Posted 9/3/11

THE “WITCHES” OF WEST MEMPHIS

Outraged citizens called them killers.  They were wrong.

     By Julius (Jay) Wachtel.  On August 19, eighteen years after their conviction for the gruesome murders of three eight-year old boys, three not quite middle-aged men walked out of an Arkansas prison.  Two, Jason Baldwin and Jessie Misskelley, had been doing life.  The third, Damien Echols, the reputed leader of a local witches’ cabal, was on death row, awaiting the same end that befell his forerunners in Salem some three centuries earlier.

     The bodies were found on May 6, 1993, in and next to a creek in West Memphis.  James Moore, Steven Branch and Christopher Byers had been missing for a day.  Each bore the marks of a savage beating.  They were lying naked, in fetal positions, their wrists bound with shoelaces, their bodies covered in wounds.  One child’s genitals were missing.

     The unspeakable crime carried all the hallmarks of a ritual killing.  Really, it could be nothing else.  Who in the deeply religious community of 27,000 could do such a thing?


     In 2008 the actor Sean Penn produced “Witch Hunt,” a feature-length documentary about one of the most remarkable miscarriages of justice in modern American history.  During the early 1980’s authorities in Kern County, California became convinced that uneducated transplants from the Ozarks had been engaging in the most unsavory practices.  During a frenzied, two-year period prosecutors filed charges accusing forty-six defendants with raping and molesting as many as sixty children.

     In the first case, in 1983, ten defendants, including two couples, Alvin and Debbie McCuan and Brenda and Scott Kniffen were accused of sexually abusing and torturing the McCuan’s two girls, going so far as to rent them out to producers of kid porn movies.  Based on the children’s testimony the Kniffens and McCuans were convicted.  They got 240 years.

     Cabals of child molesters were turning up everywhere.  John Stoll, the film’s central character, fell into the whirlpool when he failed to make child support payments.  An inquisitive social worker asked his ex-wife if she thought that he could be one of those horrible abusers.  Her reply, that it was possible, led authorities to interrogate six kids, including Stoll’s son.  Stoll and three acquaintances were charged with a variety of unspeakable acts, including sodomy.   Stoll was convicted.  He drew 40 years.  In a similar case Jeff Modahl and six others were convicted on the testimony of his two daughters, aged ten and twelve.  One tried to recant after the trial but to no avail.  She first attempted suicide two years into her father’s 48-year sentence.

     In short order authorities had uncovered eight rings of molesters and sent thirty adults to prison.  And still they weren’t done.  In 1985 deputies opened an investigation into the alleged ritual murder of twelve children by an 80-strong Satanic cult.  They searched everywhere but couldn’t find the bodies.  Finally the state attorney general stepped in and the madness abated.

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     For a while there was no helping Stoll and the others.  But as the children started passing into young adulthood the prosecutors’ house of cards began to crumble.  Former “victims” offered devastating, heart-rending accounts of the pressures placed on them by investigators.  “I was scared they were going to take my mom away,” said one.  “They kept pushing and pushing until they got the answers they wanted.”

     Appeals courts eventually ruled that the accounts of abuse had been implanted into the minds of scared and impressionable kids.  Nearly every conviction was reversed, but not before some of the defendants had served long terms.  The Kniffens and McCuans did twelve years; Modahl, fifteen.  Stoll, the last one released, was in for nearly twenty.     Settlements and jury awards followed.  Scott and Brenda Kniffen got $275,000.  Modahl and his codefendants shared $4.75 million.  Stoll got $700,000 from the state, then in 2009, $5 million from Kern County.


     A decade later it was déjà vu all over again.  During 1994-95 forty-three persons were charged with sexually abusing sixty children in Wenatchee, Washington.  Among the accused were pastor Robert Roberson and his wife Connie; Honnah Sims, a Sunday-school teacher; and parishioners Harold and Idella Everett.  Many including the Robersons and Sims held fast and were acquitted.  But seventeen were convicted.  Most were poor, uneducated or, like the Everetts, mentally retarded, thus easy prey for police and prosecutors.   Harold pled guilty and got 23 years; his wife, four.

     Just like Bakersfield, the “facts” were produced by suggestive interviewing.  Some of the children were patients in a psychiatric hospital.  One, a 16-year old girl with suicidal tendencies would later ask, “Why did almost all my treatment...deal with me having to remember sexual abuse that never happened?”   (Her parents, originally charged with 1,000 counts of rape, were each convicted of one.  Each got ten years.)  Another girl, whose parents sent her to be treated for behavioral problems, complained that police and caseworkers pressed her to say that “my parents did things to me and to my sisters...and if I didn’t, I wouldn’t get out...They had their own ideas of what happened in my family.  When I disagreed and said they were wrong, they said I was lying...I was a prisoner....”

     Her father, a bipolar man, confessed and was sentenced to 47 years.  His wife got forty-six.

     Appellate courts soon stepped in, and within five years every conviction had been overturned.  Threatened with retrial, a few of the more susceptible defendants pled guilty to minor, unrelated charges and walked away with nothing beyond a shattered life and a prison record.  Others who fought back got sizable settlements.  Among the largest was $3 million to Sims in 2001 and $700,000 to Robert Robeson in 2007.


     Bakersfield and Wenatchee weren’t the only examples.  At the time of the killings in West Memphis hysteria about child abuse was sweeping the country.  It was no surprise that suspicion fell on Echols, whose Wiccan tendencies and fondness for dressing in black had raised plenty of eyebrows.

     Police interviewed Echols and his best friend Baldwin but both steadfastly denied any involvement.  Authorities offered a reward.  Soon two youths stepped forward.  One said that he actually saw Echols, Baldwin and Misskelley kill the boys.  But he couldn’t identify the suspects from photographs.  Still hoping to cash in, his mother secretly taped a meeting with Echols.  He said nothing of interest.  Another youth told police that Echols confessed while drunk.  But he later recanted.

     Determined to make their case, detectives turned to Misskelley, a developmentally disabled youth who was close to Echols.  After twelve hours of relentless interrogation the cops had what they needed.  Misskelley admitted belonging to a cult that mutilated animals and held orgies in the woods.  He, Echols and Baldwin had enticed the victims to the creek, forced them to commit sex acts, then killed and mutilated them.

     What happened next was widely reported.   There have been two documentary films, the widely-acclaimed “Paradise Lost: The Child Murders at Robin Hood Hills” and a follow-up, “Paradise Lost 2: Revelations.”  A third is supposedly in the works.  At least two websites specialize on the case.  A nonprofit, wm3.org, is funded by the defendants’ vast contingent of supporters.  A second, sponsored by TruTV offers an exhaustive account of the investigation and trial.

     We’ll use the latter to summarize.  Misskelley was tried separately.  He had already recanted his confession, but it was nonetheless admitted as evidence.  Two defense experts took the stand to convey what seemed obvious – that police manipulated a frightened, intellectually challenged youth into making implausible admissions that were riddled with inconsistencies.  But the judge disallowed their most pertinent criticisms.  Lacking that, Misskelley’s conviction was virtually assured.

     Echols and Baldwin were tried together.  They had a rough go of it.  Three witnesses testified seeing them at the crime scene; three more swore that they confessed.  Defense lawyers poked holes into each account.  What they didn’t learn until later was that one of the witnesses to whom Echols supposedly confessed had only learned of the case from his counselor at juvenile hall.  (Horrified at the boy’s testimony, the man volunteered to testify.  He was turned away.)

     Indeed, prosecutors brought in a great deal of questionable evidence.  Common fibers present in a wide variety of clothing were used to place the defendants at the scene.   A medical examiner testified that the boys’ wounds could have been caused by a serrated knife that was found in a lake near the home of Baldwin’s parents.  Echols, a witness said, had a similar knife.  But perhaps the most damaging testimony came from a self-styled cult “expert” who concluded that the murders were part of a Satanic ritual that was consistent with Echols’ pagan beliefs.

     And that’s not all.  During deliberations the foreman made sure that jurors knew Misskelley had confessed.  That wasn’t known until recently, when an attorney who once represented the foreman let it out of the bag.

     Thanks to the films and a devoted retinue of skeptics the convictions gained a lot of notoriety.  Highly qualified lawyers came in pro-bono to take over the appeals.  Forensic experts re-examined the physical evidence.  They concluded that the killings didn’t take place where the bodies were found and that the victims’ wounds were caused by animals.  Such views, of course, are fundamentally at odds with Misskelley’s confession.

     Advances in DNA also made it possible to analyze two hairs from the scene, one stuck in the bindings that secured the wrists of victim James (Michael) Moore, and another found on the ground.  Neither was consistent with the defendants’ DNA.  However, one hair was consistent with the DNA of Terry Hobbs, the stepfather of victim Steven Branch, and the other was consistent with the DNA of David Jacoby, a friend of Hobbs.  A new witness has also come forward to say that despite Terry Hobbs’ past denials, he had in fact met with the boys on the afternoon of their disappearance.

     Considering all the new evidence, the Arkansas Supreme Court ordered that an extraordinary hearing be conducted this December to determine whether to hold a new trial.  As of two weeks ago those plans are off.  Echols, Baldwin and Misskelley entered “Alford” guilty pleas, in which accused maintain their innocence while agreeing that there is sufficient evidence to convict.  They were resentenced to time served plus ten years of unsupervised parole.  (Interestingly, Alford pleas had also been used in the Wenatchee cases, where the only crimes that took place were in the imagination.)


     For prosecutors it was a win-win situation.  A negotiated plea dodged the huge embarrassment that an acquittal would bring and protected the state from paying immense damages.  The defendants also got something.  Had they failed to win a retrial, much of their leverage would have disappeared, and along with it their prospects of release.  If they went to trial there was always a chance that critical witnesses or key evidence might have become unavailable.  And who can predict what jurors might do?

     These are not risks to be taken lightly.  Yet one nonetheless wishes that the West Memphis 3 would have rolled the dice.  Indeed, that’s what Jason Baldwin said he would have done.  But the deal was for all or none, and his friend Echols had already been in solitary confinement for ten years.

     As for the D.A., he seems desperate to slam the doors shut on a case that is destined to occupy a prominent spot in the annals of miscarriages of justice,  right alongside the Dreyfus affair.  “We don’t think there is anybody else,” he insists.

     No one, that is, but the killers of three eight-year old boys.

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Is a Case Ever Too “Cold”?     Wrongful and Indefensible     False Confessions Don’t Just “Happen”

House of Cards     Can We Outlaw Wrongful Convictions?

RELATED WEBSITES

West Memphis 3:  wm3.org     TruTV     Arkansas Times

Wenatchee:   Religious Tolerance    48 Hours Mystery (forthcoming)     Bakersfield:  Religious Tolerance

Other cases:  PBS Frontline (“Little Rascals,” etc.)


Posted 8/12/11

FALSE CONFESSIONS DON’T JUST “HAPPEN”

When expediency is the more important value, tragedy follows

     By Julius (Jay) Wachtel.  Forget C.S.I.  Confession is the grease that keeps the wheels of American justice turning.  Really, it’s hard to imagine how our bursting-at-the-seams criminal justice system could function without it.  What it can do without are false confessions.  Yet these have been more commonplace than one might think.  Where does the blame lie?  Read on.

     In a recent journal article University of Virginia law professor Brandon L. Garrett examined the cases of thirty-nine innocent persons who falsely confessed.  Each was convicted and subsequently exonerated by DNA.  Douglas Warney was a typical example.  A sometime psychiatric inpatient with an IQ of 68, he confessed to a 1997 murder and got twenty-five years to life.  Nine years later DNA from the scene was matched to the real killer.  He confessed, truthfully.  Warney was turned down for compensation because he wasn’t physically threatened or abused during interrogation and had contributed to his own problems by confessing.

     Warney appealed.  New York’s high court recently ruled in his favor.  Police subjected Warney to “calculated manipulation,” which considering his mental disability was unduly coercive.  He was also fed intimate details about the crime.  During oral arguments a justice pointedly asked the state’s attorney how Warney could have known that the killer used a twelve-inch serrated knife and stabbed the victim fifteen times.  “He may have been asked a leading question,” the lawyer conceded.

     Professor Garrett discovered that in all but two cases the confessions were full of insider information, making the accused look guilty as sin.  That didn’t happen by accident.

     It’s human nature to trust confessions.  Why would someone falsely admit to a crime?  Indeed, the law considers confessions and other “statements against interest” so credible that they are exceptions to the hearsay rule.  Few know this better than Jeffrey Deskovic.  Ten years into a life term for a rape/murder to which he falsely confessed, he finally got a lawyer to petition for a habeas hearing in Federal court.  Alas, the attorney let a key deadline pass.  A two-judge panel – one member was future Supreme Court justice Sonia Sotomayor – ruled that the error (the document was filed six days late) was insufficiently “extraordinary” and turned Deskovic away.  It would take another six years before DNA would identify the real killer.

     Deskovic was sixteen when police picked him up.  He confessed after hours of intensive interrogation because officers had promised to let him go home if he did.

     “Extraordinary” aptly describes what happened to Earl Washington.  Questioned in 1982 about the rape/murder  of a Virginia woman, he eagerly confessed to the crime and several others.  He also implicated another innocent man.  Washington’s good work earned him the death penalty.  Three years later he was within a few days of being executed when a team of pro-bono lawyers got him a last-minute stay.  It thankfully turned permanent.  But Washington would serve another fourteen years before DNA finally identified the guilty party.

     Oh, yes.  Washington’s IQ was only 69.  Why did he confess?  He was trying to help the police.

     More than a few defendants have falsely confessed because they feared rolling the dice by going to trial.  In 2005 two victims of a carjacking identified California man James Ochoa as the culprit.   A bloodhound supposedly followed the scent from a baseball cap left in the vehicle to Ochoa’s residence.  Police found DNA on the cap and in the car’s interior, but it wasn’t his.  Five family members also swore that Ochoa was nowhere near the crime scene.  But he had a drug record, and when a judge threatened him with twenty-five years should a jury find him guilty he pled guilty and got two.  Ten months later another man was arrested for another carjacking.  Yes – the DNA on the cap and in the car was his.  He confessed and Ochoa was released.

     Here are some recent news clips about false confessions:

  • July 2011:  A hearing will be conducted to determine whether DNA evidence exonerates three Arkansas men, known as the West Memphis Three, who have been imprisoned since 1993 for murdering three boys.  A judge will also consider whether the confession of one, a low-IQ youth who was tried separately (he recanted, to no avail) was improperly used in finding the others guilty.
     
  • May 2011:  Seven Chicago men who were imprisoned as teens in the 1990s for two unrelated rape/murders have been tentatively cleared by DNA tests that connect others to the crimes.  One match has a record for sexual assault and armed robbery; the other, who is deceased, was reportedly involved in a string of assaults and murders.  Prosecutors, though, are objecting to the release of the seven, as all confessed.  [See 11/4/11 update below.]
     
  • September 2010: A Mississippi judge released and exonerated Phillip Bivens, 59, and Billy Ray Dixon, 53.  They had served thirty years for murder.  Bivens, Dixon (he describes himself as a “slow learner”) and a third defendant, who died in prison nine years ago, confessed and implicated each other, supposedly after threats by police.  As for the real killer, who was recently identified through DNA, he’s already doing life for another rape.
     
  • August 2010:  An extensive investigation by the Raleigh News-Observer accuses North Carolina Bureau of Investigation agents of extracting false confessions from innocent persons. “SBI agents have cut corners, bullied the vulnerable and twisted reports and court testimony when the truth threatened to undermine their cases.”  The state crime lab also caught blame for biasing its findings in favor of prosecutors.
     
  • May 2010:  Up to 12,000 persons arrested by Chicago police during 1999-2008 will share in a $16.5 million settlement.  Their claim alleged that police arrested persons without adequate cause, then used “soft torture” techniques such as withholding food and water and denying bathroom breaks to get suspects to confess.
     
  • April 2010:  New York resident Frank Sterling was freed after DNA proved that the murder to which he confessed in 1982 was in fact committed by the original suspect, Mark Christie.  Sterling’s confession was extracted through a relentless twelve-hour interrogation session that included the use of hypnosis.  Christie was easy to find, as he is in prison for another murder that he committed two years after Sterling’s arrest.

     Cops, prosecutors and judges have manipulated and bullied vulnerable persons to get them to confess.  But confirmed modern-day instances of beating confessions out of people seemed rare.  That is, until last year.  That’s when the Feds convicted former Chicago police commander Jon Burge, 62, of perjury for falsely denying in an earlier civil suit that in the 1980s he and his officers extracted confessions through beatings, electric shocks and suffocation.

     Michael Tillman was one of Burge’s victims.  Freed in January 2010 after spending 23 years in prison for a murder he didn’t commit, he collected his certificate of innocence and promptly sued.  Only a few days ago fifteen current Illinois inmates petitioned the state supreme court for evidentiary hearings.  Their claim, which is backed by affidavits from current and former prosecutors, is that Burge and his brutal cops beat false confessions out of them, too.

     Officers learn in the academy that when interviewing victims and witnesses they should avoid being suggestive or offering details that only the perpetrator would know.  Yet when it comes to suspects the gloves come off, at least figuratively.  How to get people to confess is an accepted component of advanced police training.  One of the best known methods, the “Reid” technique, urges officers to come up with “themes or reasons that allow the suspect to salvage self-respect while confessing.”  There are tips for overcoming denials, getting suspects to “bond” with police, “stimulating” confessions, and crafting questions that essentially trap persons into confessing.

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     Reid asserts that his approach is equally useful in exonerating the innocent.  But academic experts disagree.  After studying 125 cases of false confession, professors Richard Leo and Steven Drizin concluded that methods such as Reid’s are psychologically coercive and can induce false confessions, especially in juveniles and the mentally challenged.

     To make arrests as expeditiously and economically as possible police have adopted interrogation techniques that, while perhaps legal, risk inducing innocent persons to confess.  That may reflect a lack of technical knowledge (meaning that cops need to be retrained), a moral lapse (meaning that they ought to be reeducated), or perhaps a bit of both.

     As for training, professors Leo and Drizin urge that police receive instruction on the causes of false confession, abandon pseudoscientific approaches that try to intuit deception from nonverbal cues, learn how to properly assess the reliability of confessions, and become adept at interviewing juveniles and the mentally ill.

     On the other hand, if one believes that false confessions are the end result of a misguided moral crusade (e.g., the West Memphis Three; Chicago PD Commander Burge and his disciples) then something of a higher order may be called for.   One could begin with your blogger’s favorite all-purpose solution:  a quality-oriented approach to the craft of policing.

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Wrongful and Indefensible     The Tip of the Iceberg     The Witches of West Memphis     House of Cards

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Juan Rivera case     USA Today article on why suspects falsely confess     “Convicting the Innocent

The Substance of False Confessions     The Problem of False Confessions in the Post-DNA World

“The Craft of Policing”     Innocence Project on false confessions     False confessions website

Reports of New York State Task Force on Wrongful Convictions:  Preliminary   Final


Posted 7/29/11

RUSH TO JUDGMENT (PART II)

By now, every cop knows that witness ID can be chancy.  Right?

     By Julius (Jay) Wachtel.   Coming only three weeks after asserting that LAPD “absolutely” had the responsible party, Chief Charlie Beck’s explanation that “we would have been derelict had we not made the arrest” of what turned out to be an absolutely innocent man left more than a few heads shaking.

     In Rush to Judgment we assumed that detectives had arrested Giovanni Ramirez (left photo) without a warrant because the D.A.’s office never filed charges.  According to Chief Beck, though, a warrant had indeed been issued.  That’s surprising as the evidence was frightfully thin.  It was only through happenstance that Ramirez’s parole officer told cops that his client resembled the artist’s sketch that had been plastered on billboards.  There was no evidence that Ramirez went to the game.  (He turns out not to be a fan.  Go figure.)  Search warrants yielded zip:  no evidence of Dodger regalia, of being at the stadium, of having a grudge against the victim.

     LAPD wound up where they started, with virtually nothing but eyewitnesses.  Then an LAPD insider confirmed what many already suspected, that the identification of Ramirez was “weak and tentative.”  If the two now charged in the beating are truly guilty, that makes perfect sense.  One of them is on the right.  He’s Louie Sanchez, 29 (the other is an Anglo.)  Other than being Hispanic and having a neck tattoo, he looks little like Ramirez, whom he outweighs by a large margin.

     Maybe the judge who signed off on Ramirez’s arrest warrant (and on search warrants for his two crash pads) knew something more.  Or maybe he was oversold by detectives, a possibility that Chief Beck speculated might have skewed his own view of things.

     After exonerating Martinez LAPD set out its new case, which seems far more compelling.  Photographs reportedly depict Sanchez and his buddy Marvin Norwood, 30, a bulky white guy, sitting in the same section as the victim.  Spectators described the pair as belligerent and assaultive.  Police allege that they bragged  about the beating to coworkers, and when confronted pointed fingers at each other.  And that’s not all.  Sanchez’s sister, who was also at the game, reportedly implicated both in the assault.

     “Probable cause” can be an elastic concept, and all the more so when police are under pressure to solve a high-profile crime.  Fortunately the D.A. came through and forced the department to reassess.  And to its credit it did.  Consider how things might have turned out had the eyewitnesses expressed certainty about Ramirez.  “Yes, officer, that’s the guy.  I swear it!”  Can you spell w-r-o-n-g-f-u-l c-o-n-v-i-c-t-i-o-n?

     For just such an example look no further than the sad case of Thomas Haynesworth.  During the first two months of 1984 five Richmond, Virginia women were abducted and sexually assaulted.   Fortunately all survived.  One of the victims later spotted Haynesworth on the street (left photo.)  Convinced that he was the one, she called police.  They displayed his picture to the others.  Three more identified him.

     Haynesworth, then 18 and with no criminal record, insisted that his accusers were mistaken.  He went to trial.  He was convicted in three sexual assaults and acquitted of one.  His cumulative sentence:  74 years.

     Fast-forward to 2005.  Troubled by a series of wrongful convictions, Virginia’s governor ordered a review of past cases.  It took four years, but DNA conclusively proved that one rape for which Haynesworth was convicted, and the one for which he was acquitted, had in fact been committed by Leon W. Davis (right photo.)  Davis was already in prison, doing hard time for a string of sexual assaults that took place after Haynesworth’s arrest.

     By this time the Mid-Atlantic Innocence Project had taken up Haynesworth’s defense, and after a protracted investigation even prosecutors agreed that he was innocent – of everything.  Unfortunately, the two remaining cases lacked DNA, and one victim still insisted that Haynesworth was her assailant.  So to date he has not been fully exonerated (a motion is pending.)  A judge nonetheless granted Haynesworth parole in March, on his forty-sixth birthday.

     He had been locked up twenty-eight years.

     Haynesworth clearly resembles Davis.  Interestingly, Ramirez (left) and Sanchez (right), who don’t look that much alike, both resemble the artist’s rendering of the perpetrator.  It’s little wonder that eyewitness misidentification is considered the primary cause of wrongful conviction, figuring in three out of four DNA exonerations.

Click here for the complete collection of wrongful conviction essays

     Of course, detectives usually go well beyond photo lineups.  But sometimes they don’t dig deep enough, while at other times information is simply scant.  That’s when virtually any circumstance can be interpreted as an indicator of guilt, and the more the merrier.  Consider Ramirez.  Violent background?  Check.  Gangster appearance?  Check.  Neck tattoo?  Check.  Hispanic descent?  Check.  Present at the game?  Well, can’t say, but an ex-girlfriend supposedly was there.  Hey, maybe she was the getaway driver!  Check!  Really, who needed the parole agent?  Cruising the seedier parts of L.A. would have yielded any number of individuals who resembled the artist’s sketch and matched or bettered Ramirez’s profile.  In the end what kept him from getting hammered for something he didn’t do was concern over the ID’s and a skeptical prosecutor.

     Haynesworth wasn’t as fortunate.  Not only did he look a lot like the perpetrator, but a series of similar crimes had occurred.  One misidentification led to more, lulling detectives into overconfidence.  Certain that they had the right perp for each crime, they quit investigating.  The upshot was that an innocent man spent the cream of his adulthood in prison while the real evildoer continued victimizing others.

     What’s the moral to these stories?  It’s really quite simple.  Don’t just go on appearances.  Focus on corroboration.  And be sure it’s quality stuff.  Remember that a pile of junk is still that.

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Guilty Until Proven Innocent     Is a Case Ever Too “Cold”?     When Seeing Shouldn’t be Believing

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RELATED ARTICLES AND REPORTS

New York Times review of eyewitness evidence issues


Posted 4/24/11

TIME OR MONEY

If you haven’t the bucks for a good lawyer, get ready to do the time

     By Julius (Jay) Wachtel.  During the evening hours of March 1, 2011 a Cleveland police sergeant was working off duty directing traffic in front of a downtown parking garage.  An SUV exiting the garage made an illegal U-turn and stopped.  When the officer approached and banged on the door the vehicle suddenly sped off, knocking the cop to the ground.  Fortunately he wasn’t seriously injured.

     A check of the SUV’s license plate (more on this later) revealed that the vehicle was registered to W. Charles Geiger, a resident of Lakewood, an affluent suburb.   Police went to his home.  From his seat in a patrol car, the banged-up sergeant identified Mr. Geiger as the driver and his wife Patricia as the passenger of the vehicle that struck him hours earlier.

     The stunned couple denied any involvement.  Mr. Geiger said that he had spent the evening at a restaurant having dinner with his daughter.  As for the SUV, he wasn’t even driving it.  It was taken by his wife, Patricia, who went on a girl’s night out at a Cleveland theater with her friends.  They parked in the garage and left without incident.  Mr. and Mrs. Geiger suggested that officers check with their daughter, restaurant employees and Patricia Geiger’s passengers.  In fact, an officer apparently spoke with the daughter, who confirmed her father’s story and displayed a receipt for the meal.

     It was all to no avail.  Convinced that the sergeant’s identification was enough, officers arrested Charles Geiger for felony assault and other charges, and Patricia Geiger for obstructing justice by lying about what happened.

     Unlike most of those with whom police come into contact, Mr. and Mrs. Geiger were prominent citizens and very well-heeled.  They sat out the next twenty hours in the slammer, sharing intimate space with unsavory strangers, while their lawyers busily gathered a cornucopia of exculpatory evidence.   By that afternoon the D.A. had the meal receipt as well as affidavits from the daughter, restaurant employees and Patricia Geiger’s friends (they insisted they used a different exit than the suspect.)  A time-stamped restaurant security video clearly shows Mr. Geiger and his daughter leaving when they said they did.  A garage video would later prove that the SUV that struck the sergeant was different from the Geigers’ vehicle.

     Prosecutors realized that the case against the Geigers was, to say the least, very weak.  They released the couple, Mrs. Geiger without charges, her husband on $500 bond.  His case was later dropped.

     So how to account for the license plate?  Hours earlier, the sergeant had chased a motorist driving a similar SUV  from a reserved parking space.  Unfortunately, that’s where Mrs. Geiger then chose to park.  The sergeant noticed her SUV while on his rounds and, thinking it was the same vehicle, wrote down the plate.  Bottom line: there’s a real cop-hater still on the loose, but he’s yet to be identified.


     “There was a warrant out for his arrest, and it just wasn’t a good idea for him to walk around wanted for such a serious crime.” So said Pennsylvania State Senator Shirley Kitchen (D – Philadelphia) about that fateful day when she told the siblings of a wanted but innocent man that he should turn himself in to police.  “I thought it was going to be straightened out.  I really did...I had no idea that this would have led to him being incarcerated for a year.”

     Eugene Robinson, 60, is the first to admit that he’s made his mistakes.  But he’s no rapist.  Yet there was no denying that old mugshot prominently displayed in the “Week’s Most Wanted” section of the August 4, 2008 Philadelphia Daily News.  An old booking photo – again, the man’s no angel – identified Robinson as a predator who held a sword to his victim’s throat.  U.S. Marshals offered a reward, and with neighbors whispering it was only a matter of time before someone tried to cash in.

     Robinson got his sister and brother to drive him to the senator’s office.  Maybe she would know what to do.  He hid in the car while they went inside.  And when they returned and passed on the senator’s well-intended advice, he gulped and took it.

     Only thing is, Eugene Robinson wasn’t a wealthy, well-known businessman.  He was a plumber, scratching out a living and trying to make restitution on a three-year old theft case.  No way could he make bail or hire investigators to prove what he knew, that the cops had the wrong guy.

     Since this is a post about mistaken arrests, not wrongful convictions, we know that Robinson wasn’t convicted.  He was eventually released, but not because authorities thought he was innocent.  Luckily for him, the alleged victim failed to appear at two preliminary hearings so the case was dropped.  (Had she shown up and for some reason mistakenly identified him, as has happened to others, we all know where Robinson would now be.)

Click here for the complete collection of wrongful conviction essays

     It later turned out that there really was a rapist, but his only connection with Robinson was in their names.  Authorities conceded the slip-up.  “There was clearly a name and sort of identity issue between this Eugene Robinson and the other guy,” shrugged a prosecutor.  In fact, nothing matched – not their appearance, social security number, birthdate or residence address.  Robinson’s mugshot and particulars somehow wound up in the wrong file.

     C’est la vie!

     Robinson was nonetheless punished.  All he had was a public defender who couldn’t spend a day running around gathering affidavits.  (Indeed, exactly what he did seems unclear.)  Unable to post bail, Robinson did five months awaiting trial.  Then when he was finally released – remember, the authorities still presumed him guilty – the state revoked his parole on the theft case, reportedly because he wasn’t paying restitution.  So he did another eight months.

     Robinson finally got a lawyer and sued.  Earlier this month the City of Brotherly Love sent some his way in the form of $85,000.  (If that seems puny, consider just how much leverage an unemployed ex-con really has.)  One can be sure that Robinson would happily give it all back in exchange for the way things were on August 3, 2008, when he had a job and a fiancée.  You see, she too had given up.


     America’s treatment of indigent defendants is shameful.  And that’s not just the ACLU’s opinion.  Here’s what Attorney General Eric Holder had to say:

    Putting politics aside, we must address the fact that, simply put, there is a crisis in indigent defense in this country.  Resources for public defender programs lag far behind other justice system programs, constituting only about 3 percent of all criminal justice expenditures in our nation’s largest counties.  In many cases, contract attorneys and assigned lawyers receive compensation that does not even cover their overhead.  We know that defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients.  We hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.

     It’s no secret that our adjudication system depends on guilty pleas.   Imagine what would happen if there was no imbalance in resources between prosecutors and defense and every defendant had the same wherewithal as Charles and Patricia Geiger.  Innocent persons who now plead to lesser charges to avoid stiff sentences would go to trial.  So would many who are truly guilty.  Perhaps there’s some light at the end of the tunnel.  Observers are closely watching the progress of Duncan v. Granholm (aka Duncan v. Michigan), a state case that challenges Michigan’s grossly underfunded system of indigent defense.  After three years of bouncing among state courts, the matter seems finally headed to trial.

     While every wrongful conviction begins with a mistaken arrest, it’s probably fair to say that most mistaken arrests don’t end with a conviction.  But even for those with the resources to fight back, the consequences can be dire.  “You’re supposed to feel protected by police,” said Patricia Geiger, who spent a scary day in a cell with a dozen women, most of whom we assume weren’t innocent.  “And we don’t feel that way anymore....We love Cleveland, and we want to see the city thrive.  But I’m a different person because of this.”

     Now imagine the impact on those like Robinson, or perhaps people just like you and me, who may not have the means to mount a spirited defense.  That, said reporter Leila Attasi of the Cleveland Plain Dealer, was very much on the Geigers’ minds:

    During a recent interview at their lakefront home, the Geigers said they won’t hold their breath in anticipation of an apology for the mix-up.  But they wondered aloud what happens to people wrongly accused of crimes –  and unlike them don't have the support system or resources to clear their name.

     What happens?  Charles and Patricia Geiger, meet Eugene Robinson.

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It’s Good to be Rich

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NPR report on revamp of eyewitness ID procedures     NIJ Report on indigent defense


Posted 2/10/11

NO END IN SIGHT

DNA exonerations of the wrongfully convicted continue as non-DNA work heats up

     By Julius (Jay) Wachtel.  Three years ago Jack Blackburn, chief counsel of the Innocence Project of Texas, said that cases of wrongful conviction where DNA was available were drying up.  His comments were echoed by the California Innocence Project’s Justin Brooks, who said that “we’re seeing very few DNA cases where testing is a possibility.”

     Barry Scheck felt differently.  Co-founder of the famous Innocence Project, the nation’s first organization of its kind, he estimated that there were enough wrongful convictions with DNA available to support another ten years’ work.  Scheck, whose group shunts off non-DNA cases to state and local projects, suggested that the only reason why things might slow down is that advocates “are not looking hard enough.”

     Well, that’s easy for him to say.  Established in 1992, the Innocence Project was for many years the only place to whom the wrongfully convicted (and scores of not-so-wrongfully convicted) could turn for relief.  Although other projects are now helping spread the burden, the original group’s rock-star status assures it an unending supply of requests, reportedly to the tune of 3,000 a year.  That keeps six full-time lawyers and a retinue of interns from Cardozo School of Law, where the Innocence Project is housed, extremely busy.

     Well, did DNA exonerations slow down?  According to an informal review of data published by the Innocence Project, the short answer is not yet.  Since the exoneration of Gary Dotson in 1989, innocence projects have exonerated 266 persons through DNA, averaging 18 per year between 2007-10.  (There has been one exoneration so far in 2011.)  As one might expect, most of these cases involve crimes that occurred while DNA was in its infancy, with seventy percent of the convictions preceding 1990.  Still, there is no indication that the end is in sight.  Here are the three most recent DNA exonerations:

  • In January 2011 Texas inmate Cornelius Dupree was released after serving 30 years for a rape/robbery.  Dupree and a codefendant, whose release is pending, were mistakenly identified by the female victim from photo lineups.  Her male companion couldn’t identify either subject from photos but did so later, in court.  According to the Innocence Project only two other exonerated persons have served more time: James Bain, a Florida inmate who served 35 years, and Lawrence McKinney, a Tennessee inmate who was locked up 31 years.  This case was handled by the Innocence Project.
     
  • In December 2010 Arizona inmate John Watkins was exonerated after serving six years for a 2004 rape.   Misidentified by the victim from a suggestive photo lineup (Watkins was the only whose shirt was the right color) he accepted a plea deal to minimize the severity of his sentence.  This case was handled by the Arizona Justice Project.
     
  • In May 2010 Ohio inmate Raymond Towler was exonerated of child rape after serving 28½ years.  He was originally identified from photo lineups by the 11-year old victim, her 12-year old companion and two persons who said they had seen him in the area.   A hair believed to be “Negro” was the only physical evidence.  Towler and several alibi witnesses swore that he was home at the time but they were disbelieved.   This case was handled by the Ohio Innocence Project.

     It’s inevitable that sooner or later the number of miscarriages of justice where DNA is both available and of probative value will drop off.  Many local projects have already exhausted their supply of such cases.  In any event, DNA is a tool, not a solution.  Biological evidence that links a crime to its perpetrator is present in only a small proportion of cases; according to the Innocence Project, DNA can help in no more than ten percent.  Yes, it’s conceptually simple to apply, and yes, the results can be compelling.  But focusing just on DNA, as the Innocence Project does, leaves a tremendous gap.

Click here for the complete collection of wrongful conviction essays

     Exoneration is a tough slog when DNA is available.  As we pointed out in “What if There’s No DNA?” it’s doubly so in its absence.  Reconstructing the past with witnesses and circumstantial evidence is difficult, and particularly after a conviction.  Police lose interest – after all, they’ve done their job.  Most accused also lack the resources to hire lawyers and investigators.  The ability to gather enough facts to make a persuasive claim of innocence diminishes over time as memories fade and people disappear.  And that’s to say nothing of the objections that prosecutors are sure to advance when a would-be exoneree seeks a habeas hearing.  (For an account of a still-ongoing ordeal see “Playing With Fire.”  For another, which is thankfully done, see “Never Say Die.”)

     Just a few days ago the ranks of projects that take on non-DNA cases were increased by one with the launching of Seton Hall Law School’s the “Last Resort Exoneration Project.”  Luis Rojas, a living example of a non-DNA exoneration, spoke at the kick-off event.  A New York City resident, he had served eight years of a life sentence for murder.  His conviction was based on the mistaken testimony of eyewitnesses who said he furnished the gun that another teen used in a killing.  Rojas, then 18, was a mild-mannered youth with absolutely no criminal record.  It took countless hours of work by a dedicated team of volunteers to win him a new trial, where he was acquitted. 

     Rojas was doubly lucky.  He would probably still be rotting away in prison except that his situation drew the attention of the new project’s director, Lesley Risinger.  She passed on the information to her mother, a lawyer, who got the ball rolling.

     Debunking witnesses isn’t the only route for non-DNA exonerations.  Physical evidence has often been inappropriately used to convict.  In “One Size Doesn’t Fit All” we discussed the misuse of Shaken Baby Syndrome.  Other forensic techniques that have come under attack include blood spatter, bite marks, dog scent, and, as came to light through the wrongful execution of Cameron Willingham, arson evidence.

     Innocence projects can help correct injustices, yet they must fight the good fight from the outside.  Official initiatives that proactively seek to identify and address miscarriages of justice, such as the Dallas D.A.’s Conviction Integrity Unit, are all too rare.  Yet every wrongful conviction begins with a mistaken arrest.  It also hardly needs to be pointed out, as we did in “It’s Good to be Rich,” that innocent persons who lack substantial resources are at a particular disadvantage.  What’s needed is a national initiative by criminal justice agencies to address the underlying causes of wrongful conviction and devise solutions.  Really, until police and prosecutors are onboard, everything else is a band-aid.

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The Tip of the Iceberg     Playing With Fire     What if There’s No DNA?     Never Say Die

One Size Doesn’t Fit All     NAS to CSI     Would You Bet     DOJ to Texas     Baby Steps

RELATED ARTICLES AND REPORTS

“Beyond DNA” by the Dallas Observer     Illinois study on exonerations     Exonerating without DNA

 


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