FBI director in 1987, the bureau established a DNA laboratory we hoped would be used to verify that a suspect had indeed committed a crime. During my years as a U.S. attorney and federal judge in Texas, rapists and murderers sometimes walked free for lack of biological evidence. I had these cases in mind when we established the laboratory in Washington, D.C.

The results of the first 100 tests in 1988 astonished me. In three out of 10 cases, not only did we have the wrong person, but the guilty person was still at large. Many of them were unidentified and dangerous. DNA testing overall has produced dramatic results, exonerating a total of 232 people, including 17 on death row.

Alaska argues that a constitutional rule mandating that defendants get access to DNA after their convictions will prevent states from coming up with their own rules for handling this evidence. It's true that some states and the federal government do allow post-conviction access to DNA evidence. But as important, some narrowly circumscribe such access, and six, including Alaska, provide no statutory right to it at all.

Alaska contends that evidence of innocence does not, by itself, matter once a person has been convicted, or if the trial was free of constitutional and other defects. That goes too far in elevating the principle of finality over basic justice.

It's a generally laudatory goal for a new president to continue the DoJ polices of the previous one when he takes office. But a change in position may be warranted in some cases. Osborne is one of them. The Justice Department's decision is particularly perplexing because when President Obama was an Illinois state senator, he responded to that state's wrongful conviction problem by leading a bipartisan effort to help prevent convictions of the innocent, including laws allowing access to DNA evidence.

Evidence of innocence does—and must—matter to all of us, whenever it is presented. I have no idea whether Osborne is guilty. If the DNA shows that he is, so be it. But what if it shows he is not? Wouldn't victims of crime want to know if the wrong person is imprisoned, and the real perpetrator is still on the streets, free to commit more crimes? Wouldn't all of us want to know this?

Former Attorney General John Ashcroft has called DNA the "truth machine of law enforcement." Why should our criminal justice system be afraid of that truth machine? There is still time for the new administration to reverse course before next Monday's argument. I hope it will.

William S. Sessions, now a partner at the law firm Holland and Knight, directed the FBI from 1987 to 1993. Previously, he served as a federal judge and U.S. attorney in Texas.

Free Connie Keel, by Adam Reich

My name is Adam Reich, and I am a clinical supervisor with the Post-Conviction Justice Project at USC Law School. I am writing this on behalf of one of my clients, Connie Diane Keel. I believe her story correlates to your organization's interests.

Connie Keel, a non-violent grandmother, has been incarcerated since 1981 because she sat in a car, terrified for her life, while her armed, abusive husband and his cousin made a spur-of-the-moment decision to rob a liquor store and shoot the clerk. Even though Ms. Keel did not enter the store, fire the gun, or actually commit the robbery or murder, she is still behind bars, nearly 30 years later.

Connie has a long history of domestic abuse. As a child, adolescent, and young adult, she was neglected and physically abused by her mother, sexually abused by uncles, neighbors, and friends, and then regularly beaten (and even raped) by her husband. A California Board of Parole Hearings investigation substantiated Connie's stories of abuse through interviews with her family and friends and those of her ex-husband. The same investigation found that Connie's extensive abuse led her to develop a condition, Battered Women's Syndrome, which prevented her from disobeying her husband when ordered her at gunpoint to stay in the car the night of the crime.

Connie Keel is now 50 years old and a fully rehabilitated woman. She has never been disciplined for violence—either prior to or during her incarceration. While in prison, Connie has advanced herself educationally, held leadership roles in several programs, and generated favorable reviews in multiple vocational areas. Also, Ms. Keel has been involved in more than 27 self-help groups while in prison.

The California Board of Parole Hearings (BPH) found on Oct. 29, 2008, in a case argued by the Post-Conviction Justice Project, that Ms. Keel "is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison." While this decision was momentous, her fate now rests in the hands of Gov. Schwarzenegger, who has not affirmed many parole suitability determinations, but has the opportunity to show compassion for a woman who has turned her life around.

Three weeks ago I launched a public awareness campaign and created a corresponding website, www.freeconnie.com, which tells Connie's story and enables visitors to email a letter of support to the Governor. If we can generate enough support letters, Governor Schwarzenegger will have to give Connie's case more than a mere cursory glance, and in doing so, will understand that it would be inhumane and unjust to overrule the Parole Board and deny her freedom.

I hope that you will visit the website, send a letter of support, and help spread the word of Connie's story, www.freeconnie.com, and her need for assistance.

Guest Shot: The Scourge of Judicial and Prosecutorial Immunity: The Prosecutorial and Police Destruction of the Life of Timothy Cole

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.

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.

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.

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.

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

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.

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

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.


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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.

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.

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.

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.