Innocence, Inc.

The following was posted by Scott Greenfield on his blog, Simple Justice, on June 16, 2015.

When Jeff Blackburn, a founder of the Innocence Project of Texas and its chief counsel, tendered his resignation, it raised a storm of controversy. Jeff was gracious toward his organization, but it wasn’t his way to go quietly into the night.  He didn’t quit without reason, and yet he didn’t seek to tank the organization he built that had accomplished extraordinary things.  It’s not that the legal system in Texas is so much worse than anywhere else, but that they like killing people down there.

But then came an “announcement” that was more than he could take.  It hit the fan from three sides, the IPTX website, the Houston Chronicle and a blog, Grits for Breakfast.  Aside from Jeff, the other person who ran the show was the IPTX executive director, Nick Vilbas.  Together, they made an underfunded, overworked organization do things that no one would have believed possible. They exonerated the innocent.

While Nick remains, as far as he knows, Executive Director, having made a promise to stay on long enough to facilitate the transition to “new management,” and honoring his promise to do so, because honorable guys do that, the announcement hit hard.  There was a new Executive Director. Not just new, but one who had worked at IPTX before, but was “let go” as he just wasn’t worth keeping on.
He wasn’t a lawyer. He lacked a firm grasp of what lawyers do, grossly overestimating his knowledge of law and the legal system. He didn’t even like lawyers and had little respect for their efforts.  That didn’t stop him from promoting his own views, often naïve and puny, always self-aggrandizing, but not always with high regard for the truth.

Yet, there it was, in black and white, a new Executive Director was named, and he was going to lead the Innocence Project of Texas to a “new era.”  This was more than Jeff Blackburn could stomach.  I asked Jeff what all this meant, and in an email Jeff let loose.

Hey Scott,
Thanks for asking me to comment on Scott Henson’s post about his becoming the new Executive Director of the Innocence Project of Texas (IPTX), and, more generally, about what is going on down here.

To the casual reader of “Grits for Breakfast,” everything must seem just peachy in Texas: we learn that there has been a “significant bout of staff turnover” at IPTX and that Scott, my “longtime friend,” has agreed to step in and become the new leader. In a gushy article in the Houston Chronicle, it is even suggested that his ascension will usher in some sort of “new era” of reforms at a “crucial” time.

That’s ok so far as it goes, I guess. The problem is that it doesn’t go anywhere at all. This post, like the IPTX’s official line on why I left, fails to explain why these events have happened, what is happening to the “innocence movement” in Texas and around the country, and what it means for criminal defense lawyers.

That’s a mistake. Big changes are going on in criminal defense and criminal justice reform right now, and what is happening in IPTX is only a small example. We need to discuss these changes freely and out in the open. Your blog is about the only place that can be done, and I sincerely thank you for that.

Here’s my contribution to that discussion:

Ten years ago, we created IPTX to be a fighting organization of criminal defense lawyers that could win cases, then use those victories to get statutes passed. We had a very clear, lawyer-driven, guerilla strategy. After a fair number of setbacks and missteps over the years, it worked- we got a lot of people out of prison, got some good stuff passed in the legislature, and managed to take our long-shot victory in the Tim Cole case all the way to getting a statue built in his honor and, now, an official commission named after him.

As lawyers, we knew what mattered to criminal defendants and what did not. We did all of this without getting co-opted into the state government even though we got a $100,000.00 per year payment from it through our Texas Tech clinic. We also avoided getting suckered into advocating minor, inoffensive reforms and calling them big just so we could say we had done something- a standard practice in Texas and one that Scott (Henson) is intimately familiar with. We picked, we chose, and overall we did pretty well. Of course, we were broke all the time and it required loads of unpaid effort, but who the hell was counting hours or money? It was the right thing to do and it made us feel fully alive.

While we were doing that some big changes happened. These changes put our ideas about IPTX on a collision course with the reality of power and money. Eventually, they would blow the whole project apart.

Three things happened:

1. The New York-based Innocence Project transformed itself into a multi-million dollar-a- year business replete with professional fundraisers, plaques for lawyers from Goldman Sachs, and $100,000.00 per table galas. These people began to do things that were solely designed to get publicity and make them money. They overstated the nature and extent of problems in forensic science. They exaggerated the number of wrongful death penalty convictions. They tried to kill good legislation.

Some of this behavior, all of which was done arrogantly and without ever even consulting us, messed up relationships we had formed with law enforcement officials. All of it messed up our ability to raise money for our work in this state. Finally, the New York people changed the structure of the national “Innocence Network” to allow them to be in full control. Do they still have good lawyers who do good work? Absolutely. Has that part of their operation been eclipsed by their United Way-level need to keep getting more and more money and please donors? Totally. Is there an innocence “movement” anymore? Not really. There’s just Goldman Sachs and business, baby, business.

2. Even bigger changes occurred during this period within the criminal defense bar as a whole. As a result of major sociological changes, criminal defense lawyers are now either fabulously-well-to-do lawyers that represent fabulously-well-to-do defendants, clowns with overblown websites who aspire to be fabulously-well-to-do lawyers, or incompetent, faceless drabs doing court appointments for a few hundred bucks a throw. There are plenty of us in the middle, of course- good lawyers who do good work because we believe in it- but our voices are increasingly drowned out. The big, top-down outfits like NACDL and our state group in Texas, TCDLA, reflect this shift- the seminars are slicker and more expensive, the big shots are praised more lavishly, and the efforts to get money from people like the Koch brothers or the government are more strenuous and frequently successful. So what’s wrong with all that?

Everything: criminal defense lawyers, whether we get it or not, are the canaries in the coal mine of this country’s government. Our calling and purpose is to sound the alarm against repression, organize resistance to it, and defend the interests of the poor slobs who don’t know any better out there. Are our national and state organizations doing that? Not really. Are we doing it on our own in our towns and cities? Not really, and damn sure not enough.

3. While facing these pressures, there was something even more insidious: the drive of the government in Texas to co-opt innocence work and housebreak the IPTX. The most recent example of this is the creation of the Tim Cole Exoneration Review Commission, a move being heralded as some sort of breakthrough in criminal justice reform. IPTX will be given a rotating token slot on this “Can’t-And-Won’t Do” commission, which will undoubtedly declare before long that the “problem” of wrongful convictions is “solved”. Does anyone want to bet that this commission will come within forty miles of dealing with the real reason people get wrongfully convicted in this state- our lack of a public defender system?

IPTX was faced with a choice in the face of these pressures- either go along and get along or change direction and break free of the hypocrisy. Nick Vilbas, the just-replaced Executive Director of IPTX and I wanted us to change direction. We wanted to break from the big-money phoniness of both the New York people and the leadership of the criminal defense organizations. We wanted to find a way back to the heart and soul of the criminal defense lawyers we are and believe in being. We chose to resist, even to the point of refusing money for the law school operation, getting co-opted by the government in Texas.

We lost that vote. The others won. I quit over it, and Nick will be out soon enough.
The folks who chose to stay in IPTX are good, well-intentioned lawyers. Scott Henson is indeed my old friend, and I wish him well with his “new era”.

My idea of a “new era” is a lot different than his, however.

My idea of a “new era” is one in which criminal defense lawyers start organizing at the local level for political change- change that can politicize the criminal justice system by demanding better indigent defense, citizen’s oversight of cops, bail reform, and a host of other things that can bring this repressive system to heel.

My idea of a “new era” is one in which criminal defense lawyers can reclaim their roles, their value to the community they live in, and their personal and professional worth.
My idea of a “new era” is one in which we truly are liberty’s first, and last, champions.
Is that era at hand? No. But it is damn sure worth fighting for.

Thanks for asking me about my thoughts, and thanks for your time and attention .

Sincerely,
Jeff Blackburn
June 16, 2015

This was the “polite” version of what Jeff had to say. I’ve printed it in full, without interim commentary, so that my words or thoughts don’t impair his message.  There will be time for that later.

One miscarriage of justice wasn't quite enough?

The following editorial was published by the Ledger-Enquirer (Columbus, GA) on June 15, 2015.

The particular case at hand happened in Texas, but this isn't really about Texas. It's about justice. (Abundant evidence to the contrary, the two are not mutually exclusive.)

As reported over the weekend, a former prosecutor named Charles Sebesta, who spent 25 years as a district attorney in a couple of mostly rural Texas counties about 100 miles from Houston, had to forfeit his law license after a State Bar of Texas review panel concluded he was guilty of professional misconduct.

Lest that sound too dully bureaucratic -- like maybe he fudged on some paperwork -- Sebesta's "misconduct" consisted of withholding evidence and using false testimony (that's called "perjury" in some legal circles) to win a capital murder conviction against a suspect named Anthony Graves for the 1992 killings of six people. A federal appeals court overturned Graves' conviction in 2006, and four years later a special prosecutor concluded he was innocent of the crime and should be freed.

All told, Anthony Graves spent a dozen years on death row, including four after a federal court overturned his original conviction.

The egregiousness of the prosecutorial misconduct in this case boggles the mind. The ultimate outcome, had not the appeals process (and a few strokes of good luck) worked in Graves' favor, should sicken every American whose conscience isn't in need of defibrillation.

The actual murderer, a man named Robert Earl Carter, testified at trial that Graves was his accomplice. Sebesta knew Carter had testified before a grand jury that he acted alone, yet the prosecutor let Carter and another witness give false testimony to win a conviction against Graves. (Carter repeatedly recanted his implication of Graves, including in the final moments before his execution in 2000.)

Had the sheer corruption of Graves' prosecution and sentencing not been uncovered, an innocent man would have been murdered -- however the law might define it, there is no other adequate practical term for it -- in the name of The People.

Any argument that justice has ultimately prevailed in this case would be feeble to the point of moral obscenity. An innocent man lost 12 years of his life, and almost his life itself. A guilty one lost his law license.

The question that hangs over this particular case is obvious: Why is Charles Sebesta himself not headed for prison? In what universe of justice is willful judicial fraud, with consequences so catastrophic, punishable by nothing worse than losing one's job?

A larger question hangs over the larger issue: Why aren't there more and better investigative, prosecutorial and judicial review processes in place for when criminal justice has gone so horribly wrong? News stories about innocent people being freed after years behind bars have become appallingly familiar. And while very few of them involve this kind of horrific prosecutorial misconduct, they still result in wrongs that can never really be righted.

Open letter to Justice Antonin Scalia on the death penalty

The following open letter, written by Leonard Pitts, Jr., was published by the Miami Herald Syndicate on June 14, 2015.

To the Honorable Antonin G. Scalia, Associate Justice of the Supreme Court of the United States:

Dear Sir:

Twenty-one years ago, your then-colleague, the late Justice Harry Blackmun, wrote what became a famous dissent to a Supreme Court decision not to review a Texas death penalty conviction. In it, Blackmun declared that he had become convinced "the death penalty experiment has failed" and said he considered capital punishment irretrievably unconstitutional.

The death penalty, he wrote, "remains fraught with arbitrariness, discrimination ... and mistake. ... From this day forward, I no longer shall tinker with the machinery of death."

You mocked him for this stance in an opinion concurring with the majority, invoking as justification for capital punishment the horrific 1983 case of an 11-year-old girl who was raped then killed by having her panties stuffed down her throat. "How enviable a quiet death by lethal injection," you wrote, "compared with that!"

A few months later, the very case you had referenced came before the court. Henry Lee McCollum, a mentally disabled man who was on death row in North Carolina after having been convicted of that rape and murder, applied to the court for a review of his case. You were part of the majority that rejected the request without comment.

The demagoguery of your response to Justice Blackmun is pretty standard for proponents of state-sanctioned death. Rather than contend with the many logical and irrefutable arguments against capital punishment, they use a brute-force appeal to emotion. Certain crimes, they say, are so awful, heinous and vile that they cry out for the ultimate sanction. For you, Sabrina Buie's rape and murder was one of those, a symbol of why we need the death penalty.

As you have doubtless heard, it now turns out McCollum was innocent of that crime. Last year, he and his also mentally disabled half-brother, Leon Brown (who had been serving a life sentence), were exonerated by DNA evidence and set free. A few days ago, McCollum was pardoned by North Carolina Gov. Pat McCrory.

The case against him was never what you'd call ironclad. No physical evidence tied him to the crime. The centerpiece of the prosecution's case was a confession McCollum, then a 19-year-old said to have the mentality of a child 10 years younger, gave with no lawyer present after five hours of questioning.

"I had never been under this much pressure," he told the News & Observer newspaper in a videotaped death-row interview, "with a person hollering at me and threatening me. ... I just made up a false story so they could let me go home."

But he didn't go home for more than 30 years. You and your colleagues had a chance to intervene in that injustice and chose not to. Not incidentally, the real culprit avoided accountability all that time.

The argument against the death penalty will never have the visceral, immediate emotionalism of the argument in favor. It does not satisfy that instinctive human need to make somebody pay - now! - when something bad has been done. Rather, it turns on quieter concerns, issues of inherent racial, class, geographic and gender bias, issues of corner-cutting cops and ineffective counsel, and issues of irrevocability, the fact that, once imposed, death cannot be undone.

Those issues were easy for you to ignore in mocking Blackmun. They are always easy to ignore, right up until the moment they are not. This is one of those moments, sir, and it raises a simple and obvious question to which one would hope you feel honor bound to respond. In 1994, you used this case as a symbol of why we need the death penalty.

What do you think it symbolizes now?

Leonard Pitts Jr. is a syndicated columnist. Readers may write to him at lpitts@miamiherald.com or the Miami Herald, 1 Herald Plaza, Miami, FL 33132.

Texas Innocence Project Founder Quits, Accuses Colleagues Of Selling Out

The following article was posted by the San Antonio (Texas) Current by Hernán Rozemberg on Wed, May 27, 2015.

He's not about the bling.

But as he sees it, that's all his colleagues have become about.

So he's vowing to continue fighting the good fight ... on his own.

Texas defense lawyer Jeff Blackburn has parted ways with the high-profile organization he founded a decade ago, dedicated to seeking the exoneration of people believed to be wrongly sent to death row.

But Blackburn isn't stepping away from the Innocence Project of Texas because he's changing his mission. Actually, he blasted his colleagues currently leading the group of not having enough backbone to stand up to interests corrupting that mission.

The project is affiliated with the nationally known Innocence Project, headquartered in New York City. It is best known for winning the freedom of many death row prisoners for crimes they long had decried of not having committed.

But the national organization has strayed away from its core mission, lured away by big money and corporate interests, said Blackburn, who's based in Amarillo.

And that's why he had to walk away.

In his resignation letter sent to the board of directors of the Innocence Project of Texas, Blackburn said that the national outfit "went from being a small nonprofit to an organization with a multi-million dollar budget. As its size grew, so did its appetite for money and its need to control the reform movement. What was once a movement has now become a business."

Blackburn didn't accuse his Texas brethren of directly being part of that negative change, but he concluded he could no longer join hands with them due to their refusal to break off from NYC.

"They can keep their $100,000 'VIP' tables at galas, their friends from Goldman Sachs, and their need front control," he wrote in his resignation letter. "It is not for me."

Perhaps not for him, but the rest of Texas group doesn't have an issue with it.

They didn't get into details as to how they see things differently, but in their own statement, board members made it clear they're not going anywhere.

"Our board does not agree with the complaints Jeff made in his resignation letter concerning the Innocence Project," they wrote on the group's website.

"The Innocence Project of Texas will continue the important work to free the wrongfully convicted and reform the Texas criminal justice system and looks forward to continue its fruitful relationship with the Innocence Project and the Innocence Network."

Blackburn may be based in a small Texas panhandle city, but he has certainly made a name for himself much farther and wide across the region and the nation.

A lawyer for more than three decades, he has been involved for many years in trying to exonerate wrongly-convicted death row felons.

His best-known case stems from a drug bust in Tulia, Texas. During a four-year period in the early 2000s, Blackburn obtained full pardons and civil damages for 38 people involved in the case.

The State Bar of Texas named him "Criminal Defense Lawyer of the Year" in 2003. He also teaches law at Texas Tech University.

The FBI’s flawed justice

By Washington Post Editorial Board May 8

THE STUNNING admission by federal law enforcement officials of flawed testimony by forensic experts in hundreds of criminal cases has focused attention on the dubious use of hair analysis. Add this to a list of factors that has played a role in securing the conviction of people who later proved their innocence, including mistaken eyewitness identifications, bad informants and police or prosecutorial misconduct. Forensic technologies must be reassessed, but other parts of the system also need scrutiny if the chances of wrongful convictions are to be reduced.

The Justice Department and FBI, as The Post’s Spencer S. Hsu reported, have acknowledged widespread instances of scientifically indefensible testimony involving microscopic hair comparison by members of an elite FBI forensic unit. A review of cases over two decades before 2000 concluded that nearly every examiner — 26 of 28 — gave flawed testimony in ways that favored the prosecution. Of the cases, 32 defendants were sentenced to death. Fourteen of those have been executed or have died in prison.

The FBI errors do not necessarily mean defendants were innocent. But the confirmation of long-held suspicions about hair analysis, the inability of courts to keep junk science out of courtrooms (and hair analysis is not the only suspect technique) and the questionable reliability of other evidence provide reason to worry about how many innocent people are being convicted.

Consider, for example, the three defendants from the Washington area — Kirk L. Odom, Santae A. Tribble and Donald E. Gates — whose exonerations in separate cases were pivotal in prompting the hair analysis review. Examiners had testified in each case that hair found at the crime scenes matched that of the suspects, analysis later undermined by DNA results that exonerated the three men.

In each case, improper forensics combined with other failings to produce wrongful convictions. Mr. Odom, who spent 22½ years in prison for a rape he didn’t commit, was mistakenly identified by the victim after a questionable police lineup. For the other two, testimony from police informants with something to gain was a factor. Mr. Tribble spent 27 years and 10 months in prison for a murder he didn’t commit. Mr. Gates spent 28 years for a rape and murder he didn’t commit. In other cases, confessions came from susceptible people, or information that would have been helpful to the defense was withheld by the government.

With the exception of the rare bad apple, police and prosecutors don’t set out to convict the wrong person, but even the most well-meaning people can be affected by contextual or cognitive bias, particularly in a system with crushing caseloads and intense pressure. Better protections are needed. Steps in the right direction are improvements by D.C. police in procedures for eyewitness identification and the creation of a conviction integrity unit by the U.S. Attorney’s Office in the District.

But more needs to be done, including, as we’ve argued before, requiring the prosecution to share information with the defense more thoroughly and consistently. We hope the Justice Department undertakes an analysis not only of the breakdown in hair forensics but also of other vulnerabilities in the system.

Barry Beach: Investigations point to innocence

The following letter to the editor by Al Smith of Great Falls, Montana was published on April 1, 2015 by the Missoulian.

Lately I've been wondering why our justice system continues to deny mistakes were made 30 years ago during the prosecution of Barry Beach. Then, in disregard to testimony and evidence to the contrary, Montana has continued to defend those mistakes.

This nearly untenable position was recently compromised further by independent investigations. Two investigators, including John Cameron, a now-retired Great Falls Police detective who was instrumental in solving several “cold case” murders, looked at the Beach case. In his investigative report, Cameron concluded Beach is innocent.

Interestingly, two attorneys, Brant Light and Tammy Plubell, who both serve on the staff of Attorney General Tim Fox, know John Cameron and are familiar with his work. Yet the Office of the Attorney General turned a deaf ear to Cameron’s investigation. Cameron’s report is also now in the public domain; still Montana authorities have not acknowledged, let alone commented on the validity of his findings. I find it peculiar.

So are the Montana officials responsible for the continued incarceration of Beach treading on slippery ground?

It’s long been my contention the prosecutor of the Beach case, Marc Racicot and the then-Attorney General, Mike McGrath, plus those who followed them, steadfastly deny what they know to be the truth about the case. Is it done to protect the sterling reputations of those who are to blame for a terrible and costly miscarriage of justice? Just asking!

Additionally, our Montana Attorney General is aware misconduct occurred during and after the prosecution of the Beach case. A list of Articles of Misconduct were delivered with the signatures of over 200 Montanans requesting an investigation. As is typical, no action is pending.

We need a Montana Conviction Integrity Unit to insure a similar injustice is never again allowed to stand in Montana.

Alabama tried to kill a man who never should have been on death row

The following opinion by Kyle Whitmire was published on April 3, 2015 by AL.com.

If you want to understand why we should abolish the death penalty, consider the case of Anthony Ray Hinton.

If you don't want to understand, consider it anyway.

Authorities arrested Hinton in 1985, after a string of robberies at restaurants in Birmingham. In the first two robberies, the managers were killed and there were no witnesses or physical evidence to identify a suspect. After a third similar robbery at a Quincy's in Bessemer, the manager survived the shooting and later picked Hinton from a photo lineup.

Here's the thing, at the time of the robbery, Hinton had an air-tight alibi. He had been working in a warehouse 15 miles away. The warehouse was even locked, so Hinton couldn't have slipped out on his shift while no one was looking.

Prosecutors never charged Hinton with the Quincy's robbery, but they still used the manager there as a witness against Hinton in the other murders.

The proof they had to tie them all together - the supposed murder weapon, a Smith and Wesson .38 that had belonged to Hinton's mother.

A ballistics "expert" for the prosecution testified that the bullets from all three robberies matched that weapon. I put "expert" in quotation marks because of what we know now after analysis by multiple other experts - that the bullets from those three robberies couldn't be matched to each other, much less to Hinton's mother's gun.

Hinton didn't have the money for a qualified ballistics expert during his trial.

I'm going to take a moment now to rant before we get to the horrifying parts. All my life in Alabama, I've heard the arguments, not just in favor of the death penalty, but arguments that the death penalty we have isn't good enough.

• That the appeals take too long, and we should set a time limit of (insert your number here: 10 years, five years, a week, string 'em up behind the courthouse that day).

• That victims' families shouldn't have to go through all this.

• That we might have made mistakes in the past, but most of those exonerations have come because of advances in DNA evidence. Our science has improved our accuracy and cured the process of its problems.

That last one deserves particular attention, because it has given many of us a false sense of security. People are involved in this process, and because of that, the system will always be messy, imperfect, and sometimes downright malicious.

To see why, you have to consider what happened next to Hinton.

Hinton has been on death row for almost 30 years. During much of that time, appellate attorneys have fought to have the ballistics on the supposed murder weapon retested. The Equal Justice Initiative has been fighting for those tests since they took up the case in 1998.

Thankfully, the United States Supreme Court ruled in favor of the defendant last year, and last month, three experts from the Alabama Department of Forensic Sciences tested the gun and reexamined the evidence. They found the bullets from the three robberies didn't match each other, much less the supposed murder weapon.

Let's be clear here. For decades, Alabama prosecutors have fought like hell to prevent a second look at that evidence, and by doing so, they fought against justice, not for it.
Just so we know who's responsible, let's name a few of them.

• Former Jefferson County District Attorney David Barber.
• Former Alabama Attorney General Troy King.
• Current Alabama Attorney General Luther Strange.

None of these men should be able to sleep tonight.

And neither should we the voters who put them in office.

Had they been successful, the State of Alabama likely would have put an innocent man to death. Had they been successful, they would have been more guilty of murder as the man who went free on Good Friday.

"I shouldn't have sat on death row 30 years," Hinton said after his release Friday. "All they had to do was test the gun. But when you think you are high and mighty and you're above the law, you don't have to answer to nobody. But I've got news for you. Everybody who played a part in sending me to death row you will answer to God."

Don't think for a second that just because Hinton is free today, that the system worked. Hinton lost 30 years of his life. Justice will never be served.

We shouldn't abolish the death penalty because it's inhumane. There are people in the world who deserve to die - folks who have done unspeakable things.

Rather, we should abolish the death penalty because government can't be trusted to tell the difference between the folks who have it coming and those who don't.

Scalia’s Embarrassing Question: Innocence is not enough to get you out of prison.

The following analysis by Laura Bazelon was published in Slate on March 11, 2015.

In May, the Innocence Network will hold its annual conference at a glitzy Hilton in Orlando, Florida. Lawyers, students, and activists from all over the country who work to overturn wrongful convictions will gather to do all the regular conference-like things: attend panel discussions, listen to inspirational talks from boldface speakers, network, and socialize. There is also a part of the Innocence Network Conference that is unique and wonderful. Every year, it brings together scores of wrongfully convicted men and women, offering a variety of programs geared toward their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in the hotel’s ballroom, when each exonerated man and woman is invited up to the stage. One by one, they come forward. They are male, female, black, white, Latino, Asian, and Native American. Some are still young and strong, others walk slowly and with assistance. They hail from the Deep South, the Midwest, the Rockies, the East and West coasts, from big cities and tiny rural communities. As their names are called, so are the number of years they served behind bars: five, eight, 13, 18, 28, 34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then another. When every last exoneree has taken his or her place, scores of them are standing shoulder to shoulder, a dizzying tableau of faces and stolen lives. The weight of the collective injustice is heart-stopping. Then the music starts and the exonerees sing and dance together. The hope and joy in the room is deeply moving.

But here is a dirty little secret about the exonerated, some of whom were on death row, some just days away from execution. They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal process—what the uninitiated like to call a “technical error.” Prosecutors buried crucial evidence, witnesses lied, police coerced false confessions, defense attorneys performed so poorly that they basically failed to advocate at all. These “technical” breakdowns matter because they violate the Constitution, which guarantees all criminal defendants the right to be free from police and prosecutorial abuses, to have access to favorable evidence in the state’s possession, and to have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is extremely difficult—if not outright impossible—to win your case by advancing the simple argument that you are innocent. Sounds crazy, right? But it’s true. The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other “technical” violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

This judicial perversion started with the Supreme Court’s 1993 decision in Herrera v. Collins, a textbook example of bad facts making bad law. Leonel Torres Herrera was charged with shooting Officer David Rucker in 1981 and leaving him to die beside his patrol car in a pool of blood. Also left at the crime scene was Herrera’s Social Security card. Officer Enrique Carrisalez and his partner saw Herrera’s car speeding away and gave chase. Herrera pulled over, and when Carrisalez approached, Herrera shot him in the chest. Carrisalez died less than two weeks later.

The state tried the Carrisalez case first, and evidence introduced against Herrera was overwhelming. Carrisalez’s partner testified that Herrera was the shooter, as did the victim himself in the days before he died. The license plate of the killer’s car matched that of Herrera’s girlfriend; when Herrera was arrested, he had the car keys in his pocket. He also had a handwritten letter in which he apologized for the killings. A jury convicted Herrera of capital murder, he was sentenced to death. After the verdict, Herrera pleaded guilty to killing Rucker.

Nine years later, Herrera petitioned the Supreme Court to overturn both convictions. Because so many years had passed and because Herrera had been convicted in state court, he had to use a legal vehicle called habeas corpus, a centuries-old, last-ditch remedy that allows prisoners to argue that their imprisonment violates the federal Constitution. Because there is a strong presumption that the criminal justice system functioned correctly in the first instance, only a fraction of these claims succeed.

Herrera argued that he should be among the lucky few because newly discovered evidence proved his innocence. The evidence consisted of three sworn statements. One was written by a lawyer for Herrera’s dead brother, Raul, claiming that Raul confessed to him that he had killed Rucker and Carrisalez. The second, signed by a former cellmate of Raul’s, claimed the same thing. The third, signed by Raul’s son, claimed that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera’s innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera’s innocence claim, quite simply, was a farce. And yet it was this claim that the Supreme Court chose to review when deciding a profoundly important question: whether any inmate with newly discovered evidence of innocence could argue that his conviction had been obtained in violation of the constitutional guarantees of due process and protection against cruel and unusual punishment.

Writing for the majority, Chief Justice William Rehnquist said that Herrera’s constitutional argument had “elemental appeal” but declined to endorse it because federal courts were not supposed to “relitigate state trials.” Herrera’s true remedy, Rehnquist said, rested with the president or the governor of his state, whose power to grant clemency was the “fail safe in our criminal justice system.” Entertaining actual innocence claims brought years after the fact were simply too “disruptive” and unfair to the state, which needed to have things settled once and for all. Rehnquist mused that even if one assumed, hypothetically, that an innocence claim could be brought, the bar for the prisoner to clear “would necessarily be extraordinarily high.”

Concurring in judgment, Justices Antonin Scalia and Clarence Thomas would have gone even farther. Taking issue with the majority’s mere hypothetical entertainment of an innocence claim, Scalia wrote: “There is no basis, tradition, or even in contemporary practice for finding that in the Constitution the right to demand judicial consideration of newly discovered evidence of innocence brought forward after a conviction.” He concluded, “With any luck, we shall avoid ever having to face this embarrassing question again.”

In 1996, things got even harder for convicted prisoners. Congress passed a law declaring that federal courts could not overturn a conviction challenged in habeas corpus petition unless the state court that heard the case first was either “unreasonable” in applying a law that was clearly established by the United States Supreme Court or the state made factual findings that no reasonable person would agree with.

The profound impact of the new law, coupled with the Herrera decision, was brought into stark relief in the case of Troy Anthony Davis. Davis, a young black man, was charged with shooting and killing Mark MacPhail, a white police officer who was trying to protect a homeless man from being beaten in a parking lot in Savannah, Georgia. At Davis’ trial in 1991, seven people identified him as the killer, and two others testified that Davis confessed to them after the fact. The murder weapon was never recovered, but bullets and shell casings recovered from the scene came from a .38-caliber pistol. One of the prosecution’s witnesses was a man named Redd Coles. On cross-examination, Coles conceded that he had argued with the homeless man on the night of the crime and that he owned a .38 pistol. The jury convicted Davis in less than two hours.

Throughout the legal proceedings, Davis maintained his innocence. After his conviction, as the jurors prepared to deliberate on the appropriate punishment, Davis asked them to “spare my life,” explaining that he had been convicted for “offenses I didn’t commit.” The jury returned with a death sentence. Davis appealed all the way up to the Georgia Supreme Court. He lost. Then he began filing habeas corpus petitions, first in Georgia state court and then in federal court. He lost again.

Then, in 1996, new evidence surfaced. Of the nine crucial prosecution witnesses, seven recanted some or all of their testimony, stating that they had felt pressure to identify Davis as the shooter when he was not. Three witnesses signed sworn statements that Redd Coles had confessed that he was MacPhail’s killer. Davis went back to state court with the new evidence, but the courts refused to hear it, saying it was too late. Davis went back to the federal courts, which agreed that it was too late. Out of options, Davis appealed to the United States Supreme Court, arguing that the new evidence should be heard because he was actually innocent.

The “embarrassing question” was back. In a short order issued on Aug. 17, 2009, the Supreme Court instructed a federal trial court judge to hold a hearing so that the recanted testimony and new evidence of Coles’ confession could be aired. Scalia and Thomas issued a blistering dissent. The Supreme Court, Scalia pointed out, had sent the trial judge on a “fool’s errand” because it has “never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually innocent.’ ” It was pointless to find Davis innocent because innocence, by itself, was not a legal basis to overturn the conviction.

The trial judge held a hearing nonetheless and concluded that Davis had not shown enough evidence to cast doubt on his conviction. Davis appealed, arguing that the trial judge had shown a “clear hostility” to his case. He lost, appealed, and lost again. Meanwhile, Davis’ case had gained unprecedented international attention. More than a half-million people signed a petition asking the Georgia State Board of Pardons and Paroles to commute Davis’ death sentence. Among the signatories were Archbishop Desmond Tutu, former President Jimmy Carter, and Pope Benedict XVI. The board denied the petition, and President Obama declined to intervene in the case.

On Sept. 21, 2011, one hour before Davis was scheduled to be executed, the Supreme Court reviewed his petition. A few hours later, they denied it without comment. Davis was now officially out of mercy, out of appeals, and out of time.

Asked to speak his final words, Davis told the MacPhail family that he grieved for their loss. “But,” he said, “I am innocent.” He continued, “For those about to take my life, may God have mercy on your souls.” The official time of death was 11:08 p.m. More than 1,000 people attended the funeral.

Whether proof of innocence should be grounds for release—from decades of wrongful imprisonment and even from death—is an “embarrassing question” but not in the way that Scalia meant. It is an embarrassment—it is a scandal—that no such right exists when we know how often the system gets it wrong. Last year alone, 127 men and women were freed from prison after their convictions were overturned. Because of the way that our system is structured, most fall into the category of the “lucky” ones—lucky because cheating, lying, laziness, or negligence made their legal proceedings grossly unfair.

There are many more still to be freed. The most conservative estimate is that there are somewhere between 10,000 and 20,000 innocent people locked up in the United States today. How many more Troy Davis cases will the Supreme Court tolerate before it does what is so obviously the right thing? If the execution of an innocent person isn’t cruel and unusual punishment, what is?

Lara Bazelon is a the director for the Loyola Law School Project for the Innocent in Los Angeles and a visiting clinical professor at Loyola.

John Grisham: Bill would hurt ability of wrongly convicted to prove innocence in Oklahoma

The following opinion by John Grisham was published by News OK on March 6, 2015.

A bill in the Oklahoma House could seriously hinder the ability of the wrongfully convicted to prove innocence, a reality that could allow the perpetrators of crime to continue to inflict harm on Oklahomans while the wrong person is incarcerated.

House Bill 1045 by Rep. Scott Biggs, R-Chickasha, would permit inmates to file a single petition in state court challenging their conviction, and would require the petition to be filed within two years from the date of sentencing. If this bill were to become law, these arbitrary limits could result in thousands of inmates, including the innocent, being left with no legal avenue to challenge their convictions.

Oklahoma’s current post-conviction relief law is straightforward. There is no time limit for filing post-conviction relief petitions, nor is there a cap on the number that can be filed in state court. Since 1993, Oklahoma has seen 28 exonerations, among them Ron Williamson, who was wrongfully convicted of capital murder. Williamson was five days away from execution and his petition for post-conviction relief had been denied by two Oklahoma state courts. A late appeal to a federal court stopped Williamson’s execution after the court concluded that he was denied a fair trial.

As Oklahoma prosecutors prepared to retry Williamson, more than 16 years after the crime occurred, Williamson and his co-defendant, Dennis Fritz, were able to prove their innocence through DNA evidence that didn’t exist at the time of their original trials.

Williamson’s trial was replete with errors that nearly cost him his life. Post-conviction proceedings are sometimes the only opportunity courts have to correct trial-level mistakes — mistakes that only become apparent long after the original trial has come to a close. These errors — literally matters of life and death — may take much longer than two years to surface, and may take more than one petition to correct.

Williamson was one of the lucky ones; his case involved DNA evidence and was overturned in federal court. While HB 1045 would not apply to someone seeking to prove innocence through DNA evidence, DNA evidence alone often does not expose wrongful convictions. In 2014, there were 126 exonerations, a national record, but only 22 involved DNA evidence. In Oklahoma, 17 of the state’s exonerations have not involved DNA evidence.

Just as chilling is the possibility that, while an innocent person is in prison, the real perpetrator could remain free and a threat to public safety. In the 11 Oklahoma exonerations that involved DNA evidence, a real perpetrator was identified in seven of those cases. Because police were focused on the wrong person or persons, and because the wrong person was convicted of those crimes, five of these actual perpetrators were able to go on to commit five rapes and two other violent crimes.
HB 1045 would erect an unnecessary barrier to proving innocence — a feat that is already extremely difficult. It also could pose a serious threat to public safety by preventing the innocent from exposing the truly guilty. Let’s not mess with post-conviction relief in Oklahoma. There’s no need to fix something that isn’t broken.

Grisham has authored numerous works of fiction and nonfiction including “The Innocent Man,” about the convictions of Williamson and Fritz. He is a former criminal defense lawyer and a member of the Innocence Project board of directors. HB 1045 was approved by the House and sent to the Senate for consideration.

Does Latest NC Exoneration Highlight a Troubling Trend?

The following was published and broadcast by Public News Service - NC on February 2, 2015.

ALEIGH, N.C. – The recent exoneration of Joseph Sledge in North Carolina is just one of dozens nationally in the past year, and a case that some say highlights the need for legal system reforms.

Sledge spent 38 years behind bars for murder before missing evidence led to his release.

It's a story similar to those of Henry McCollum and Leon Brown, both of whom were exonerated in September after 30 years in prison.

Vernetta Alston, an attorney who represented McCollum, calls it a troubling trend.

"In Joseph Sledge's case, we're seeing the same things that we saw in McCollum and Brown,” she points out. “Evidence was mishandled, these guys were manipulated, and snitch testimony was allowed in.

“And it's a huge problem across our system, and one that lawmakers need to think about doing something about."

McCollum was on death row when he was exonerated, and Alston says if Sledge had been there, he could have been executed by now.

She maintains many older cases should be re-examined, and that greater accountability is needed in law enforcement and crime labs.

According to a new report, 2014 saw a record 125 exonerations nationally.

Kristin Collins, associate director of communications with the Center for Death Penalty Litigation, says murder convictions should be built on fair trials and iron-clad evidence.

But she says that's often not the case, and explains that during Sledge's trial in 1978, there was overt racism and evidence was ignored.

"These cases, they're just so sloppy a lot of times, and the idea that we could execute people or keep them in prison for life – we need a better system if we're going to do that," she stresses.

The North Carolina Innocence Inquiry Commission was launched in 2006. Alston says it's been instrumental in examining post-conviction claims.

"An innocence inquiry commission just has such tremendous subpoena power, in terms of being able to get records and compel agencies to turn over evidence and records in a way that we simply can't, through the legal process," she states.

Sledge is the eighth person exonerated by the commission. Alston says there are many more cases awaiting investigation than the commission can handle. - See more at: http://www.publicnewsservice.org/2015-02-02/social-justice/does-latest-nc-exoneration-highlight-a-troubling-trend/a44279-1#sthash.8egxEWMH.dpuf

DNA evidence should be permitted

The following editorial was published by the Asbury Park Press on January 14, 2015.

The aim of the American justice system is, in essence, a search for the truth, to ensure the guilty pay for their crimes and the innocent go free.

The Monmouth County Prosecutor's Office seems to have forgotten that, and is rightly being forced in court to justify itself in the face of its refusal to test newly rediscovered DNA evidence that could exonerate a convicted man. A court hearing scheduled Monday before Superior Court Judge Ronald L. Reisner to force the county to do the testing has been postponed until February 27.

Dion Harrell, 48, of Long Branch, who was convicted in 1992 of sexually assaulting a 17-year-old girl there, has always maintained his innocence. Although he has been out of prison for about 17 years after serving four years of an eight-year sentence, he still wants to clear his name. But the Monmouth County Prosecutor's Office is blocking Harrell's attempt to have DNA from the 1988 crime analyzed to prove one way or another whether he is the man who committed the sexual assault.

The prosecutor's reason for not agreeing to have the DNA tested is based on a peculiar reading of a state law that allows for DNA testing on evidence in the cases of convicted defendants currently imprisoned who are seeking exoneration. Since Harrell is out of jail, the prosecutor says, he is out of luck.

Assistant Monmouth County Prosecutor Mary Juliano stated in court papers that the testing would prolong the final disposition of the case, writing that "The State believes the conviction is entitled to finality."

That is an outrageous statement: "The conviction is entitled to finality?" Shouldn't Harrell's desire for justice trump the prosecution's desire for the conviction to be put to bed once and for all. There is always a public interest in finding the truth.

If Harrell is innocent, that means the perpetrator of the Long Branch rape may still be at large. The conviction rested on a couple of thin reeds to begin with: the victim's eyewitness identification of him and expert testimony that he could not be excluded as the rapist because of his blood type.

Any reasonable person would have to agree that Harrell has yet to get free from the shadow his possibly wrong conviction has cast over his life. His address is readily displayed on the Internet on the state's sex offender registry, which has led to trouble finding housing and employment.

According to the New York-based Innocence Project, which provides free representation to convicts seeking to prove their innocence and is working on behalf of Harrell, there have been 325 exonerations nationwide as a result of DNA testing. There have been eight exonerations in New Jersey.

With its ongoing battle to refuse to test the DNA, the Monmouth Prosecutor's Office is thwarting justice in two ways. It isn't allowing Harrell to clear his name and it could be allowing the true perpetrator to escape justice. It's a double black eye for the office.

A Man Wrongfully Incarcerated Becomes a Prison Reformer

by Jeffrey Deskovic, published by GoodMenProject.com on December 19, 2014

After spending 16 years wrongfully incarcerated, Jeffrey Deskovic could have re-entered society bitter and downtrodden. Instead, he began to exhaustively work to help others in his situation.

I spent 16 years, from ages 17 to 32, in prison in New York for being wrongfully convicted of murder and rape. This was prior to being proven innocent via DNA testing eight years ago, which identified the actual perpetrator, who was subsequently convicted. Thanks to a full scholarship from Mercy College, I completed a B.A., later obtaining a Masters Degree from the John Jay College of Criminal Justice. I am also the director of The Jeffrey Deskovic Foundation for Justice, which I founded to fight wrongful convictions.

My views on prison reform are shaped by personal experience, formal education, and informal studying. There are three important reasons why we should care about prison reform, rather than thinking “who cares what happens to prisoners, they committed crimes.” If we subject incarcerated people to bad prison conditions, we are deterring rehabilitation. People are sent to prison as punishment, not for punishment. As a society, we lose our humanity, and our moral standing in the world-at-large, if we treat incarcerated people badly.

Here are ten ideas on prison reform:

Separate youth from adults.
At 17 years of age and weighing approximately 150 pounds, I was sent to a men’s maximum security facility that was filled with fully developed adults, many of whom were guilty of having committed serious violent crimes. To say that I was vulnerable was an understatement, and over the years I was repeatedly physically—though thank God not sexually-assaulted. Youth convicted of crimes should be housed in Division For Youth Facilities until 21, even if they have been charged as an adult, then transferred to a facility set aside for incarcerated people 21-25, before co-mingling them with the general population. To facilitate visitation, recognized as an important factor in formerly incarcerated people transitioning to a crime free life, there should be one such designated facility near the city, and one in upstate New York. Currently, visitors often must travel 5-8 hours each way to facilities far away: so time consuming and costly a proposition that they often don’t bother.

Separate violent offenders from non-violent offenders.
Incarcerated people convicted of non-violent offenses should not be housed with those convicted of violent crimes. Additionally, regardless of the charges, those whose actions demonstrate that they choose to conduct themselves violently while incarcerated should be separated from those that don’t. I sometimes found myself, and others I knew who eschewed violence, forced to physically defend ourselves.

Segregate vulnerable populations.
Incarcerated people convicted of sex-offenses, or with mental health issues, or otherwise deemed by security to be vulnerable to abuse, should be separated from the general population.

Eliminate visitation deterrents.
Staff often are verbally abusive during visitor processing. Once admitted to the visiting room, visitors often are made to wait for up to two and half hours before the incarcerated person shows up. Incarcerated people should be informed immediately that they have a visit.

Aggressively stop staff verbal abuse.
Some of the correction officers verbally abused the incarcerated, while their co-workers and supervisors not only looked the other way, but often laughed and even sometime participated.

Upgrade medical care.
The medical staff’s answer to nearly everything was issuing Tylenol and telling incarcerated people to come back the next day. It often took a month or longer to see a doctor. Some of the nurses and doctors had bad attitudes. Staff sometimes were more interested in saving the state money than the care of their patients: once a doctor refused to sign off, for financial reasons, on a trip to an outside doctor to treat a badly injured pinky because I “still had partial movement”. I now have a permanent disability, unless I want to have it broken and reset. In some states, medical staff have been discovered not to have received an accredited education; a review of qualifications is in order.

Improve meal quality.
Meals sometimes were not fully cooked, or burned, while at other times were very greasy. Staff simply did not care. Portion control was an issue: Sunday “dinner” was often 2 pieces of baloney, an old hot dog bun, a bag of potato chips that was mostly air, ¼ of a slice of canned peaches, and a bowl of soup. Some soup consisted of leftover ingredients previously served out two or three times and had merely been mixed with plain water; hence most would not eat it.

Bring back college.
The recidivism rate was extremely low for incarcerated people who received a college education. Why? Education equips incarcerated people for gainful employment and expands their horizons. It is better to spend money for college education on the front end, estimated at costing $5000 more per incarcerated person per year, than to spend $60,000 for reincarceration, with the numbers provided from Gov. Cuomo. The formerly incarcerated would be paying taxes rather than draining them, and we could prevent future crime victims. Rhetoric aside, college education is a serious crime prevention initiative.

Update vocational curriculum and insist that instructors instruct.
Many instructors were simply there for a paycheck and did not actively teach. They had no oversight. Additionally, the curriculum was obsolete.

Provide religion based meal options.
In Elmira and nearly all prisons in New York with the exception of Green Haven, Jewish incarcerated people were not given hot meals: everything was cold cuts, tuna fish, fresh vegetables and fruits. An exception was Hanukah, where warm meals were prepared and served after the general population. Why couldn’t similar arrangements be made all the time? Muslims too should be provided with food within their dietary restrictions—it would not involve additional cost, it just means that a decrease of one type of food supply and an increase in another.

It may be hard for one person to push for these reforms. But standing together gives activists a powerful and influential voice. Please stand together with the Deskovic Foundation for Justice this Holiday season and help us fight for criminal justice reform.

Lawyer lied during Kirstin Lobato’s Nevada Supreme Court arguments

by Special to the Las Vegas Tribune November 13, 2014

A minimum-wage convenience store clerk who lies under oath in court can be convicted of perjury and sentenced to prison. In contrast, a highly paid lawyer can fearlessly lie his or her head off when publicly appearing before the Nevada Supreme Court.

We know that because of what occurred during oral arguments before the full Nevada Supreme Court on September 9, 2014 concerning Kirstin Blaise Lobato’s habeas corpus appeal. The attorney representing the
State of Nevada — Clark County Assistant District Attorney Steven S. Owens — repeatedly lied about issues related to Ms. Lobato’s case.

The Supreme Court’s response has been deafening silence. Owens’ dishonest assertions include:

1) Owens lied twice that Ms. Lobato made a “confession” related to Duran Bailey’s homicide in Las Vegas on July 8, 2001. (Oral Arguments [OA] at 9, 13. See note at end.) The truth is that during Ms. Lobato’s trial the State didn’t assert in its opening statement, closing argument, or present trial testimony she made a “confession” to Bailey’s homicide. It exists only in Owens’ imagination.

2) Owens lied, “She was convicted by her own words at the trial, and her own words belie the argument that she is actually innocent.” (OA at 7-8.) The truth is there is nothing incriminating regarding Bailey’s homicide in her police Statement or comments attributed to her — none of which even include the date, location, or manner of Bailey’s death from a head injury. Furthermore, Ms. Lobato’s habeas petition details her conviction was due to Metro Det. Thomas Thowsen’s extensive false testimony regarding her Statement and comments, and his alleged investigations; and more than 275 unrebutted instances of prejudicial prosecutor misconduct during her trial — none of which were objected to by her lawyer.

3) Owens lied, “Shortly thereafter [Bailey’s homicide], Kirstin Lobato in Panaca, Nevada, started talking about a severed penis.” (OA at 7)
The truth is Ms. Lobato mentioned in her Statement that prior to June 20, 2001 she had a conversation with a woman about the Las Vegas rape attempt she fended off with her pocket knife. Also, her habeas
petition includes unrebutted new evidence by nine alibi witnesses who were informed by her beginning in May 2001 that she used her pocket knife to fend off a would-be rapist in Las Vegas.

4) Owens lied that Ms. Lobato’s vague comment referring to a conversation with her father is evidence of a guilty mind to Bailey’s homicide. (OA at 8) The truth is her comment refers to a conversation with her father in June 2001 — weeks prior to Bailey’s homicide.

5) Owens lied, “But nothing at the crime scene is going to help them because the jury already knew that evidence there pointed away from Kirstin.” (OA at 13) The truth is Ms. Lobato’s unrebutted new exculpatory crime scene evidence establishes among other things that Bailey’s killer made all the shoeprints imprinted in blood and they don’t match Ms. Lobato; Bailey’s cutting and stab wounds were not inflicted by her pocket knife; and Bailey was alive when his rectum injury occurred, proving she was convicted of a non-existent violation of NRS 201.450. Furthermore, two jurors determined after reviewing all the new evidence that “it could have possibly resulted in either a hung jury or Ms. Lobato’s acquittal.”

6) Owens lied Bailey’s time of death isn’t “critical.” (OA at 10) The truth is the State’s theory of Ms. Lobato’s guilt depended on convincing the jury Bailey died before 7 a.m.

7) Owens lied the jury “rejected” Ms. Lobato’s alibi evidence she was in Panaca the evening of July 8. (OA at 10) The truth is the State conceded during its closing argument it is factually true she was in Panaca from at least “11:30 a.m. through the night.”
8) Owens lied in his assertions Ms. Lobato’s unrebutted new expert forensic evidence Bailey died after 8 p.m. isn’t important. (OA at 10)  The truth is the State conceded at trial she was in Panaca 165 miles from Las Vegas at that time, so it is impossible she committed his homicide.

9) Owens lied, “We have here a couple statutory remedies that Ms. Lobato could avail herself of. … and the other is a motion for DNA testing…” (OA at 12) The truth is Ms. Lobato’s petition for post-conviction DNA testing of crime scene evidence — including semen recovered from Bailey’s rectum — was vigorously opposed by the Clark County D.A. and denied by Judge Valorie Vega. The Nevada Supreme Court dismissed her appeal, “Because the order is not appealable.”

The foregoing is only a partial litany of Owens’ gross dishonesty throughout his argument. It was a continuation of Owens’ dishonesty related to Ms. Lobato’s case. His false public statements to KLAS-TV (Las Vegas), the Associated Press, and the Las Vegas Review-Journal, and in documents filed in the Nevada Supreme Court, are detailed in a letter sent to Clark County District Attorney Steven Wolfson dated July 3, 2012. That letter states: “Mr. Owens’ pervasive dishonesty is a gravely serious matter.” (p. 11) (The letter is online at, http://justicedenied.org/kl/wolfsonletter.pdf.) Wolfson’s inaction is evidence he expects less honesty from his deputies than responsible parents expect from their four-year-old child.

The Supreme Court has the authority to hold Owens in contempt of court for his dishonest and deceptive conduct and impose sanctions, and to refer him to the State Bar of Nevada for investigation. Owens’ unrestrained dishonesty that denied Ms. Lobato her right to a fair hearing is “good cause” for the Court to exercise its authority to sua sponte strike his arguments from consideration of her appeal.
The Nevada Supreme Court should hold Steven S. Owens accountable for his contemptible conduct and take the most extreme actions possible to protect Ms. Lobato’s rights, and the integrity of the Court and its deliberation process.

* * *

Hans Sherrer is President of the Justice Institute based in Seattle, Washington, that promotes awareness of wrongful conviction and conducted a post-conviction investigation of Ms. Lobato’s case. Its website is, www.justicedenied.org.

I Feared I’d Die in Prison for Maintaining My Innocence

The following article by Fernando Bermudez was published by the New York Times on November 13, 2014.

Fernando Bermudez spent 18 years prison after being convicted of murder in 1991, before being found innocent. Married with three children, he earned a bachelor's degree in behavioral science and is considering going to law school. As a speaker, he has given more than 250 talks in the United States and overseas.

Imagine yourself happy, on the verge of a career, promotion or meaningful relationship, then suddenly trapped in prison, fighting for freedom and your sanity over a crime you did not commit.
In 1991 I never imagined this would happen to me when I was arrested, convicted and incarcerated for murder. My wrongful conviction stole over 18 years of happiness for my family and I until Justice John Cataldo of State Supreme Court in Manhattan dismissed the charges and declared me actually innocent in 2009. He ruled that the police and prosecutors had used perjured testimony and illegal identification.

I wrestled with many fears during my incarceration, surrounded by violence. But my greatest fear was that I could die in prison maintaining my innocence. Year after year, I witnessed the parole board deny release to inmates who maintained their innocence, like one friend who died in prison after being denied parole every two years. Others used drugs to numb the painful reality of being trapped while innocent.

If I had stayed in prison, I would have been eligible for an appearance before the board this year. How would I have passed through the eye of that legal needle? I often thought. Exonerating evidence had long been accumulating since 1992. As an innocent man I would have poured my heart out to them with the truth that I was willing to die for. Daily, I was mentally and physically tortured with thoughts that a parole board would consider me in denial and reject my freedom.

Luckily , after years of fighting, with the help of pro bono lawyers, I won my case, which prosecutors never appealed. But the horrible, looming dilemma I faced still pains me.

Martha Coakley, stop lauding bad science

The following opinion by Lee Scheier was published in the Boston Globe on October 16, 2014.

AFTER COMING under attack in an political ad for not doing enough to protect children, Martha Coakley, the Democratic candidate for governor, defended her record. In a large above-the-fold photograph published in the Globe Oct. 3, Coakley is seen standing next to Deborah Eappen, mother of Matthew Eappen, the baby whom Louise Woodward was charged with shaking to death in 1997.

Coakley, the prosecutor in that infamous trial, set up the photo op ostensibly to remind the public of her commitment to protecting children. If so, Coakley must think Massachusetts voters have short memories.

Although Woodward was found guilty of second degree murder by the jury, trial judge Hiller Zobel reduced the sentence to manslaughter and set Woodward free. Zobel’s skepticism of the justice of Woodward’s murder conviction was prescient: Dr. Patrick Barnes, Coakley’s chief expert witness in the case, later publicly renounced his own trial testimony as based on flawed scientific assumptions.

Coakley’s odd invocation of this case demands that we look at the facts. What cannot be lost in all of this political maneuvering is the truth about the Woodward case and all the thousands of shaken-baby cases before and since Woodward. The truth is that Martha Coakley’s deft misuse of science actually came very close to sending an innocent caretaker to prison for life.

At the heart of the Woodward prosecution — and many others like it — is the pseudoscience of the shaken-baby syndrome diagnosis. Anecdotal studies by pediatric neurosurgeon Norman Guthkelch in 1971 and radiologist John Caffey in 1972 and 1974 asserted that the presence of the so-called “triad” — subdural and retinal bleeding plus brain swelling — in an infant constituted certain proof that the last caretaker to hold a baby had “shaken” that child to death. Under Guthkelch and Caffey’s theory, this could be the only cause of death. Because of these studies — and because nearly all shaking cases have no eyewitness — the presence of the triad was the only evidence necessary to prove murder.

In recent years, however, experts have become increasingly skeptical. “The problem lies with Caffey’s level of certainty that subdural bleeding along with bleeding in the eyes could only be caused by shaking,” says Louis Fogg, a professor at Rush University and the former president of the Chicago chapter of the American Statistical Association.

Fogg, who received his doctorate from the University of Chicago in scientific methodology, is an expert in designing and evaluating scientific research. He has concluded: “[Caffey] is manufacturing a degree of certainty that doesn’t exist from his research. A reasonable person can’t look at this research and say it is proof of guilt beyond a reasonable doubt. There are a lot of doubts here. This is not the kind of stuff you can send people to jail for.”

Martha Coakley’s deft misuse of science in the shaken-baby trial actually came very close to sending an innocent caretaker to prison for life.

Fogg goes on to note that all of the many published studies that purport to confirm the validity of shaken baby syndrome are false. “Every study accepts nonscientific evidence as if it is scientific,” he explains.

Doubts about shaken baby syndrome have grown considerably since it has been established that many diseases, medical conditions, short accidental falls, or re-bleeds also manifest the identical “triad” of clinical signs. Indeed, it likely was an injury from a short accidental fall weeks before Matthew Eappen died, which re-bled later — not any supposed shaking by Louise Woodward — that caused his death.

Barnes, the expert Coakley relied on to convict Woodward, is one of the physicians who has questioned the legitimacy of the diagnosis. When asked on PBS’s Frontline in 2011, “If you were called to testify in the Woodward case today what would you say?” Barnes responded, “I would say that you cannot select out, accuse, indict, or convict any particular caretaker based on the medical evidence that we have.”

Perhaps most tellingly, Dr. Gulthkelch himself — one of the scientists who first posited the theory — has since voiced concerns about its application in the criminal justice system.

Nonetheless, in the face of rigorous scientific evidence to the contrary, many in the medical community still claim that shaken baby syndrome is a valid diagnosis because so many within the medical community support it. But science is not a popularity contest. After all, Galileo was the only scientist of his day who believed that the earth revolved around the sun.

And this consensus does nothing to alter the fact that, to this day, there has never been an experiment that proves a causal link between shaking a baby and death. “An association alone between shaking and the triad contains so much inherent doubt that no jury in good conscience should convict on that evidence alone,” says Fogg. “You need strong experimental evidence of causation if you’re going to send someone to prison.”

This lack of strong experimental evidence of causation did not stop Coakley from trying to send Woodward to prison for life. And despite the growing chorus of scientists casting doubt on shaken baby syndrome, such prosecutions continue: In Middlesex County, nanny Aisling Brady McCarthy currently stands accused of shaking 1-year old Rehma Sabir to death. Prosecutors should hang their heads in shame for blindly accepting bad science and bringing these cases to court.

Indeed, Coakley nearly sending a young, innocent woman to prison is nothing to be proud of. It is certainly not worthy of a photo shoot in a political election.

Lee Scheier is an investigative journalist who has written extensively for the Chicago Tribune and many other publications. He has spent the last eight years researching a book on shaken-baby syndrome.

Yet another exoneration demonstrates the desperate need for reform

The following commentary by Rob Schofield was published by the Progressive Pulse on Octobe 17, 2014.

You know something’s dreadfully wrong with your system of criminal justice when the full exoneration of innocent men convicted of heinous crimes keeps happening over and over. Another one occurred in North Carolina today when Willie Womble — a man who has spent 39 of his 60 years on the planet incarcerated for a crime he did not commit — was cleared of a crime that occurred in 1975.

Good lord! How do the still-living people who had a role in such a miscarriage of justice sleep at night?

Obviously, there’s no getting Mr. Womble back his life that the people of North Carolina and their officers and employees wrongfully and tragically stole, but here are a few things that Gov. McCrory ought to consider doing immediately:

1) Ordering the immediate commutation of all death sentences in the state to life in prison,

2) Taking whatever steps are necessary to provide for a dramatic increase in the budget and staffing of the Innocence Inquiry Commission (and maybe the private nonprofit known as the NC Center on Actual Innocence as well) along with the directive that it (they) undertake a review of a vastly larger number of the state’s existing murder convictions — if not all of them, and

3) Announcing that he will no longer approve of any new death sentences in the state until — at a minimum — a complete and full review of every such case has occurred.

NC Innocence Inquiry Commission a lifesaver for innocent, death row inmates

The following opinion by Lyle C. May was published on September 17, 2014 by the Charlotte News & Observer.

On Sept. 2, 2014, after spending 30 years on death row, a travesty of justice was averted when Henry Lee McCollum was acquitted of the 1983 rape and murder of Sabrina Buie. Henry’s brother, Leon Brown, was also acquitted of the rape and released. Had it not been for Brown’s 2009 application to the North Carolina Innocence Inquiry Commission, McCollum would still be on death row.

In fact, had it not been for the connection between the two brothers in the Buie case, the commission would not have reviewed Henry’s part. For some inane reason the commission cannot investigate death penalty cases until a prisoner’s appeals have been exhausted, and the defendant files a claim. The problem with this is when a death row prisoner exhausts his or her appeals, they are executed. How incredibly fortunate for Henry there has been a de facto moratorium on the death penalty in North Carolina since 2007.

This was too close. As it stands, Henry and Leon had their youth stolen from them by overzealous, blind SBI agents, impressionable jurors, ineffective attorneys and a prosecutor who brags about his oratory power to persuade people rather than relying upon the facts or evidence in a case. How many more cases on death row are just like Henry McCollum’s? This is not an aberration, his is the eighth acquittal on North Carolina’s death row.

The difference between the previous seven acquittals and Henry is that an objective commission had a hand in clearing Henry and Leon of any wrongdoing. The first seven had to rely on their appellate attorneys and the minimal resources available to them. One wonders why Henry’s attorneys, after three decades, were incapable of freeing him; or why, with a little bit of digging, exculpatory DNA evidence was so easily found by the commission. These questions may seem complex, but they underline a common problem with many appellate attorneys who represent death row prisoners: The bare minimum is the status quo.

In Henry’s case, the bare minimum in 1991 put him back on death row after a new trial. His attorney tried to coerce Henry to confess to a crime he did not commit. This is inexcusable. With so many people against indigent, intellectually challenged defendants like Henry McCollum, it’s a miracle this man made it home alive. All glory to God indeed, Henry.

Christine Mumma, executive director of the N.C. Center for Actual Innocence, mentioned some lessons learned from the exoneration of Henry McCollum. What the public needs to be aware of is that the horrible circumstances of injustice in the Buie case are a culture in North Carolina death penalty cases, not some isolated event. Maybe, if the Innocence Commission were to work in conjunction with appellate attorneys to defend their clients, 31-year prison terms by innocent men can be avoided. At the very least the commission can demonstrate what it means to be true representatives of justice.

Lyle C. May is a death row inmate at Central Prison in Raleigh. He received two death sentences for the 1997 double murder in Asheville of Valerie Sue Riddle and her son, Kelly Mark Laird Jr.