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Wrongful Conviction Page |
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DOJ: TEXAS EXECUTED AN INNOCENT MAN Before a national audience, experts confirm what was long suspected
By Julius (Jay) Wachtel. “It was a crock.” That’s how renowned fire expert John Lentini characterized the official investigation of a 1991 Corsicana house fire that killed three girls and led to their father’s execution thirteen years later. In “Rising from the Ashes – What We Have Learned from the Cameron Todd Willingham Case,” the opening plenary panel of the 2010 conference of the National Institute of Justice, the author of Scientific Protocols for Fire Investigation ripped claims by Texas authorities that the fire had been deliberately set. According to Lentini burn patterns on the floor and crazed windows weren’t the products of a super-hot fire fed by accelerants, as a fire marshal testified, but occurred naturally, the first when the premises became fully engulfed in a natural phenomenon known as “flashover,” and the latter as firefighters sprayed water on hot glass. Lentini wasn’t the only expert to suggest the fire was accidental. Well before Willingham’s execution, Dr. Gerald Hurst, a Cambridge-trained chemist known for debunking arson myths, said so in a report that Texas Governor Rick Perry regrettably chose to ignore. Several months after Willingham was put to death the Chicago Tribune asked Hurst, Lentini and other experts to review Dr. Hurst’s findings. They did, and concurred. And that wasn’t the end of it. Two years later a comprehensive report by a distinguished panel of experts (including Lentini) confirmed it all over again. It wasn’t arson. Just like Cameron Willingham had insisted, he was an innocent man. Willingham isn’t the only victim of Texas forensic “science.” Eight months after the lethal cocktail coursed through his veins another death-row inmate, Ernest Ray Willis was exonerated when a prosecutor concluded that experts who testified that he deliberately set the fire that killed two women relied on faulty science – the same faulty science that was responsible for Willingham’s execution. Fears that Texas forensic “experts” were out of control led legislators to pass a bill in May 2005. Signed by Governor Rick Perry, it created a new entity, the Texas Forensic Science Commission, and charged it with regulating the practice of forensic science in the Lone Star state. In 2008, after three years of organizing, the commission announced it would conduct public hearings into the Willis and Willingham cases. But in fall 2009, just as the inquiry was getting under way, Governor Perry abruptly removed three commissioners, stalling the inquiry for the foreseeable future. Some accused Perry of trying to avoid embarrassment. But his decision nonetheless stands. Arson prosecutions require physical evidence that fires are of incendiary (i.e., purposeful) origin. There must also be proof that someone set the blaze. In Willingham the “who” came from a seedy jailhouse informer who testified that Willingham admitted his guilt. David Grann, whose September 2009 piece in The New Yorker, “Trial by Fire,” exhaustively debunked the charges against Willingham, spoke at the conference. Among other things Grann said that when he interviewed the stoolie the man asked whether he could still be prosecuted for perjury. Other speakers in “Rising From the Ashes” included Itiel Dror, a cognitive neuroscientist who criticized the failure to keep detectives, witnesses and experts from influencing each other, and Dallas County assistant D.A. Mike Ware, who accused Governor Perry of “[jerking] the rug out from under the forensic science commission.” (Dallas County, which formed a Conviction Integrity Unit to rectify and prevent miscarriages of justice, was never involved in the Willingham case.) But it was the moderator’s comments that proved the most telling. Introducing the panel, Deputy Assistant Attorney General Mary Lou Leary described its purpose as an attempt “to help us learn from our mistakes.” Mistake? Willingham’s conviction was an abomination. Think that’s too harsh? Consider what one of the fire marshals who worked on the case said years later: “At the time of the Corsicana fire, we were still testifying to things that aren't accurate Of course, given the circumstances it’s impossible to be as confident in Willingham’s innocence as in a DNA exoneration, where the genetic profile of the real perpetrator is there for everyone to see. Yet if absolute certainty isn’t required to convict (it’s not) it’s hardly fair to demand irrefutable proof of innocence. If Texas prosecutors knew then what they know now Willingham would never have been charged, let alone taken to trial. A posthumous pardon, such as Governor Perry granted to Timothy Cole, a wrongfully convicted man who died in prison, seems well in order. During the next weeks we’ll post more reactions to the 2010 NIJ conference. Meanwhile let’s make a couple of observations. Once again the pressing issue of officer misconduct was virtually ignored. About as close as we got were remarks by University of Maryland professor Charles Wellford, co-chair of IACP’s Research Advisory Committee, who bemoaned that police leadership and management issues draw little research attention. As to that we can only add, Amen! Police body armor also continues to get short shrift. We came away with the impression that protecting patrol officers from rifle rounds isn’t a priority; indeed, our suggestion for a “Marshall Plan” to develop wearable vests that resist high-velocity projectiles drew puzzled looks. If there’s a light at the end of this tunnel, we can’t see it. (Check below for related postings). More on these and other issues after we recover from jet lag. See you next week! Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS House of Cards Forensics Under the Gun Ignorance is Not Bliss DNA’s Dandy, But What About Body Armor? Bigger Guns Aren’t Enough UPDATES 06/29/10 In 2000 Texas executed a paroled murderer, Claude Jones, for another killing in which the evidence was the testimony of two companions (one later recanted) and a hair, which was said to probably be his. Now a judge has ordered authorities to release the hair for DNA analysis. Home Top Permalink Print Share this post Posted 3/1/10 Protections against miscarriages of justice must be embedded within the system
By Julius (Jay) Wachtel. Must someone be factually innocent to be convicted of a crime? If you’re a criminal justice major or law student, you know the answer: of course not! All that’s necessary is to convince jurors that guilt is evident beyond a reasonable doubt. Once the State meets that threshold, the rules change. In the interests of “finality” – not having to endlessly re-litigate judgments – those convicted by plea or at trial can’t simply reargue the facts. To get a second bite of the apple they must demonstrate that their Constitutional rights were severely trampled or find new facts – so-called “newly discovered evidence” – that conclusively demonstrate their innocence. That’s tough to do from a prison cell. Most inmates don’t have the resources to rub two nickels together, so hiring lawyers and private investigators is out of reach. But for the “lucky” few there is a way. Since 1989, the Innocence Project has helped exonerate two-hundred fifty-one persons who were convicted of a crime, often rape, where sufficient perpetrator DNA was left behind to prove their innocence. As the number of documented wrongful convictions continues to climb, most States (but not the Supreme Court) have grudgingly conceded prisoners the right to send potentially exculpating biological evidence to a lab – at their own expense, of course. But what if there’s nothing to test? As we pointed out in an earlier post, absent a miracle (ex-cop Jeffrey Hornoff was in the sixth year of a life term when the real, conscience-stricken killer turned himself in) few are cleared without DNA. State innocence projects are swamped and short-staffed, and given the time-consuming complexities of attacking circumstantial and testimonial evidence they must carefully choose which non-DNA cases to pursue. Even when there is substantial evidence of innocence progress is agonizingly slow. (For example, check out the never-ending saga of the West Memphis Three, now in its sixteenth year.) It’s not only the wrongfully convicted who benefit when mistaken convictions are made right; after all, for each innocent person rotting away in prison a guilty man or woman remains free. Yet criminal justice agencies have resisted the notion that safeguarding the integrity of the process is as important as gaining convictions. Happily, there have been a few exceptions:
For lack of a suitable example we left out the police, where nearly all miscarriages of justice have their root. After all, there would be no wrongful convictions without a mistaken arrest. However, we know of no law enforcement agency that has made a special effort to monitor and review prosecutorial referrals so that innocent persons aren’t needlessly placed at risk. When pressed to account for its mistakes, the criminal justice system typically responds by pointing out that very few exonerations take place. What’s ignored is that there would likely be many more but for the fact that innocence must be proven to a certainty that far surpasses what’s required to convict. In most cases there’s no DNA. What’s more, few inmates have the resources to take on the State, and even if they could, discovering compelling new evidence long after the fact may be impossible. Compassionate judges, enlightened D.A.’s and statewide commissions are welcome, but they’re only baby steps. What’s needed is a formal approach, perhaps patterned after Dallas’ “conviction integrity” model, that embeds active protections against miscarriages of justice within every agency, from police to the courts. Surely, getting at the truth benefits everyone. It’s the smart way to fight crime. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED VIDEOS D.A. Craig Watkins and others on wrongful convictions 48 Hours on West Memphis Three case RELATED POSTS Playing With Fire What if There’s No DNA? House of Cards Never Say Die UPDATES 05/25/10 The Supreme Court agreed to decide if arbitrary decisions not to turn over DNA to defendants can be challenged in a Federal civil rights lawsuit (Skinner v. Switzer. See 3/25/10 entry). Circuit Court of Appeals case 05/24/10 Using lessons learned from DNA exonerations, Dallas’ conviction integrity unit is focusing on questionable convictions where there is no DNA to test. 03/04/10 An analyst’s incorrect testimony that blood was found in Greg Taylor’s vehicle is leading the Georgia Bureau of Investigation to reexamine thousands of old lab cases to check their accuracy. Home Top Permalink Print Share this post Posted 11/22/09 Journalism students double as advocates for the wrongfully convicted
By Julius (Jay) Wachtel. About the only thing not in dispute is that a life violently ended in a dark corner of a hardscrabble Illinois town some thirty-one years ago. On the evening of September 15, 1978, in the Chicago suburb of Harvey, a man sitting in a car was killed by a shotgun blast to the head. Neither his wallet, the murder weapon or any other significant physical evidence were recovered. Within days officers arrested an 18-year old youth, Anthony McKinney. The sole person convicted, he remains in prison doing life without parole. Fast-forward to 1999. As a youth, Wayne Phillips had testified that he saw McKinney shoot and rob the victim. Twenty-one years later, in a chance encounter with McKinney’s younger brother, he tearfully confessed that he had lied. Phillips said that he and his friend Dennis Pettis, neither of whom saw the crime, were beaten by police into falsely identifying McKinney as the shooter (§34-38.) McKinney’s brother passed this on to the Medill Innocence Project at Northwestern University’s Medill School of Journalism. (Northwestern’s law school hosts a separate Center on Wrongful Conviction.) Under direction of the project’s founder, journalism professor David Protess, students collaborate with private investigators and lawyers to examine miscarriages of justice and “expose and remedy wrongdoing by the criminal justice system.” Medill’s investigation began in 2003. It would be a tough slog. Aside from what Phillips said, students had to deal with the unpleasant fact that McKinney confessed to the murder. Although he recanted before trial – he said police beat him up – jurors didn’t believe him. Considering the eyewitness testimony and his confession McKinney was lucky that the judge didn’t sentence him to death, the penalty that prosecutors sought. Yet there had been concerns about the evidence all along. In a pre-trial statement to a defense investigator, Dennis Pettis confirmed that he and Phillips were forced to lie. Unfortunately, Pettis made himself scarce and couldn’t be found in time for the trial (§39-44). His sister said she overheard Pettis and Phillips complain about being coerced by police but wasn’t allowed to testify (§45-46). Neither were two men who heard a local hoodlum named Anthony Drakes say that he was present when the murder occurred and that McKinney wasn’t involved (pg. 3). McKinney’s petition for post-conviction relief, filed last year, sets out compelling reasons for a new trial. Phillips and Pettis gave affidavits swearing that they didn’t see the shooting (§34-44). There is also a stunning videotaped statement by Anthony Drakes. Drakes, who has since done time for an unrelated shotgun murder, admitted being present when a man named Roger McGruder robbed and shot the victim (but see 3/11/10 update, below.) Other witnesses said that Drakes, McGruder and a third man, Michael Lane, were members of a robbery crew and that Drakes and McGruder blamed the killing on each other (§60-72). To win a retrial defendants must point to newly-discovered evidence that would have likely resulted in acquittal. After students videotaped Drakes the Cook County State’s Attorney sent two prosecutors and an investigator to interview him. Surprise! Drakes recanted, claiming that he told the students nonsense because that’s what they wanted to hear. His motive? Food and $100, most of which he used to buy crack. One of those students vehemently disagrees. Evan Benn, now a reporter in St. Louis, said they gave a cabdriver $40 to take Drakes home and had no idea that he intended to hop out after a few blocks and keep the change. Students didn’t interview McGruder. But they apparently spoke with Michael Lane. According to a report filed by State’s Attorney investigators, Lane said that the students were anxious to clear McKinney because they wanted a good grade. To that end they bought him an expensive meal, gave him $50-100 and even had a girl flirt with him. In the end Lane told the students “I didn’t have shit to do with the murder.” He attributed rumors of his and McGruder’s involvement to McKinney’s brother, supposedly a member of a rival street gang. Earlier this year prosecutors took the extraordinary step of issuing a subpoena demanding that Medill and its students turn over their entire work product, including notes, recordings, e-mails and even student grades. Citing Illinois reporter’s privilege, Medill refused. In a response brief the State’s Attorney insisted that the materials were needed to help determine whether witnesses were biased by cash payments and the students’ desire for good grades. Prosecutors also argued that the Medill Innocence Project wasn’t a protected activity under Illinois law as it was “an investigative agency, as opposed to a news gathering agency intent on publishing the news.” Medill’s reply was unusually blunt. Defining its students’ work as investigative journalism, it accused prosecutors of displaying a “surprising lack of comprehension” and “disturbing lack of sensitivity” to the First Amendment and Illinois law. Medill also chided the State’s Attorney for filling its brief “with off-point and distracting arguments.” That caught the judge’s eye. In a recent hearing she severely chastised Medill’s lawyer for infusing his response with sarcasm. That things got this heated is understandable; after all, by issuing the subpoena the State was honing in on the project’s core weakness. Unlike most innocence projects, which are directed by attorneys and staffed by law students, Medill can’t avail itself of attorney-client privilege, a protection that’s far more powerful than a reporter’s shield. That naturally places it and its clients at a disadvantage. Yet is Medill really doing journalism? Investigative journalism isn’t normally associated with taking sides, and certainly not with tailoring facts to support a particular position. Would students pursue leads even if they jeopardized their client’s case? Would they publish their findings? Looking through their comments on Medill’s website one thinks not: they might look like impartial fact-finders on the outside, but on the inside they’re rooting for their client. Although they’ve scored some impressive victories authorities are now pushing back, and if Medill persists in straddling legal aid and journalism it risks doing both poorly. Meanwhile the mind-numbing legal process is on a brief furlough. Whether prosecutors get the access they seek won’t be known until January, when a ruling on the subpoena is expected. One day there will be an evidentiary hearing and possibly a new trial. But whatever happens, uncertainty about what took place on the mean streets of Harvey three decades ago will doubtlessly linger. Indeed, with all the legal fisticuffs, self-serving moves and high-minded rhetoric, the victim of the shooting, a security guard named Donald Lundahl, has been all but forgotten. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS UPDATES 03/11/10 A judge agreed to a request by McKinney’s lawyers to disregard controversial statements secured by Medill students from Anthony Drakes, his brother Tony Drakes and Michael Lane. But the prosecution still challenges the students’ roles and demands access to their files. Home Top Permalink Print Share this post Posted 11/1/09 When biological evidence is lacking, the wrongfully convicted may be stuck
By Julius (Jay) Wachtel. It’s the rare prosecutor who will admit a grievous error. Rarer still are those who seek them out. Dallas D.A. Craig Watkins is such a man. Elected in 2007 after a string of exonerations shocked Texas, Watkins formed a “conviction integrity unit” to undo the damage. Using post-conviction DNA testing, which Texas authorized in 2001, Watkins quickly came up with more innocents rotting away in prison. A few months ago the total was twenty. Unlike most Dallas County exonerations, which are based on DNA, physical evidence was absent. Claude Simmons and Christopher Scott had been convicted of a 1997 murder based solely on the eyewitness testimony of the victim’s wife, who was present when the killing occurred. The distraught woman had no reason to lie. Why did she err? One of the men (both suspects were petty drug dealers) was sitting handcuffed in a police interview room when she walked by, leading her to think that he was involved. That threw off police, and it went downhill from there. Five years ago a former suspect in the case, who was serving thirty years for aggravated robbery, made a detailed confession and implicated a partner. University of Texas students worked with the D.A. and police to re-investigate the case. It turned out that the girlfriend of the convict’s partner originally told defense lawyers that he admitted to the crime. But the trial judge wouldn’t allow her statement in, nor those of two other witnesses with information to the same effect. It took six minutes for jurors to wrongfully convict, and twelve years for the truth to prevail. “I could never admit to something I didn’t do.” On October 28, 2009 Dewey Bozella was finally free. A sturdy-looking man of fifty, he had been in prison since 1983 for murdering an elderly woman in Poughkeepsie, New York. Posing with his spouse, a middle-school teacher he married in 1996 while incarcerated, Mr. Bozella smiled for the cameras, thanked everyone and walked away. He was looking forward to dinner; his wife was making his favorite, lasagna. Sad to say, had he played ball with the system he would have been released long ago. Mr. Bozella was convicted on the testimony of two criminals seeking deals on their own unrelated cases. His first conviction was set aside in 1990 because members of his race -- Mr. Bozella is black -- were improperly excluded from the jury panel. Before the second trial prosecutors offered a plea bargain and early release. That, however, would have required that Mr. Bozella confess. Like another innocent yet hard-headed man, Darryl Hunt, Mr. Bozella took his chances and, like Hunt, was convicted again. Over the next few years he had several opportunities for parole, but these too would have required that he admit strangling a 92-year old woman with an electrical cord for the sake of her bingo money. So he just said “no.” Mr. Bozella eventually asked for help from the Innocence Project, a pioneering organization at Yeshiva University that exonerates the innocent using DNA. Unfortunately, as in a majority of violent crime, his case lacked DNA, so they handed off Mr. Bozella off to a private law firm that agreed to take on the case pro bono. Miraculously, the complete police file was preserved by a retired lieutenant who thought the case would come up again. It contained reports that Mr. Bozella’s original defense lawyers never saw. A neighbor said that the intruder entered via a broken window -- not, as the jailbirds testified, through the front door. A man spoke of a burglar who was planning to break into the victim’s home. Most remarkably, a fingerprint found at the crime scene was matched to a prisoner doing time for the “nearly identical” killing of another elderly female who lived nearby. Finding evidence of Mr. Bozella’s innocence “overwhelming,” a judge ordered a new trial. Although they insisted that they still believed in their case prosecutors declined to refile. Mr. Bozella was let go. What’s to be done? It’s difficult enough to exonerate with DNA. But when biological material is lacking -- estimates are that suspect DNA is available in no more than a quarter of violent crime -- freeing the innocent can prove daunting. “CSI” isn’t always useful. In the real world there is often nothing beyond an eyewitness or a confession. Consider, for example, drive-by shootings, where there may be no physical evidence other than bullets in a victim’s body. Balancing the need for witness ID against its pitfalls, some jurisdictions, including Dallas County, now require that photographic lineups be administered sequentially, one photo at a time, by an officer not involved in the case. Dallas PD goes so far as to prohibit showups (one-on-one field identifications soon after a crime occurs) unless a dangerous suspect might otherwise have to be released. Texas State Senator Rodney Ellis proposed tougher rules, banning showups altogether and requiring that all confessions be recorded in their entirety. Others have suggested that statements by self-interested parties such as jailhouse informants be inadmissible unless corroborated. Whether to protect the finality of the process or, as seems more likely, to avoid political embarrassment prosecutors often keep hammering away, opposing the most worthy appeals and requests for hearings with fanatical resolve. Whatever remedies are chosen, perhaps the most fundamental is the one most easily overlooked. As they relentlessly went after Mr. Simmons, Mr. Scott and Mr. Bozella there was something very basic that the authorities forgot. Doing justice means more than just securing a conviction. A lot more. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED ARTICLE Exonerating the Convicted Without DNA RELATED POSTS UPDATES 06/24/10 A report ordered by the New Jersey Supreme Court lays out the many weaknesses of eyewitness ID and recommends pretrial hearings whenever it may be used as evidence. Report 05/28/10 Faulty cross-racial identification -- a white victim’s unfamiliarity with black hair styles -- is cited as the cause of a mistaken ID that led an innocent man to spend twelve years in prison. 02/17/10 Finding the evidence not credible, a three-judge panel convened by the newly-established North Carolina Innocence Inquiry Commission exonerated Greg Taylor for the 1993 murder of a prostitute. The current D.A. apologized to Taylor, who served seventeen years of a life term. 11/22/09 In rare non-DNA exoneration, judge declares Fernando Bermudez, New York man who served 18 years for murder, factually innocent Home Top Permalink Print Share this post Posted 9/6/09 Evidence isn’t better just because there’s lots of it: it must also be true
“I am an innocent man, convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do.” By Julius (Jay) Wachtel. That’s what Cameron Todd Willingham reportedly said as the poison dripped into his veins. On February 17, 2004 he was executed by lethal injection for deliberately setting fire to his Corsicana (Tex.) home, resulting in the deaths of his three infant girls, Karmon, Kameron and Amber. As it turns out, though, the fire was of accidental origin. Yes, that’s right. Texas executed an innocent man. Willingham refused to plead guilty in exchange for a life term. At his trial Corsicana’s fire chief and a deputy State fire marshal testified that an accelerant caused a “superhot” fire that quickly consumed the home and crazed its windows. But several months before the execution a renowned fire expert retained by the Chicago Tribune called the officials’ testimony bunk and said that the blaze was accidental. Two years later the Innocence Project announced that a distinguished scientific panel concluded that the Willingham fire was indeed accidental. A common phenomenon known as “flashover” was blamed for setting the floor on fire, thus lending the appearance that accelerants were used, while the crazing was caused by firefighters pouring cold water on hot glass. After reviewing the report a Texas state fire marshal who helped on the Willingham case admitted that he and his colleagues got their science wrong: “At the time of the Corsicana fire, we were still testifying to things that aren't accurate today. They were true then, but they aren't now...Hurst [the Tribune’s expert] was pretty much right on...We know now not to make those same assumptions.” Too late! The consequences of their error couldn’t be taken back. Still, the forensic testimony had only “proved” that a crime had been committed, not by whom. For that the authorities turned to jailhouse stoolie Johnnie Webb. A drug user with a serious criminal history, he testified that Willingham told him he set the fire to cover up injuries that one of the girls sustained in a beating by her mother. Webb later tried to recant his words, but to no avail. To convince jurors that Willingham was capable of killing his own children prosecutors got a psychologist and a psychiatrist to testify that he was a sociopath. Known in local circles as “Doctor Death” for his ability to secure convictions, the psychiatrist was later expelled from the American Psychiatric Association for ethical misdeeds. By then, of course, the trial was ancient history. In 1993 three Arkansas teens -- the West Memphis Three -- were convicted of the brutal murder of three boys in what police and the media quickly termed a “Satanic ritual.” The victims had been stabbed to death and dumped in a wooded area. Their bodies were covered with wounds and one of the boys’ genitals was removed. There were no obvious suspects. However, the cult-like appearance of the crime drew suspicion on a local teen, Damien Echols, 18, and his two disciples, Jason Baldwin, 16, and Jessie Misskelley, a mentally retarded 17-year old. Echols dressed in black, listened to heavy metal music and affected a Goth-like demeanor. He also bragged about practicing the Wiccan religion. Witchcraft! Police zeroed in on the weakest link, Misskelley. After hours of isolation Misskelley broke, giving a fantastic, rambling confession in which he admitted helping Echols and Baldwin kidnap, sexually abuse and stab the boys. He also accused Baldwin of cutting off a victim’s penis with a knife (the transcript of the confession, which was the only part of the interview that police recorded, is here and here). Misskelley’s account was replete with inaccuracies, forcing officers to repeatedly step in and offer suggestions (at one point he said that the killings happened at noon, while the victims were in school.) Misskelley later recanted but it was too late. Tried and convicted, he got life plus forty years. Echols and Baldwin were tried next. Misskelley refused to testify, so there was little hard evidence against the pair (their legal briefs, which include detailed accounts of the trial, are here.) A medical examiner testified that some of the wounds were caused by a serrated blade; a knife with a serrated blade was pulled from a lake behind Baldwin’s home. Echols was also said to have such a knife, which is hardly a unique item. Much was also made of his manner of dress and preoccupation with the occult. Dale Griffis, supposedly an expert in such matters (his degrees are by mail order) testified that the prosecution’s evidence was consistent with the profile of a ritual killing. And so on. Given the weakness of the case against Echols and Baldwin witnesses were badly needed to directly connect them to the crime. Prosecutors found three. Two girls, one twelve, the other fifteen said that they heard Echols brag about the killings at a baseball game. A jailhouse informer, Michael Carson, testified that Baldwin admitted he cut off a victim’s penis and sucked on its contents. Jurors convicted both. Baldwin got life without parole; Echols, death. At this writing the West Memphis Three have been imprisoned fifteen years. Their current lawyers have sought hearings and retrials based on inadequate representation, admission of improper evidence, and misconduct by prosecutors and jurors (the foreperson at the Echols/Baldwin trial supposedly brought up Misskelley’s confession during deliberation.) Their briefs contain highly detailed point-by-point rebuttals of the prosecution’s evidence. For example, what the girls heard Echols say wasn’t intended to be taken literally but was directed at youths who were taunting him as being the killer. Well-known forensic experts have debunked the ritual-killer theory, offering convincing proof that the wounds and castration were caused by animals. And the jailhouse informer that fingered Baldwin was denounced as a liar by his counselor and members of the jail’s custody staff. After fifteen years on death row, Echols will soon learn whether he’ll get a new trial. Meanwhile Baldwin and Misskelley are waiting for a court to decide about habeas hearings. Considering how slowly the wheels of justice are turning, by the time the three get to the Federal courts they’ll be old men. That unholy alliance of junk science, character assassination and jailhouse informers that figured prominently in the Willingham and West Memphis Three was also responsible for the conviction of Bruce Lisker (see “Never Say Die,” below). Lisker was recently ordered freed by a Federal judge after serving twenty-six years for a crime that by all appearances he didn’t commit. These cases share another characteristic. From the bloody footprint in Lisker, to the “arson” testimony in Willingham, to the ritual castration in the West Memphis Three, virtually every piece of prosecution evidence that was used in court has been proven false or highly misleading. There was a bloody footprint, but it wasn’t Lisker’s. There was no arson (hence no crime) in Willingham. The child victim allegedly castrated by Baldwin wasn’t, thus refuting both Misskelley’s confession and the testimony of the jailhouse snitch. How could things go so wrong? Pressures to solve serious crimes can cause the theory of a crime to form prematurely, leading authorities to uncritically gather evidence that is consistent with that notion regardless of its merit or plausibility. As statements, objects and observations accumulate they reinforce and lend weight to each other, deluding cops and prosecutors -- and ultimately, jurors -- into believing that they accurately depict what they purport to depict. By trial’s end, the cumulative weight of all that evidence makes other explanations seem highly unlikely. In fact, all that’s been built is a house of cards. Put another way, it’s like trying to come up with the number one by adding up a string of zeroes. In the highly consequential world of criminal justice, that can easily lead to tragedy. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS DOJ: Texas Executed an Innocent Man (Willingham) Never Say Die (Bruce Lisker) Forensics Under the Gun (mentions Willingham) Can We Outlaw Wrongful Conviction? (mentions West Memphis Three) UPDATES 12/02/09 One of Willingham’s lawyers, four jurors say Willingham was guilty beyond doubt 10/15/09 Texas Governor Rick Perry, who was in office in 2004 when Cameron Willingham was executed, calls the man now widely thought to be innocent a “monster” deserving of death. 10/12/09 New York Times reviews the West Memphis Three case, finds doubts among the victims’ parents 10/2/09 Texas Governor derails State commission reviewing Willingham case 9/9/07 New Yorker article on the Willingham case DOCUMENTARIES ABOUT THE WEST MEMPHIS THREE Paradise Lost (1996) Paradise Lost 2: Revelations (2000) Home Top Permalink Print Share this post Posted 8/30/09 When should prosecutors quit clinging to a case?
By Julius (Jay) Wachtel. On August 13, 2009, after a decades-long battle to prove his innocence, Bruce Lisker was a free man, at least for the time being. Imprisoned at seventeen, he had served twenty-six years for murdering his mother. His release was prompted by the findings of a Federal magistrate who concluded that Lisker had been irreparably harmed by an ineffective defense, due process violations and “cumulative prejudice.” A Federal district judge agreed and ordered that his conviction be set aside. But the L.A. County D.A. wasn’t done with him. Nine days after leaving State prison Lisker was re-arraigned in Los Angeles County Superior Court. A retrial (actually, re-retrial, but who’s counting?) is pending. Rewind to March 10, 1983. Only hours after Lisker allegedly found his mother stabbed and bludgeoned to death, police were already dismissing the 911 call (“Help me, please! I need an ambulance right now...Hurry!... My mom -- she's been stabbed! She's been stabbed!”) as the transparent attempt of a murderous youth to cover up his heinous deed. There was reason to be wary of Lisker. A drug user and general n’eer-do-well with a violent temper, the high school dropout was reportedly strung out on meth when cops arrived and had to be handcuffed and confined to a patrol car. An adoptee, Lisker had spent time in a home for troubled youths and was once arrested for throwing a screwdriver at a motorist in a road-rage dispute. But what most concerned LAPD Detective Andrew Monsue was that the boy and his mother frequently argued; indeed, at the time of her death Lisker lived alone, his apartment, car and living expenses paid for by his weary parents. Only problem was, precious little tied him to the crime. Monsue, who had previous run-ins with the youth, considered him “a loudmouth -- an in-your-face little punk.” Examining the scene, he concluded that Lisker could not have seen his mother’s body through a window as he claimed. Rather than simply forcing the back door open, as an innocent son might have done, Lisker dismantled a window so that he could climb through. There was also a bloody footprint that police thought matched Lisker’s shoe. Lisker demanded a polygraph. He got one. While the results aren’t admissible in court, the examiner concluded that his subject was being deceptive. Monsue arrested Lisker for murder. Yet significant clues pointed elsewhere. Lisker had a dope-smoking, mentally disturbed friend named Mike Ryan. According to Lisker’s father, Ryan, also 17, unexpectedly came to their home the day before the murder and asked to do chores for money. The victim turned him away. Ryan soon wound up in Mississippi, where he was arrested for housebreaking. His story, first related to Harrison County (Miss.) deputies, then personally to Monsue, was nothing short of astounding. Not only did he confirm visiting the Lisker residence just like the father said, but he admitted stabbing someone on the very day of the murder! (He insisted it wasn’t the victim -- it was another man with whom he got into a knife fight.) Then something even more remarkable happened: Detective Monsue declared Ryan “convincingly cleared” of the killing (pg. 5). Exactly why remains hard to say. One possible reason is that Monsue missed finding Ryan’s extensive criminal record, including a conviction for robbery with a knife less than a year earlier, because he entered an incorrect birthdate into the police computer. Ryan was sure fond of knives! Unfortunately he committed suicide in 1996. His mother later said that she always suspected him of being the killer. With the evidence against Lisker so shaky, a confession would sure come in handy. Coincidentally, prison inmate Robert Hughes, an unbalanced character with a history of snitching happened to be in L.A. County Jail. Hungry for a deal on his own sentence, he befriended Lisker. Soon Hughes had great news: Lisker admitted the killing! Lisker went to trial. Within days his lawyer convinced him to plead guilty as a juvenile, making him eligible for release at age 25. Lisker reluctantly provided a sketchy account of the crime. However, authorities soon determined that he wasn’t suitable for placement at a youth facility, so he withdrew his plea and was retried. Energized perhaps by Lisker’s caving in, prosecutors aggressively went forward with their case. They hammered on the “fact” that Lisker’s view of his mother’s body was obstructed. They mentioned the squabbles. They introduced the bloody footprint. And they brought in jailhouse stoolie Robert Hughes. Lisker didn’t take the stand, so he never got to tell jurors that he didn’t do it. What’s more, the judge wouldn’t let the defense point the finger at Ryan. According to the Federal magistrate, the ruling could have gone in Lisker’s favor had the judge been told certain things: that Ryan had a violent criminal past, that Detective Monsue caught him lying about his comings and goings on the day of the murder, that he used a phony name to check into a Los Angeles-area motel shortly after the killing, and -- this one’s a real shocker -- that about the time of the murder a brief (misdialed?) call had been placed from the victim’s residence to a number “nearly identical” to that of Ryan’s mother (pg. 28). Lisker’s lawyer failed to challenge the prosecution about key aspects of its case. Lisker really could have seen the body from outside the home. The bloody footprint didn’t match his foot. And there was more. The victim’s husband testified that he gave his wife a large amount of cash, but police reported none was found in her purse. That meshed perfectly with what the jailhouse informer told the jury -- that Lisker’s theft of the money precipitated the lethal argument with his mother. In fact, the cash was still in the purse, buried deeply. Discovered belatedly, it remains in the LAPD evidence vault to the present day, a silent witness to what in retrospect seems a tragic miscarriage of justice. That “missing” cash haunted Lisker even after his conviction. When he came up for a parole hearing in April 1998 Detective Monsue informed the board that the man and wife who bought the victim’s home found money secreted in the attic, where Lisker assumedly hid it. The husband later denied saying any such thing (pg. 2 of the link). He also mentioned that, according to Monsue, there was “some question” as to whether Lisker or a friend committed the crime. LAPD Chief Bratton subsequently disavowed Monsue’s letter to the parole board. No matter. Lisker had already spent fifteen years in prison. He would do eleven more. In 1992, nine years after his incarceration, knowing full well that he would never be paroled unless he accepted responsibility, Lisker told board members that, yes, he killed his mother. It didn’t work. He refused to meet with the board again until 1999, at which time he proclaimed his innocence. That didn’t work either. Given the paucity of the evidence, Lisker’s eventual exoneration seems a foregone conclusion. What’s most instructive, however, is the exceeding vigor with which local and State prosecutors opposed his getting another bite of the apple, eventually taking more than two decades of a man’s life before a Federal judge finally called a time-out. Why be so bullheaded? Denial and fear of embarrassment must have played a part. D.A.’s are political animals, and a faux-pas this serious could be plenty threatening. Police had perhaps the most to lose. Unlike prosecutors, cops aren’t absolutely immune from civil liability, and exonerations often breed sizeable lawsuits. Prosecutors like to deflect criticism by emphasizing the need to insure the “finality of the process”, meaning that once a judicial decision is made, it ought to stay made. In Lisker’s case they turned to AEDPA, the “Antiterrorism and Effective Death Penalty Act of 1966,” a law that’s meant to bar abuse of the Federal habeas process by State inmates. Had Lisker lacked a superb legal team its intricacies would have probably been insurmountable. Ironically, the one factor that most likely saved Lisker’s bacon was the involvement of another cop. Sergeant Jim Gavin, an LAPD internal affairs detective, was assigned to investigate Lisker’s complaint that Monsue lied to the parole board about the money. His inquiry soon turned into a quest. And when Gavin’s superiors shut it down, possibly because they didn’t like what he was turning up, Gavin talked to Lisker’s attorneys and the Los Angeles Times. The paper’s detailed, multipart account of the case helped give Lisker the credibility and political legs to prevail. What happened to Monsue over the letter? Nothing. Although Chief Bratton “withdrew” the document, declaring that it should not have been sent, LAPD cleared Monsue of wrongdoing. Not so for Sergeant Gavin, who was disciplined for leaking information. Later promoted to Lieutenant and awarded the Medal of Valor, Gavin sued the LAPD over harassment that he claimed was brought on by his work on the Lisker case. A jury rejected his suit, as Gavin knew that leaking was wrong but did it anyway. Internal Affairs detectives can’t be expected to watch over officers on a daily basis. For that there are field supervisors. So where were Monsue’s? The Assistant D.A.’s? Given the consequences of making incorrect charging decisions, strong oversight is crucial, and all the more so in cases such as this, where there is scant corroboration and little forensic evidence. And the buck doesn’t stop there. Assuring that justice is served isn’t just a management function but the sworn responsibility of a community’s criminal justice leaders. LAPD Chief Bratton and L.A. County D.A. Cooley were well aware of the controversy. One word from them could have spared an apparently innocent man years in prison. Where were they? Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED To read messages purportedly posted by Detective Jim Gavin and Paul Ingels, Lisker’s long-time defense investigator, click here and scroll down. RELATED POSTS UPDATES 12/23/09 Lisker says LAPD detectives “framed” him, sues 09/21/09 Case against Lisker dismissed. D.A. says they remain convinced of his guilt but there’s insufficient evidence to proceed due to the passage of time. Lisker served more than 26 years. Home Top Permalink Print Share this post Posted 12/7/08 CAN WE OUTLAW Legislator proposes banning showups and recording all interrogations By Julius (Jay) Wachtel. Do you enjoy getting scared out of your wits? Then you’d love the Lone Star State. According to the Justice Project, the place that gave us the groundbreaking horror film The Texas Chainsaw Massacre has been at the forefront of another spine-tingling exercise: locking up the innocent. For an example that will stand your hair on end look no further than Billy Miller. No one claims that Billy was a nice guy. In 1983, on parole for armed robbery, he was staying with friends when early one morning police came knocking. They were looking for a suspected rapist, although with a different first name. At 3 a.m. cops had Miller step outside for a “showup,” a one-on-one procedure commonly used soon after a crime occurs. The victim, who was sitting in a patrol car, instantly identified him. He was convicted and spent twenty-two years in prison before DNA tests proved his innocence. The woman who pointed him out has since gained a lengthy record for prostitution and other minor crimes. At least three of the 18 wrongful convictions uncovered in Dallas County during the past years were caused by flawed showups. Critics of the procedure argue that presenting only one person for a look-see is unduly suggestive. As Miller’s case demonstrates, bringing the witness to the suspect (instead of the other way around), as the National Institute of Justice recommends, may not be enough. Texas State Senator Rodney Ellis, who recently introduced a package of bills to reform his State’s justice system, has gone so far as to suggest that showups be banned altogether. What’s wrong with that? Consider the environment of policing. Officers frequently encounter persons matching suspect descriptions in the vicinity of a crime. Sometimes they’re in a vehicle, sometimes on foot. Under the rules of stop-and-frisk police can temporarily detain persons if there is reasonable suspicion that they committed a crime. Doesn’t it make sense to bring a victim or witness by for a look, right then and there? Sure, officers can take a picture, let the suspect go and show the victim or witness a photo lineup later. But by then the witness’s memory will have faded and the perpetrator -- if indeed he or she is the guilty party -- will be long gone, along with any evidence that prompt action might have turned up. Instead of recommending that showups be done away with altogether the National Institute of Justice has offered guidelines to reduce their suggestibility. It’s advised, for example, that suspects not be viewed while seated in the back of patrol cars, and that if there are multiple witnesses only one participate in the showup while the rest view photo lineups. And of course police should admonish the witness that this might not be the right person, take careful notes of what’s said and even record the event. Recording showups? Well, why not? As cases move through the system subtle pressures from police and prosecutors can make witnesses overconfident, turning a tentative “maybe” into a definite “that’s the one!” Taping their initial reaction preserves an unimpeachable record of the original degree of certainty should it inflate over time. Taping police-citizen encounters has become routine. Many officers carry miniature recorders and drive patrol cars with video cameras. Interview rooms equipped with recording devices are commonplace. Concerns that improper questioning techniques can precipitate false confessions have led a few States to enact laws that strongly encourage recording interrogations. Maryland police must “whenever possible” make “reasonable efforts” to record in-custody interrogations of persons charged with murder and rape. Nebraska has a similar law that applies only to “places of detention.” Police in Washington D.C. must record custodial interrogations of persons charged with crimes of violence, but only when a suspect is interviewed in a room that has the appropriate equipment. Senator Ellis has introduced a bill that would ramp things up a significant notch, at least in Texas. Police would be required to record all “custodial interrogations” for felony crimes, period. On pain of inadmissibility, entire interviews would have to be recorded, not just the actual confessions. But imagine that a patrol officer detains someone in the field. Although “custodial” has a broader meaning than arrest, the legislation leaves both “custodial” and “interrogation” undefined and makes no exception for place or circumstance. Accordingly, questioning anyone who may have been involved in wrongdoing without whipping out a tape recorder would invite litigation. It’s just such ambiguities that cause experienced officers to shake their heads. There is another pressing issue. Interrogations can continue for hours and, occasionally, days. But busy prosecutors and public defenders don’t have the time to watch videos and listen to tapes. If the Senator’s bill passes as written detectives couldn’t file the simplest felony case without sending along verbatim transcripts, and in complex cases or those with multiple suspects, reams of transcripts. Departments would require legions of secretaries to commit interrogations to paper. Who would pay? If “custodial interrogation” means what it seems to mean one thing is certain: should the bill become law police will probably do a lot less of it. Neither is recording a panacea. It seems that something always “happened” before the cameras started rolling. And even if everything is captured on tape, whether questioning was unduly coercive or suggestive isn’t always clear. In 1993 three Arkansas teens were convicted of the brutal murder of three boys in what police described as a “Satanic ritual.” Two of the accused got life and one was sentenced to death (they are still in prison awaiting the outcome of appeals.) There were no witnesses or physical evidence. Instead, the convictions were due to a taped confession by one of the accused, a developmentally disabled youth who was interviewed outside the presence of his parents or a lawyer. His account, which he has since recanted, was preceded by hours of interrogation that weren’t recorded and, if one believes the detectives, in which no notes were kept. What’s more, as a defense expert pointed out, a transcript of what was taped has police repeatedly -- and successfully -- prodding the teen to change his responses so they are consistent with their theory of the case. It’s impossible to watch the court video (included in a commercial DVD of the case) without taking pity on the pathetically vulnerable youngster as he struggles to please the cops. In the end his “confession” was admitted as evidence, with catastrophic consequences for himself and his friends. Technology can help. But at the end of the day the best “cure” lies in the knowledge, skills and abilities of police and prosecutors. Given the perils of witness identification and confessions, it’s appalling that few if any agencies have incorporated what’s known about these pressing issues into pre-service and in-service training. Remember that for each innocent person convicted a guilty person goes free. Considering the imperatives of public safety, the practicalities of law enforcement, the limits of law and technology, and the difficulty (some would safe, futility) of promoting change in the insular worlds of policing and prosecution from the outside, it seems more important than ever to spur reform from within. Is anyone listening? Did you enjoy this post? Be sure to explore the homepage and topical index! Home Top Permalink Print Share this post Posted 11/23/08 CAN WE OUTLAW WRONGFUL CONVICTIONS? Are sequential, double-blind lineups really the answer? By Julius (Jay) Wachtel. “I think because of the outrageous number of wrongful convictions in Texas, it's time to begin the dialog.” That’s how State Senator Rodney Ellis explained the purpose of a package of bills that would establish a Texas “Innocence Commission” and require that police follow strict procedures when investigating felony crimes to avoid making tragic mistakes. What rules does he propose? For confessions to be admissible, custodial interrogations would have to be recorded in their entirety. Photographic and in-person lineups could only be done in certain ways. Photos would have to be displayed to eyewitnesses sequentially rather than in a group, and only by someone unaware of the real suspect’s identity. Although there’s no specific mention of this in his bills, Senator Ellis also proposed to ban showups -- one-on-one identifications done soon after a crime occurs. No one can deny that the Senator has a righteous cause. According to the Justice Project Texas leads the nation in the number of wrongful convictions. Surprisingly, one of the leaders in correcting the problem is a Texas official, Dallas County District Attorney Craig Watkins, whose office has helped exonerate nineteen wrongfully convicted Texas men since 2001. Most fell prey through misidentification. Traditionally, photo lineups have been administered “simultaneously.” A photo of the suspect and (normally) five “fillers,” look-alikes not suspected of the crime, are randomly arranged on a cardboard backer and shown to the witness all at once. Police call these “sixpacks” or “photospreads.” When advances in DNA analysis brought to light the sobering fact that wrongful convictions were not rare, and that most were due to misidentification, reformers started pressing for changes. Police were urged to display photos sequentially, meaning one at a time, as viewing them together allowed witnesses to compare images and choose the one that looked “most” like the suspect. Critics also demanded that the process be “double-blind,” meaning that those administering lineups not know who the suspect is or even which photo they are setting out, thus keeping them from subtly suggesting whom to pick and whom to avoid. Police generally resisted modifying their procedures, leading frustrated advocates to lobby legislators. Thus far a few States (e.g., North Carolina) have incorporated the sequential, double-blind procedure into law. In 2006 a monkey wrench got lobbed into the mix. In the first major study of photo lineup procedures used by real officers in real cases, conducted in Illinois, researchers concluded that the simultaneous technique was superior, proving more likely to identify perpetrators and less likely to produce mistaken ID’s (the dreaded “false positives”) than the sequential, double-blind approach. Whether photographic or in-person, lineups can go astray in two ways. In a “Type 1” error witnesses simply fail to identify anyone, including the culprit, thus letting a bad guy goes free. That’s not nearly as nasty as a “Type 2” error, in which an innocent person is mistakenly identified. When the above report came out reformers denounced its conclusions because officers who administered photos simultaneously, in the old-fashioned way, weren’t kept ignorant of who the real suspects were. Maybe they got better results because they subtly steered witnesses away from fillers! That debate still rages (for the Illinois research team’s response to the nay-sayers, click here.) Meanwhile a noted authority on witness identification has reported little difference between lineup techniques even when giving great weight to preventing Type 2 errors. More interestingly, he also concluded that as the probability that the real evildoer is in the lineup increases the simultaneous technique actually takes the lead in accuracy. But wait a minute: why wouldn’t the bad guy (or gal) be in the lineup in the first place? Consider these possibilities:
Which scenario yields greater confidence that the identification is correct? That’s a no-brainer. When a witness picks out someone who’s a suspect for reasons other than their physical description the probability of error seems remote. Difficulties mostly arise in “whodunits,” where cops have nothing concrete to go on other than a description. Consider this all-too typical example: On December 11, 1980 a holdup man killed the manager of a fast-food restaurant in Orange, California. Suspecting it was a gang member, police got numerous photos from LAPD of gang members with previous armed robbery arrests. One, of DeWayne McKinney, was placed in a photo lineup and shown to restaurant workers. Although McKinney was considerably shorter than the witness description, he was identified by four employees. McKinney was convicted and got life (the prosecutor asked for a death sentence.) He was freed nearly nineteen years later when two inmates admitted they committed the robbery and identified another prisoner as the shooter. Two of the four witnesses who sent McKinney up the river then looked at this man’s photograph and said that, indeed, he was the killer – not McKinney. McKinney’s lawsuit against police was settled for $1.7 million. He married and became a wealthy entrepreneur in Hawaii. (He died in October 2008 in a scooter accident.) What’s the moral to the story? Precisely how a lineup is administered isn’t the most crucial thing to consider. Sure, police shouldn’t be suggestive. But if the goal is to catch criminals while minimizing the possibility of snaring the innocent, cops shouldn’t even think of staging a live lineup or showing photos unless there is substantial information linking someone to the crime. What’s sufficiently “substantial” is a matter of judgment that comes with education, training and experience. It’s not something that can be easily articulated in a legislative bill. So what about show-ups? Recording interrogations? Stay tuned! Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED ARTICLES For a bibliography on the battle between simultaneous and sequential lineups click here. For California’s futile experience in setting up a “truth” commission and establishing procedural guidelines for the police, click here.UPDATES UPDATES 06/24/10 A report ordered by the New Jersey Supreme Court lays out the many weaknesses of eyewitness ID and recommends pretrial hearings whenever it may be used as evidence. Report 05/28/10 Faulty cross-racial identification -- a white victim’s unfamiliarity with black hair styles -- is cited as the cause of a mistaken ID that led an innocent man to spend twelve years in prison. 8/21/09 Dallas PD switches to sequential, double-blind lineups; expert says their use reduces identifications 15 percent but reduces errors 39 percent Home Top Permalink Print Share this post Posted 8/17/08 MISCARRIAGES OF JUSTICE: To prevent wrongful convictions, education is key The system worked exactly like it’s supposed to....The Government doesn’t By Julius (Jay) Wachtel. Those unforgettable remarks were made by Caddo Parish (LA) Assistant District Attorney Hugo Holland during an on-camera interview about his office’s conviction of Calvin Willis, who was cleared in 2003 by DNA after serving twenty-two years in prison for a rape that he didn’t commit. Willis was one of eight wrongfully convicted persons featured in the groundbreaking documentary After Innocence, winner of the Special Jury Prize at the 2005 Sundance Film Festival. Holland’s point of view is all too common. Although some cops and prosecutors are deeply remorseful for locking up the innocent, many others seem unfazed, often asserting that despite incontrovertible forensic evidence to the contrary the exonerated may still be guilty. Here’s what Asst. D.A. Holland told the Baton Rouge Advocate shortly following Willis’s release: “I'm still not convinced Calvin Willis didn't do it. Calvin Willis is not innocent, he's just not guilty. I just don't know who did it.” What’s missing in this picture? Nothing in D.A. Holland’s comments suggested that he saw in his role any greater purpose than convicting whomever the police deposit at his door. “Beating” the defense seems to be many prosecutors’ main goal. Here’s the last paragraph from the National District Attorney’s Association website profile of Clatsop County (OR) District Attorney Joshua Marquis: Josh Marquis beat famed defense attorney Gerry Spence in a 1985 juvenile That inscription seems quite undeserved. The book that Marquis refers to, “Smoking Gun,” Gerry Spence’s impassioned account of the boy’s defense, reports that the Oregon appellate court threw out the conviction because the D.A. failed to prove the boy’s guilt to the required standard: beyond a reasonable doubt. (Marquis seems to take pleasure in advocating against the wrongfully convicted. For example, see his opinion piece, criticized in an earlier post.) Some prosecutors and police view the process as a zero-sum game that only one side can win. But Calvin Willis’s exoneration was a victory for everyone, as it not only freed a wrongly convicted man but alerted the authorities that a dangerous criminal was still loose. Unfortunately, Asst. D.A. Holland didn’t agree. “There ain't no place to go with this case,” he said. “It's impossible to try a second person when one person has been convicted.” That of course is simply untrue, yet the mindset it demonstrates is chilling. Calvin Willis’s conviction was based on three things: he lived in the neighborhood and had been inside the home in the past; his blood type (O, the most common) matched semen found on the victim’s clothes; and the victim identified his photograph. Yet there was plenty of exculpatory evidence. Willis’s wife testified that he was home. A pair of boxer shorts with a waistband ten inches too large was recovered at the scene. The victim, a young girl, described her assailant as having a beard, while Willis had always been clean shaven. She also couldn’t identify him in court. And on and on. All this notwithstanding, Willis would still be locked up if it wasn’t for the fact that the Innocence Project took up his case and proved that the matching DNA on the fingernail scrapings and the boxer shorts wasn’t his. Last week we made these recommendations:
Had these precepts been followed Willis would have never been arrested, let alone charged and convicted. In their rush to judgment the police applied poor investigative practices, and when their problem-riddled case landed on the D.A.’s lap a prosecutor capitalized on the State’s vastly superior resources to make it stick. Once the innocent man was finally released, instead of apologizing the D.A.’s office demonstrated anew the lack of reflection and capacity for self-criticism that helped the miscarriage of justice happen in the first place. What’s to be done?
No cop or prosecutor starts out their career intending to do the wrong thing. Indeed, the very thought of arresting or convicting the innocent is repulsive, an outright contradiction of the principles that law enforcement professionals so eagerly swear to uphold. How to recapture that spirit is the most urgent to-do for American criminal justice in the 21st. century. Did you enjoy this post? Be sure to explore the homepage and topical index! UPDATES 01/17/10 Lifetime Network premieres “The Wronged Man,” a TV movie about Calvin Willis 05/17/09 Prosecutors routinely obstruct post-conviction DNA testing 12/15/08 Prosecutor presses ahead despite DNA findings Home Top Permalink Print Share this post Posted 8/11/08 Why do miscarriages of justice keep happening?
By Julius (Jay) Wachtel. How do we address the problem of wrongful conviction? We could analyze cases where things went astray, draw up lists of poor law enforcement practices, then tackle them one by one. The problem with that approach is that it’s like swatting flies: it makes a mess and you’ll never kill them all. Why not see what’s attracting them in the first place? To that end here are ten factors that can set the stage for a miscarriage of justice: Overconfidence. When Supreme Court Justice-to-be Samuel Alito was asked during his confirmation hearing if executing an innocent person was Constitutional, all he could say was that the judicial process has many built-in safeguards. Knowing just how fallible humans are, the notion that witnesses, police, courts and juries don’t make serious mistakes seems ridiculous, yet in practice we pretend that it’s true. Substituting measures for goals. If we could be certain that only the guilty are arrested and convicted, measuring success with numbers might make sense. Yet in the real, imperfect world, where skills vary and resources are limited, evaluating agencies and individuals based on numbers of arrests and convictions and on clearance rates encourages haste and sloppiness, with predictable consequences. Illusion of an adversarial process. O.J. Simpson, Michael Jackson, Robert Blake and Phil Spector could afford to hire teams of lawyers, investigators and expert witnesses, matching if not bettering the authorities blow by blow. Most defendants can’t. When one has nothing beyond an appointed lawyer or harried public defender their chances of discovering exculpatory evidence that police overlooked are very small. Rush to judgment. As the FBI’s anthrax, Atlanta Olympics and other fiascos demonstrate, pressures to solve violent crimes can lead agencies and investigators to prematurely narrow their focus. Concentrating investigative resources on a single target inevitably produces a lot of information. As facts and circumstances accumulate, some can be used to construct a theory of the case that excludes other suspects, while what’s inconsistent is discarded or ignored. That’s how a “house of cards” gets built. Narrowly interpreting the State’s obligations. Prosecutors aren’t like defense attorneys, whose sole interest is the welfare of their client. D.A.’s are supposedly there to do justice, not merely win one for the State. Yet in example after example they have relentlessly battled on even when it was obvious that the police may have the wrong man or that someone was wrongfully convicted. Ignoring mistaken arrests. Wrongful conviction gets plenty of attention. Meanwhile few concern themselves with the underlying problem of mistaken arrest. Not only are these events highly traumatic for those arrested, but they cause the police to stop looking, allowing the real perpetrator to continue making victims. Worse, after an arrest takes place it may be too late to fix things: system inertia, public pressures and a “let the jury decide” mentality have allowed many innocent persons to be taken to trial. Absence of reflection and self-criticism. One would think that police and prosecutors are eager to address the issue of mistaken arrest and wrongful conviction. With a few notable exceptions, such as the new Dallas County D.A., one would be wrong. Despite a litany of goofs, up to and including wrongful executions, the law enforcement community keeps insisting that mistakes are much too rare to justify altering current practices. But how can we possibly know the prevalence of error when the deck is stacked against its discovery? What’s more, protecting one’s own is so ingrained that some police and prosecutors shield unprofessional colleagues who plant evidence and use force, threats and coercion to get suspects to confess. Aura of invulnerability. Even the most skilled and well-intentioned detectives and prosecutors have inadvertently caused innocents to spend decades in prison. (Faulty eyewitness identification is a common culprit.) Unfortunately, eyewitness ID or circumstantial evidence may be all there is. Whether one should proceed without substantial corroboration is a critical decision that must be made in a dispassionate setting and given a lot of thought. Picking on the usual suspects. Detectives faced with “whodunits” often look for suspects in the pool of past offenders. While potentially useful, the approach can set up an innocent person for a nasty fall, particularly if they resemble the real criminal, can’t account for their whereabouts or might know or live near the victim. It’s surprising just how readily juries will convict someone with a prior record no matter how sketchy the evidence. Applying poor investigative practices and junk science. Suggestive interviews and flawed identifications have led to many wrongful convictions. Polygraphy and investigative profiling have been thoroughly debunked yet continue to be used to screen and identify suspects. There are also serious issues with fiber, arson, ballistics and blood-spatter evidence and, most recently, with DNA probability assessments. Yet old habits die hard. Fine, you say, but now what do we do? Three things must change:
More on this next week. Stay tuned! Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED POSTS NAS to CSI: Shape Up! House of Cards UPDATES 07/06/10 Ordered by the state Supreme Court to serve an accused in a capital case after his court-appointed lawyers withdrew for lack of payment, two public defenders appeal to the U.S. Supreme Court that they’re not getting the necessary funds either. But in Georgia that’s routine. Home Top Permalink Print Share this post Posted 8/3/08 Six chilling examples of an imperfect criminal justice system By Julius (Jay) Wachtel. Had the FBI not tried for six years to pin the 2001 anthrax attacks on an innocent man, recent revelations that maybe -- just maybe -- they’ve identified the real killer might have been better received. Only two months after the Justice Department agreed to pay Stephen Hatfill $5.8 million for recklessly invading his privacy (a judge commented that there was “not a scintilla of evidence” of his guilt) the Federal leak machine was already cranking out rumors that a fellow anthrax researcher, Bruce Ivins, was about to be indicted for the attacks that killed five and left America afraid to open its mail. Unfortunately the whole story may never be known, as Ivins killed himself shortly after being released from a hospital where he was treated for a depression reportedly brought on by being in the Fed’s bullseye. Hatfill isn’t the only innocent soul whom the FBI has wrongly soiled as a “person of interest”. Remember Richard Jewell? He was the Atlanta security guard who discovered a bomb in a park during the 1996 Olympics and warned off bystanders before the device went off. FBI agents immediately targeted Jewell, grilling him, searching his home and generally making his life miserable. Two years later Eric Rudolph, a serial bomber, was spotted by citizens after an explosion at an abortion clinic. He wasn’t caught until 2003. Rudolph later pled guilty to planting pipe bombs at the Olympics and three abortion clinics, including one where an off-duty police officer was killed. (Jewell went on to become a small-town cop and deputy sheriff. He passed away from heart disease last year.) And who could forget Brandon Mayfield, the Portland attorney who was arrested as a material witness to the 2004 Madrid train bombing because FBI examiners incorrectly matched his fingerprints to latent prints found by Spanish police on a bag of unexploded detonators. Confident in their work (Mayfield happened to be Muslim and represented a suspected terrorist in a civil action), the Feds pooh-poohed Spanish analysts who insisted that the prints didn’t match. Eventually Spain positively identified the man who really handled the explosives -- an Algerian terrorist -- and the sheepish Feebs let Mayfield go. (He got $2 million in taxpayer cash for his troubles.) It’s not just the Feds who get it wrong. Here are three examples of goofs by local cops in the writer’s home turf:
In the above examples innocent persons were forced to endure unimaginable stress, huge legal bills, loss of reputation and employment, even significant jail time. However, unlike wrongful convictions, which have spawned a large advocacy movement, these lesser miscarriages of justice are like Rodney Dangerfield: they don’t get no respect. Yet the root causes are the same. And perhaps the most fundamental is shoddy investigation. Is police work often so poor because because FBI agents and detectives don’t get enough training? Or is the fault more likely to be found in the workplace? Even in the face of limited resources, detectives are expected to promptly solve serious crimes and keep clearance rates high. Do such pressures inhibit their ability to discover the truth? Whatever their cause, investigative shortcomings inevitably affect prosecutors. If police don’t inform them about gaps in a case (maybe because they don’t know they exist) they can become equally overconfident. Prosecutors and judges are also political animals, highly attuned to public opinion and reluctant to let defendants off the hook lest they seem soft on crime. The truly innocent are in the worst position. Few can afford top-notch lawyers and investigators to develop leads that police or the Feds might have ignored. As the pitifully long and sad string of exonerations attests, poor police work that goes unchallenged has repeatedly led well-intentioned jurors to convict the innocent. Finders of fact can only work with what they’re given, and if that’s a slipshod investigation, that’s what will have to do. What’s to be done? Check back next week. Did you enjoy this post? Be sure to explore the homepage and topical index! UPDATES 01/14/10 The Ninth Circuit ordered that a lawsuit filed by Michael Crowe and the other boys against police go to trial, ruling in part that the interrogations were coerced. Crowe v. Wrisley 08/12/08 ACLU accuses Denver police of sloppiness, sues over mistaken arrests Home Top Permalink Print Share this post Posted 7/6/08 Crying wolf over a well-deserved conviction By Julius (Jay) Wachtel. During the early morning hours of December 9, 1981, Philadelphia police officer Danny Faulkner, who was white, got into a tussle with a black man named William Cook during a traffic stop. Cook’s brother, a taxi driver who had taken on the name Mumia Abu-Jamal, happened to be parked across the street. Shots rang out. Moments later Officer Faulkner lay on the street dying, struck five times, including a fatal shot between the eyes. Abu-Jamal was wounded once, in the chest. Nearby lay a .38 caliber five-shot Charter Arms revolver registered in his name. It held five empty cartridges. William Cook came through it all unscathed. Abu-Jamal was tried seven months later. Neither he nor his brother testified. The jury, which included two blacks, took three hours to convict him of first-degree murder and two more to impose the death penalty. Fast-forward twenty years. After losing his State appeals, up to and including the Pennsylvania Supreme Court, Abu-Jamal got a hearing in US District Court. It upheld his conviction but found flaws in how jurors were charged at the sentencing phase. Its decision was upheld by a panel of the Third Circuit Court of Appeals, which ordered Pennsylvania to conduct another sentencing hearing. (It’s presently pending.) The case of Mumia Abu-Jamal may go down as the most bitterly disputed conviction of a black man for killing a white police officer in American history. After more than twenty-five years the tragic episode continues to generate media attention. It’s spawned at least three books. In The Framing of Mumia Abu-Jamal, the convict is described as “an articulate, compassionate righter of wrongs.” Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal, written by a respected investigative journalist, admits that Abu-Jamal might have done it, but even if he did, it probably wasn’t first-degree murder. In contrast, the recently released Murdered by Mumia, penned by the officer’s widow and a professional writer, declares Abu-Jamal guilty, guilty, guilty. Of course, there’s also a DVD. “Mumia Abu-Jamal: A Case for Reasonable Doubt?” is an advocacy piece produced for HBO that tries its best to disguise its pro-defendant bias through droll narration and a faux-documentary style. Just who is Mumia Abu-Jamal? Born in 1954 to a hardscrabble Philadelphia family, Abu-Jamal grew up during a time when many blacks, disenchanted with the slow pace of progress, were spurning mainstream civil-rights organizations such as the NAACP in favor of more radically-minded groups. In his teens Abu-Jamal became active in the Black Panther Party. He later worked as an on-air radio commentator, gaining attention for giving voice to MOVE, an oddball collection of anarchists who kept getting into shoot-outs with police. At the time of his arrest Abu-Jamal was married, working in radio part-time and driving a taxi. He had no criminal record. Abu-Jamal’s arrest, imprisonment and death sentence for this most heinous of crimes came during a period of extreme tension between blacks and authorities. Political activists of all shades seized upon his case as an example of the injustices that beset black America. Civil rights organizations in the U.S. and around the world rushed to take up his cause; attorneys lined up to represent him for appeals. It can be said without irony that for Abu-Jamal prison was in a sense a liberating experience. Freed from the need to make a buck, the gifted intellectual became a prolific writer, authoring numerous essays and several books about race relations and the criminal justice system, including Live From Death Row (1995) and We Want Freedom: A Life in the Black Panther Party (2004). At present Abu-Jamal also does regular podcasts for Prison Radio. He’s a talented person, all right. But did he murder Officer Faulkner? In the eyes of his supporters he’s not a killer but the victim of lying cops, a biased prosecutor, a racist trial judge and indifferent appeals courts. In the eyes of Officer Faulkner’s former colleagues Abu-Jamal is a cop-killer who needs to die. Again, what’s the evidence? This much is uncontested:
Some might say that all this, together with the fact that neither Abu-Jamal nor his brother chose to testify, leaves painfully little to the imagination. Not according to the defense. It would take volumes to wade through the arguments and counter-arguments, but the essence of Abu-Jamal’s original defense was not that he was innocent (remember, an accused need not prove anything) but that police so botched the investigation that it was impossible to say what actually took place. Hence the DVD’s title: reasonable doubt. For example, at trial the defense argued that a bullet removed from Officer Faulkner was .44 caliber, while Abu-Jamal’s revolver was a .38. It turns out that the .44 caliber claim was based on a note made by the medical examiner, who admitted it was a guess and that he didn’t really know how to measure caliber. A prosecution ballistics expert not only confirmed that the bullet was a .38 but that the markings it bore had the same number of lands/grooves and twist as Abu-Jamal’s gun. (The bullet was too deformed for further analysis. George Fassnacht, a ballistics expert later brought in by the defense, reportedly refused to examine it.) Abu-Jamal’s appellate team more recently claimed that their client was framed by a cabal of corrupt cops that conspired to murder Officer Faulkner because they were afraid he would tattle about police misconduct. Abu-Jamal has also offered his first account of what happened, which omits any mention of his gun. How very convenient. Yes, we’re certain that Abu-Jamal is guilty. But why bother posting it? The ground’s been covered by others, and far more exhaustively. Our concern is that if interest and advocacy groups keep recklessly burnishing the reputation of Abu-Jamal, a rightfully convicted man if there ever was one, it will work against the cause of correcting the careless policing and incompetent prosecution that have led to so many real miscarriages of justice. Incidentally, as this is written Dallas County, Texas announced its latest exoneration. Its D.A. has now helped clear eighteen wrongfully convicted men since 2001. Look for more on this in the near future. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED WEBSITES Documentary website Mumnia Abu-Jamal website Officer Daniel Faulkner website UPDATES 01/20/10 Supreme Court orders Federal appeals court to reconsider its decision to overturn Abu-Jamal’s death penalty due to an allegedly confusing jury instruction. Home Top Permalink Print Share this post Posted 4/20/08 Having a record makes it far more likely to be mistakenly arrested By Julius (Jay) Wachtel. This isn’t just another story about a wrongful conviction. No, it’s much worse than that: it’s about a D.A.’s office that doesn’t care whether they have the right guy as long as they have someone. Who pays the tab for their fecklessness? Read on. In March 1993 an Anchorage prostitute was picked up by two men, savagely attacked, dumped from a car, shot at and left for dead in a snowdrift. She miraculously survived. A week later two men were detained for the crime. In their car was a used condom of the kind carried by the prostitute, and a pistol that was matched to a cartridge casing left at the scene. The driver confessed. He said that the other assailant was not his then-passenger but a black man named William Osborne. Osborne’s photo was placed in a six-pack and shown to the victim. She said that her second attacker was either Osborne or one of the others, but most likely Osborne. Sperm from the condom was typed using a crude DNA procedure and found to be unique to one in every 6 or 7 African-American males. Hairs were also found: two were “consistent” with Osborne, while the origin of others was unknown. Osborne’s lawyer decided not to pursue more advanced DNA tests, as she disbelieved his claim of innocence and feared that the results could only strengthen the prosecution’s case. Although the victim originally described a substantially older and much larger man, Osborne was convicted and imprisoned. For the next decade he repeatedly requested that DNA from the condom be analyzed using modern tests. Turned away by police, prosecutors and, finally, the Alaska Supreme Court, he finally admitted his guilt. Two years later, in June 2007, he was paroled. Six months later Osborne was arrested for a home invasion. He and three codefendants are presently in jail awaiting trial. Obviously the concept of learning a lesson is not in this man’s lexicon. Meanwhile Osborne’s appeals bore fruit. In 2006 a Federal District Court determined that Alaska’s refusal to retest the DNA using modern procedures, on the defendant’s dime, violated his Constitutional rights, senselessly depriving him of the opportunity to be cleared. Anchorage’s never-say-die D.A. appealed. Earlier this month the Ninth Circuit affirmed the lower court, ruling that Alaska’s standards for post-conviction DNA testing were overly restrictive, essentially requiring that defendants prove their innocence in advance. The evidence finally went in and results are expected soon. Admittedly, Osborne’s not one to stir sympathy. After all, he did confess, even if it was only to qualify for parole. Maybe he’s guilty, maybe not: why should we care whether he’s cleared? In 2005 Orange County (CA) resident James Ochoa was arrested for carjacking. Ochoa, who lived nearby, was identified by two of the victims from a photograph. A police bloodhound had also followed a scent from a baseball cap left in the vehicle to his home. However, DNA recovered from the baseball cap and from the car’s interior was not his, and five members of his family swore he was with them when the crime occurred. Even so, a judge threatened Ochoa, who had a drug record, with a twenty-five year term if he was convicted at trial. Not willing to roll the dice, Ochoa pled guilty and got two years. Ten months later a man was arrested for another carjacking. His DNA profile, which was routinely entered into the State database, matched the DNA profile from the Ochoa case. The suspect confessed, exonerating Ochoa. In 1992 four prostitutes were murdered in South Los Angeles. Detectives interviewed David Jones, a mentally disabled man with an IQ of 62 who was in jail for attempting to rape a prostitute. Through persistent, manipulative questioning they got him to say that he had smoked crack with the victims and choked them when they refused to have sex. But he denied killing anyone. Although DNA excluded Jones, prosecutors argued that it didn’t rule him out, as prostitutes have multiple sex partners. He was convicted by a jury and got 36 years. But the killings continued. In 2001 an LAPD detective used DNA to match ten rape/murders, including the four attributed to Jones, to a man in prison for rape. In 2004 Jones was exonerated and received a settlement of $720,000. The real killer, Chester Turner, was convicted of the ten crimes in May 2007. In case after case of wrongful conviction the guilty party continued victimizing citizens while a fall guy rotted in jail. That’s not to say that the wrongfully convicted are always nice people -- many became suspects because they already had criminal records. They may not be worth pitying, but the public is. When cops quit looking because they incorrectly think they already have their man (or woman), perpetrators keep perpetrating and victims multiply. Not caring whether the right person is locked up places innocent citizens at grave risk. It’s more than a singular injustice: it’s a recipe for disaster. Did you enjoy this post? Be sure to explore the homepage and topical index! UPDATES 06/18/09 In a 5-4 decision the Supreme Court held that there is no Federal Constitutional right to have police send in evidence for post-conviction DNA testing, even if the defendant pays. Opinion 02/11/09 Supreme Court will hear Alaska prosecutor’s appeal to the Ninth Circuit’s ruling that Osborne is Constitutionally entitled to post-conviction DNA testing. Home Top Permalink Print Share this post Posted 3/30/08 How many wrongful convictions have there been? A lot more than what’s known! By Julius (Jay) Wachtel. “Better that ten guilty persons escape than that one innocent suffer.” Known to first-year law students as the “Blackstone ratio”, these words by legal scholar William Blackstone were intended to frame critical legal decisions within a moral context and remind prosecutors of the need to exercise restraint when invoking an admittedly imperfect process. Were he alive today Blackstone would be appalled that his numerical ratio has been turned on its head and used to justify serious miscarriages of justice. Unfortunately, that’s exactly what’s happened. Consider, for example, Supreme Court Justice Antonin Scalia’s concurring opinion in Kansas v. Marsh (no. 04-1170, 6/26/2006): Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. Scalia was upset at an academic study on wrongful conviction authored by Samuel Gross, a law professor at the University of Michigan. Examining 340 exonerations between 1989 and 2003, a number that they took pains to emphasize represented only a fraction of the wrongfully convicted, Mr. Gross and his colleagues concluded that these unfortunate events were not rare. Anxious to undermine their findings, Justice Scalia referred to a New York Times opinion piece by Clatsop County, Oregon D.A. Joshua Marquis deriding Gross’ work, going so far as to insert a substantial chunk of the op-ed into the Court’s written opinion: Let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent--or, to put it another way, a success rate of 99.973 percent. Leaving aside for now D.A. Marquis’ estimate of their prevalence, dividing wrongful convictions by all convictions seems an appallingly wrongheaded way to estimate the accuracy of the adjudication process. A goodly number of felony convictions -- probably a clear majority -- are what police call “slam-dunks”. When officers find someone standing over a dead body, holding a smoking gun, or, more realistically, listen to a spouse tearfully admit they killed their partner, and so forth, the chances of prosecuting let alone convicting the wrong person are zero. When we choose a hospital for critical surgery, we’re not interested in its record for treating hangnails; if we’re interested in how well the system discriminates between the innocent and guilty when it really counts, cases where the evidence is essentially uncontested don’t belong in the pool. Here’s what the formula should look like: Wrongful convictions What constitutes “significant processing” is something for another time. For now let’s turn to the numerator, the number of wrongful convictions. According to the Innocence Project, which handles only DNA-based cases, there have been 215 post-conviction DNA exonerations in the U.S. How did they come to be? Many can be blamed on faulty eyewitness identification. Other major causes include suggestive witness interviewing, false and coerced confessions, lying informants and junk science. Actually, since DNA is recovered in only a small proportion of violent crime, mostly rape and murder, these exonerees were in a sense “lucky”, as once someone is adjudged guilty the burden of proof shifts to them to demonstrate their innocence, something that’s awfully hard to do without DNA. In a recent column a New York Times writer reported that the adjudicative system’s opacity makes it impossible to estimate the prevalence of wrongful conviction. That hasn’t stopped those who seem determined to make the issue go away. Only days ago D.A. Marquis posted a blog entry regurgitating his criticisms of Mr. Goss’ work, and particularly the researcher’s definition of “exoneration,” which includes (the very few) instances where a convict was retried and acquitted. According to the D.A., “such a definition would seriously wound if not torture the true definition of exonerated, a word of great power that most people equate with actual innocence.” That, sadly, is how many prosecutors see it. Happy enough to convict based on a legal construct (beyond a reasonable doubt) that has sent innocents to prison, and a few probably to death, D.A. Marquis has the cheek to demand that the few who get a second bite of the apple and are found not guilty must somehow prove themselves “factually innocent” -- meaning, to his satisfaction -- before he’ll add them to his formula’s numerator. But not to worry, he coos, “Americans should be far more worried about the wrongfully freed than the wrongfully convicted.” .027 rules! Did you enjoy this post? Be sure to explore the homepage and topical index! Home Top Permalink Print Share this post Posted 3/2/08 Despite prosecutors’ best efforts, a wrongfully imprisoned woman gets a break By Julius (Jay) Wachtel. No one’s surprised anymore when some poor soul is let out from prison after serving a decade or more for a crime they didn’t commit. When news broke last November of the release of Lynn DeJac. 44, what seemed most noteworthy wasn’t that she spent nearly fourteen years behind bars wrongfully convicted of murdering her daughter, but that she was the first woman to be freed by DNA evidence. Actually, her release had been bitterly opposed by the D.A., who until earlier this month held on to the fiction that DeJac was guilty even though the evidence pointing elsewhere was overwhelming. But we’re getting ahead of the story. “Her mother liked good times and bad men.” That reputation, detectives now say, was what turned jurors against DeJac. Even in her hardscrabble Buffalo neighborhood it was considered bad form to stay out all night partying and leave 13-year old Crystallynn and 8-year old Ed to fend for themselves (their father was in prison for molesting the girl). So when Crystallynn was found strangled to death early one morning in February 1993 suspicion quickly fell on her mother. It didn’t help that a male neighbor who once lived with DeJac said that she didn’t deny killing the child. Still, evidence seemed wanting until a local hoodlum awaiting trial for forgery came forward to say that DeJac confessed to him in a bar. There was also a spurned lover, Dennis Donohue. DeJac had taunted him the night of the murder by kissing another man, prompting Donohue to chase them around town and at one point even hold a knife to his rival’s throat. Prosecutors deemed Donohoe’s account of DeJac’s comings and goings sufficiently important to grant him immunity, an odd decision that would come back to haunt them years later. In September 1993, while DeJac was still free, a 42-year old Buffalo woman, Joan Giambra, was strangled to death. That she had been dating Dennis Donohue raised a few eyebrows, but as there was no evidence tying him to her murder the case stalled. Then DeJac went to trial. Despite a lack of physical evidence she was convicted and got 25 to life. With Crystallynn’s killing “solved” and the Giambra case gone cold the police turned to other things. Twelve years later Buffalo PD reinstituted its cold case squad. DNA recovered from Giambra’s fingernails was analyzed using new, more sensitive techniques; as detectives hoped, it matched Dennis Donohue. He was arrested for murder and jailed. DeJac’s lawyers, assisted by the Innocence Project, demanded that Donohue’s DNA be compared against DNA found at the scene of Crystallynn’s killing. Again, there was a match. DeJac was granted a hearing. The judge -- the same who presided at her trial -- excoriated prosecutors, openly challenging their kid-gloves approach to the man whom everyone assumed killed both young Crystallynn and Giambra. But the D.A. insisted that nothing uncovered so far proved that DeJac was innocent. Incredulous, the judge ordered DeJac released and the charges dismissed. The D.A. insisted he would refile. Local media went crazy. Even detectives got into it, publicly calling DeJac innocent, the witnesses against her liars and Donohue everything short of guilty. That wasn’t the end of it. Prosecutors were now faced with a case they couldn’t possibly win. That’s when Dr. Michael Baden, the forensic pathologist who testified that Phil Spector’s girlfriend shot herself, rode to the rescue. Asked by the D.A. to review Crystallynn’s autopsy, the man mocked by the Buffalo News for twisting facts to suit his clients’ needs determined that she hadn’t been strangled after all! Instead, her death was supposedly due to an overdose of cocaine. His improbable findings were parroted by the current medical examiner, who blamed a combination of cocaine and head trauma. Then another in Spector’s stable of experts, Dr. Werner Spitz, threw a curve, saying that he didn’t think there had been enough cocaine in Crystallynn’s system to kill her. But after receiving “additional” evidence he supposedly changed his mind. On February 28, 2008 the ticking time bomb was defused. Citing their experts’ conclusions, prosecutors dismissed the case against DeJac, not for insufficient evidence, but because no crime had been committed! Ergo, there was no longer any need to concern oneself with Donohue, a good thing since he had been immunized. That didn’t sit well with cold case squad detective Dennis Delano, who promptly gave the press a police crime scene video demonstrating that Crystallynn’s room had been upturned in what any reasonable person would conclude was a struggle. Delano was promptly relieved of duty, an instance of what local reporters called a cop being punished for daring to tell the truth. And not just any cop, but a celebrated veteran who in 2007 helped free Anthony Capozzi, a man who spent 20 years in prison for two rapes he didn’t commit. Donohue’s trial for killing Joan Giambra is pending. Oh, did we say that he’s also suspected in a 1975 strangling? But that’s a story for another day. Did you enjoy this post? Be sure to explore the homepage and topical index! UPDATES 06/09/08 Donohue convicted of murdering Joan Giambra Home Top Permalink Print Share this post Posted 1/8/08 IF IT DOESN’T FIT, YOU MUST... Why do prosecutors resist post-conviction DNA analysis? By Julius (Jay) Wachtel. ...acquit! It’s been twelve years since the late Johnnie Cochran urged a Los Angeles Superior Court jury to find O.J. Simpson not guilty of murdering ex-wife Nicole Brown and her friend Ron Goldman. Knowing full well that the blood-soaked leather glove recovered at the scene had shrunk, the wily lawyer was delighted when a prosecutor asked Simpson to pull it on -- over a protective latex glove, no less. And the rest, as they say, is history. Johnnie and his crew of legal beagles were also anxious to discredit LAPD’s DNA evidence. You would be too, if somebody’s blood was discovered in and near YOUR car and on YOUR socks in YOUR bedroom. Good thing for O.J. that another sharp lawyer, Barry Scheck, got an expert to testify that the blood was deposited by police through cross-contamination. Scheck went on to co-found the Innocence Project, which has used DNA analysis to exonerate more than two-hundred wrongfully convicted persons. Now a California prisoner, Kenneth Clair, is trying to use DNA to reverse a 1987 murder conviction. Although the evidence that sent him up the river is circumstantial, it’s also so compelling that his own lawyer apparently doubted Clair’s innocence. For one thing, the victim was killed only hours after Clair was released from jail for ransacking her home. For another, Clair’s ex-girlfriend swore that she saw him with items that were reportedly in the victim’s house shortly before the murder. Perhaps most damaging was a taped phone call the ladyfriend placed for detectives, in which Clair neither admitted nor denied the killing. After the trial some of the proof began unraveling. The ex-girlfriend took back much of what she said. A child witness insisted that the man he saw had really been white, but that the victim’s live-in boyfriend, a white motorcycle gang member, forced him to say that the suspect was black like Clair. And so on. Recantations and newly discovered evidence, often of doubtful veracity, aren’t unusual. What makes this case different is that recent DNA analysis excludes Clair as the donor of biological material found on the victim’s body and clothing. This the Orange County D.A. readily concedes. But he vigorously denies that it exculpates Clair. No, he didn’t deposit the DNA, but neither is there any proof that whoever did was the killer. Technology often leads to as many questions as answers. Sometimes it also offers a possible solution. Orange County could submit a profile of the crime scene DNA to the FBI’s databank, which contains more than four million DNA profiles of convicted felons and sex offenders. If there’s a match, that person could be investigated to determine whether they had a motive and opportunity to commit the crime. This isn’t just of trivial interest: Clair is on death row. But the D.A. says no, no way. Rules stipulate that the FBI databank be queried only when the perpetrator is unknown. In this case, he is not only “known” but convicted and condemned. End of story! Sad to say, the D.A.’s attitude isn’t surprising. In exoneration after exoneration prosecutors have forcefully resisted every step of the process, from submitting DNA for analysis, to holding hearings, to admitting evidence in court, even to releasing a clearly innocent man, all supposedly for the sake of defending the “finality” of the judicial process (and, one suspects, to avoid lawsuits and embarrassment.) By most accounts the facts weigh heavily against Clair. Still, the perception that justice is being served is also important. The attitude of the Orange County D.A., itself no stranger to the problem of wrongful conviction, does nothing to enhance our confidence in the criminal justice system. Indeed, it’s the precise opposite of what one would expect from public servants for whom truth should be the most important objective. Perhaps the wise men and women in that office are confused about why Lady Justice wears a blindfold. It’s there to assure fairness, not to make herself purposefully ignorant. Did you enjoy this post? Be sure to explore the homepage and topical index! UPDATES 05/25/10 The Supreme Court agreed to decide if arbitrary decisions not to turn over DNA to defendants can be challenged in a Federal civil rights lawsuit (Skinner v. Switzer. See 3/25/10 entry). Circuit Court of Appeals case Home Top Permalink Print Share this post Posted 12/19/07 Poor witness ID + pressure to solve a crime = tragedy
By Julius (Jay) Wachtel. Inspiring stories don’t often come around, so when the Orange County (CA) Register published the first installment of a two-part series on the exploits of a Santa Ana police detective, we curled up for a good read. Then he recoiled in horror. No, we weren’t horrified by the crime, terrible as it was. A man driving a black, shiny 4-door Cadillac picked up a prostitute. She was driven to a secluded place, forced to perform unspeakable acts, choked nearly to death, then for good measure thrown in a dumpster. Fortunately, she survived. Amazingly, she had memorized six digits of the car’s license plate. Unfortunately, there was no match in the DMV database. Why did our ears curl? In horror at the investigation. In part two of the series we learn that four months after the crime a Santa Ana patrol officer caught two men having sex in a Cadillac. Although the car was white, the license plate didn’t match and the act was between members of the same gender, police placed a photo of the driver in a six-pack and showed it to the victim. Sure enough, she picked him out, and the man was arrested. At the preliminary hearing she nailed him again, this time in person. Despite the man’s protests, the judge bound him over for trial based on her identification alone. End of story? Thankfully, no. Three days later the DNA came back. There was no match. Although prosecutors don’t necessarily dismiss cases under such circumstances -- after all, prostitutes can have multiple sex partners -- this time they did. It’s a good thing. Five years later the FBI’s national databank spat out an alert that the DNA profile entered by Santa Ana police matched a DNA profile from a rape in a small Washington town. Police there had a suspect. He lived in Westminster, Calif., a city near Santa Ana. Our intrepid detective went to the man’s house. Bingo! A black 4-door Cadillac. Bingo! Its license plate was nearly identical to what the victim reported. Officers followed the car until its driver discarded a cigarette butt, then pounced on the roach. Bingo! The DNA matched. Lock him up! They did. Unfortunately, the suspect killed himself while out on bail. Case closed. What if there hadn’t been DNA to exculpate the first guy? Can you say “wrongful conviction”? Indeed, eyewitness goofs are the leading cause of wrongful convictions. DNA has made the magnitude of the problem all too apparent. For a classic example look no further than Ronald Cotton, whose wrongful conviction for two rapes has become a case study in misidentification. (It took the innocent man eleven years to get out, but who’s counting?)
Yes, there’s a catch. Since a perpetrator’s DNA is only present in about twenty percent of violent crime, most wrongfully convicted persons have to try to prove their innocence another way. And prove it they must: once a jury renders a verdict of guilty the burden shifts from the State to the defendant. Imagine how Rhode Island police detective Jeffrey Scott Hornoff must have felt when he was convicted for murdering his wife based on nothing more than lying about an affair. Hornoff spent six years in prison before the real killer, tortured by his conscience, stepped forward to confess. (The killer’s brother had known all along but kept quiet.) DNA aside, what can a cop do to reduce the risk of arresting the innocent? In the present example, the 20-year Santa Ana PD veteran spoke eloquently of his determination to find the prostitute’s killer. “She was a righteous victim, and I felt bad for her. If you read the police reports, you'd be sympathetic to her too, even if she was a prostitute.” What’s wrong with that? Detectives should be motivated by one thing alone: discovering the truth. Pressures from the boss or the public, desire for recognition, and yes, even sympathy for the victim can lead to hasty decisions and poor police work, with catastrophic consequences for innocent persons and for others who may be victimized because the actual perpetrator remains at large. No one knows that better than David Allen Jones. A mentally retarded man with an IQ of 62, he was talked by LAPD detectives into confessing to murdering four prostitutes in 1992. Although DNA recovered from the victims was not his, Jones was nonetheless tried and convicted under the theory that his DNA was masked by the DNA of the victims’ other sexual partners. Nine years later, an LAPD detective working cold cases matched the four rape/murders attributed to Jones plus six more to another man already in prison for rape. Jones was freed and received settlements of $720,000 from Los Angeles and $74,600 from the State compensation board. Did you enjoy this post? Be sure to explore the homepage and topical index! RELATED WEBSITES UPDATES 06/24/10 A report ordered by the New Jersey Supreme Court lays out the many weaknesses of eyewitness ID and recommends pretrial hearings whenever it may be used as evidence. Report 05/28/10 Faulty cross-racial identification -- a white victim’s unfamiliarity with black hair styles -- is cited as the cause of a mistaken ID that led an innocent man to spend twelve years in prison. Home Top Permalink Print Share this post Posted 11/4/07 Bowing to cops and victim groups, the Guvernator nixes justice reforms By Julius (Jay) Wachtel. Bowing to heavy pressure from prosecutors, police and victims’ rights organizations, Governor Arnold Schwarzenegger vetoed the entire work product of the obscure California Commission on the Fair Administration of Justice, an organization created by the State Senate in 2004 to address concerns about wrongful convictions. In 2007 the CCFAJ sponsored three bills: SB 756, asking that Cal DOJ and POST develop guidelines for the administration of photo and live lineups; SB 511, requiring that police record in-station interrogations of those suspected of violent crimes; and SB 609, requiring corroboration of jailhouse informants. Similar measures have been recommended and enacted in about a dozen States. For example, North Carolina requires, among other things, that officers showing photo lineups take special precautions to avoid influencing witnesses and that photographs be displayed sequentially rather than as a group. (These provisions go far beyond SB 756, which only calls for a study.) Echoing the shrill views of nay-sayers, the Governor called CCFAJ’s proposals unnecessary, unduly restrictive and burdensome. Perhaps the most rabid opposition was to the lineup bill. Opponents led by L.A. County District Attorney Steve Cooley claimed that California’s system of justice is so accurate -- 99.9999%, the proportion of all convictions not proven wrongful -- that we don’t need a bunch of do-gooders and know-nothings poking their head into the serious business of crime-fighting. California law requires that accomplices be corroborated, so asking the same for snitches behind bars seems perfectly reasonable. Even so, the California State District Attorney’s Association came down hard against the measure. Maybe they missed a report by the American Bar Association that called for exactly what the CCFAJ recommended. Or maybe they forgot that the most notorious jailhouse liar in American history (informant is much too nice a word for this guy) was -- yes! -- a California guy, Leslie Vernon White, a career criminal who repeatedly made up bogus confessions to use against cellmates by calling around from a jail phone pretending to be a cop. Still not convinced? In March 2007 the U.S. Ninth Circuit Court of Appeals ordered that a Federal civil rights lawsuit against Long Beach PD detectives and the L.A. County District Attorney proceed to trial. The plaintiff, Thomas Goldstein, had been released in 2002 after serving twenty-four years for a murder he did not commit. His conviction was based on a mistaken eyewitness ID and false testimony from infamous jailhouse informant Edward Fink (yes, that’s his real last name.) Although the eyewitness later said he was pressured by police, and Fink was conclusively proven a liar, prosecutors refused to free Goldstein: as far as they were concerned he was convicted, his conviction was upheld on appeal, and that was that! It took a lengthy investigation by a Federal magistrate and concurrence by a District judge and a three-judge Federal panel to finally force the innocent man’s release. And here we come to the heart of the matter. Personal interests aside, some judges and prosecutors are so in thrall to process that they resist any challenges to the “finality” of judgments -- even those clearly based on lies. How high does the misplaced confidence go? During his confirmation hearings Supreme Court Justice (then nominee) Samuel Alito repeatedly refused to agree that wrongfully executing someone was unconstitutional. The best he could do was to say “it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt.” In other words, once convicted, forever damned. His response, or rather, non-response, caught Senator Pat Leahy, himself a former prosecutor, completely off guard. Such attitudes help explain why, in a 5-4 ruling, the U.S. Supreme Court overruled a last minute stay halting the planned execution of Thomas Thompson. (He was gassed on schedule.) Tompson’s alleged crime? An Orange County rape/murder. The key evidence? Testimony of two jailhouse informants, both declared liars by the appeals court. Oh, yes. One of the informants was Edward Fink. Post-adjudication claims of innocence must meet exceedingly high standards. It’s not enough to show that key trial evidence was false or mistaken, or that the remaining evidence clearly doesn’t meet the “beyond a reasonable doubt” standard required to convict in the first place. To be heard a petitioner must present newly-discovered, reliable evidence that demonstrates it is more likely than not that they are factually innocent. Proving a negative -- that one is not guilty -- is tough. Most who succeed do so with DNA; for example, by showing that semen or pubic hairs are not theirs. But DNA is only recovered in twenty percent of violent crimes, usually rapes. Even where key trial evidence has been completely discredited (e.g., West Memphis Three, L.A.’s Bruce Lisker), the absence of extraordinary proof of innocence such as DNA means that convicted persons are out of luck. Rabid opposition from law enforcement and victim rights organizations has overwhelmed all efforts at reform. What can be done? Most convicted persons are poor. Those with plausible claims of innocence should be given funds for lawyers, investigators and forensic experts. Petitioners must not be forced to prove a negative; to be freed it should suffice that, considering all the evidence in the light of what is presently known, one would not be convicted anew. Grand juries can take on some of the burden of providing post-conviction relief. That was the approach in the 2004 murder of Amy Yates where jurors impaneled long after the trial exonerated one falsely convicted youth and indicted another. And since wrongful convictions are often traced back to mistakes by police and prosecutors, they must accept responsibility as well, developing practices and instituting training programs that greatly improve the accuracy of their work. Confidence in American justice is starting to fray. While we can’t expect absolute perfection, the many miscarriages of justice brought to light by innocence projects around the country suggest that preventive and remedial measures are urgently in order. The next victim of flawed justice could be you. Did you enjoy this post? 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