An Update on the Legal Battle

It's been a long time since I've posted here. At the time of my last post we were facing a deadline for filing a 35(c) motion, which in Colorado is a motion for post-conviction relief. In it we asked for a hearing where we can raise issues of unfairness in Todd's trial that have not been previously addressed. I'm happy to report that we will receive a 35(c) hearing. It's not yet scheduled, but we're hopeful that it will occur in the next few months.


Presiding at the hearing is Senior Judge John McMullen from Denver, who has been assigned to the case after a ruling that none of the judges in our local Colorado Springs district could hear the case.

Central to the hearing will be medical evidence provided by state "experts" that was misleading, inaccurate, and went unchallenged in the trial.

The prosecution's theory of the crime was that Todd, unseen by any of the six witnesses, stabbed the victim in the heart (a horrific wound that punctured both ventricles). And then the victim went on to a fierce fight with another person--a fight that he entered energetically and that was seen by all witnesses.

State medical witnesses testified that the victim's seemingly miraculous ability to engage in a fierce fight with his heart slashed resulted from a medical condition called "cardiac tamponade."

There are two problems with this theory that never came out at the trial. First, there is much physical evidence indicating that cardiac tamponade did NOT occur. Second, cardiac tamponade is itself a serious condition that leads quickly to death.

We'll keep you updated as events unfold.

In the meantime, please take a look at Todd's latest blog. He along with others is blogging for the National Coalition for Criminal Justice Reform, a newly founded organization chartered in Idaho by the national network of activists that came together for last summer's Freedom March to raise awareness for wrongful convictions.

New Book on False Confessions

John Maki from the Northwestern Center on Wrongful Convictions writes that Rob Warden and Steve Drizin's new book, True Stories of False Confessions, contains 39 compelling accounts of false confessions—articles adapted from newspapers, magazines, and books by distinguished writers, including Sydney Schanberg, Alex Kotlowitz, and John Grisham.

The book includes the account of Chris Ochoa, who spent nearly 12 years in prison for a crime he didn't commit. Chris talks about how interrogators extracted a false confession from him in this video:



Of the book, John Maki writes, "True Stories of False Confessions shows that these cases are not aberrations, but rather evidence of flaws in the criminal justice system that demand reform. To this end, Warden and Drizin organize the stories of false confessions into categories, such as brainwashing, child abuse, and fabrication, and include a postscript for each case, providing legal updates and additional information."

The royalties from the book will go to the Center on Wrongful Convictions.

True Stories of False Confessions is available at Amazon. Learn more about True Stories of False Confessions at http://falseconfessionsbook.com/.

Bad Science + Amateur Expert + Snitch = Execution of an Innocent Man

In this week's New Yorker David Grann chronicles the tragic story of Cameron Todd Willingham. Willingham lost his children in house fire in Corsicana, Texas. A local fire inspector called it arson. A jailhouse snitch said that Willingham confessed. A two-day trial followed by a four hour deliberation sealed Willingham's fate. He was executed in 2004.

Unfortunately for Willingham, a re-analysis of the fire, done by a real scientist with a real degree, Gerald Hurst,--an analysis that revealed the fire was not the result of arson--was ignored by those in Texas who were hell-bent on injecting sodium thiopental, pancuronium bromide, and potassium chloride into Willingham's veins.

What runs through the mind of an innocent man facing imminent execution? Willingham's last communications with his parents tell us. When he received word that Governor Rick Perry had denied a last-minute stay of execution, he told his mother, "Don't be sad, Momma. In fifty-five minutes, I'm a free man. I'm going home to see my kids." He told them, "Please don't ever stop trying to vindicate me."

Willingham's heart stopped beating on February 17, 2004, at 6:20 P.M. His death certificate listed the cause of death as "homicide." Who murdered him is clear. They remain at large.

Victims of the State

The website Victims of the State has reviewed Todd's case and provided a summary of it. Dan Rastatter, who produced the website and wrote the summary of Todd's case has collected well over a thousand cases nationwide that reveal a widespread disregard for truth seeking in our criminal justice system.

When is science not science?

Anderson Cooper reports on CNN that "Of the 241 wrongful conviction cases the Innocence Project has helped to overturn, 50 percent of them hinged on forensic science problems."

For us that's not surprising, because in our case evidence was significantly mishandled. Although The trial judge concluded that the State had "dropped the ball," the evidence--which had been altered while in the state's possession--was still deemed admissible. Over a year after the trial, the Colorado State Attorney General's office finally dropped its claim that the State was not responsible.

In May, we filed an allegation of negligence or misconduct in the handling of the evidence. So far none of the oversight agencies have responded to the allegation.

It seems that evidence and the search for truth is not an integral part of our criminal justice system. Perhaps too many in our criminal justice system share the opinion of Supreme Court Justices Scalia and Thomas, who in a recent opinion, according the NY Times, "suggested there was no constitutional problem with executing a man who could prove he was innocent."

Prison Reform, Education, and Healthcare

Nicholas Kristof makes the connection today in the NY Times between criminal justice reform and health and education. He writes, "It’s time for a fundamental re-evaluation of the criminal justice system, as legislation sponsored by Senator Jim Webb has called for, so that we’re no longer squandering money that would be far better spent on education or health."

Bottom line: "Opponents of universal health care and early childhood education say we can’t afford them. Granted, deficits are a real constraint and we can’t do everything, and prison reform won’t come near to fully financing health care reform. Still, would we rather use scarce resources to educate children and heal the sick, or to imprison people because they used drugs or stole a pair of socks? "

What do these priorities say about us?

Unsustainable Incarceration

"Put them in prison and make them worse criminals, or put them in rehab, possibly make them better, and save some money. Sounds like a no-brainer." These are the words of NY Times columnist Charles M. Blow. In today's Times, he contrasts the staggering cost of ineffectively incarcerating substance abusers with the savings and effectiveness that can be achieved through alternatives to incarceration. In a time of economic crisis the importance of spending public treasure wisely grows. It remains to be seen if the wisdom of policy makers will grow to meet this challenge.

Folsom Prison Blues

We often hear it said: "If you want to see the future, look at California." If that's true, the future for prisons is bleak. Today's edition of All Things Considered chronicles the descent of California's Folsom Prison from the pinnacle of effective to an abject failure. Laura Sullivan reports that in 1968 almost every Folsom inmate "was in school or learning a professional trade. The cost of housing them barely registered on the state budget. And when these men walked out of Folsom free, the majority of them never returned to prison."

But now:

• It now houses 4,427--more than twice the 1800 it housed in 1968.
• It's once-vaunted education and work programs have been cut to just a few classes, with waiting lists more than 1,000 inmates long.
• Officers are on furlough.
• Its medical facility is under federal receivership.
• And like every other prison in the state, 75 percent of the inmates who are released from Folsom today will be back behind bars within three years.

So what happened? Simple. Californians decided to "get tough" rather than "get smart" on crime. Thanks to harsh sentencing laws, habitual offender policies, and the war on drugs, California's prison population exploded from 20,000 to 167,000.

The result: Californians today are less safe and facing insolvency. If you are interested in criminal justice reform, you must listen to this report.

Procedure Over Innocence

Jeffery Deskovic, a strong advocate for the wrongly convicted and a DNA exoneree spoke recently with Amy Goodman on "Democracy Now" about the nomination of Sonia Sotomayor and how politics interferes with a discussion we need to have on how judges and courts handle post-conviction claims of innocence. Please watch this brief interview:

Jeffrey Deskovic Takes on Judge Sonia Sotomayor

Jeff Deskovic's voice grows louder and carries further as he rails against the Supreme Court nomination of Sonia Sotomayor. You have admit, his anger at her nomination is understandable. He spent an additional six years in prison for a crime he didn't commit because Sotomayor chose procedure over justice.

Many pundits will tell you that Sotomayor's approval is likely, and that Deskovic's campaign against her is quixotic. But he has a point. And it's high time for a national discussion on the merits of having judges who seek substantive justice rather than merely enforce bureaucratic procedure.

Take a look at Deskovic making his point on this video:


Jeffry Deskovic is first and foremost a friend and advocate for the wrongly convicted. His Face Book group is at http://www.facebook.com/group.php?gid=213251725203&ref=ts&__a=1.

Brook Shields performing as Sunny Jacobs, one of "The Exonerated"

At the Innocence Project Celebration of Freedom & Justice, Brooke Shields performed the Sunny Jacobs story from the award-winning Broadway play "The Exonerated":


The take-away: "Imagine everything you did between the years of 1976 and 1992. Now remove all of it. Those 16 years were taken away from Sunny Jacobs, convicted and sentenced to death for a crime she did not commit......it could happen just as easily to you."

Brooke Shield's reading took place on May 6, 2009 at the Innocence Project's Celebration of Freedom and Justice. Here's CNN's coverage:

Michael Jackson and Criminal Justice Reform

Michael Jackson--misunderstood and now mourned--was never afraid to speak out with music that captured a generation. Here in "They Don't Care About Us" he speaks for the too-often voiceless. You can speak for the voiceless at tomorrow's Freedom Marches. See http://freedommarchusa.org/ for links to a march you might attend. I'll be leading the march tomorrow in Denver. Details for it are available at http://bearingfalsewitness.com/fm.

Now, remember Michael Jackson:



Here are the lyrics:

Skin head, dead head
Everybody gone bad
Situation, aggravation
Everybody allegation
In the suite, on the news
Everybody dog food
Bang bang, shot dead
Everybody's gone mad

All I wanna say is that
They don't really care about us
All I wanna say is that
They don't really care about us

Beat me, hate me
You can never break me
Will me, thrill me
You can never kill me
Jew me, Sue me
Everybody do me
Kick me, Kike me
Don't you black or white me

All I wanna say is that
They don't really care about us
All I wanna say is that
They don't really care about us

Tell me what has become of my life
I have a wife and two children who love me
I am the victim of police brutality, now
I'm tired of bein' the victim of hate
You're rapin' me of my pride
Oh, for God's sake
I look to heaven to fulfill its prophecy...
Set me free

Skin head, dead head
Everybody gone bad
trepidation, speculation
Everybody allegation
In the suite, on the news
Everybody dog food
black man, black mail
Throw your brother in jail

All I wanna say is that
They don't really care about us
All I wanna say is that
They don't really care about us

Tell me what has become of my rights
Am I invisible because you ignore me?
Your proclamation promised me free liberty, now
I'm tired of bein' the victim of shame
They're throwing me in a class with a bad name
I can't believe this is the land from which I came
You know I do really hate to say it
The government don't wanna see
But if Roosevelt was livin'
He wouldn't let this be, no, no

Skin head, dead head
Everybody gone bad
Situation, speculation
Everybody litigation
Beat me, bash me
You can never trash me
Hit me, kick me
You can never get me

All I wanna say is that
They don't really care about us
All I wanna say is that
They don't really care about us

Some things in life they just don't wanna see
But if Martin Luther was livin'
He wouldn't let this be

Skin head, dead head
Everybody gone bad
Situation, segregation
Everybody allegation
In the suite, on the news
Everybody dog food
Kick me, Kike me
Don't you wrong or right me

All I wanna say is that
They don't really care about us
All I wanna say is that
They don't really care about us

All I wanna say is that
They don't really care about us
All I wanna say is that
They don't really care about us

All I wanna say is that
They don't really care about us
All I wanna say is that
They don't really care about us

Justice and Junk Science

A common thread in many convictions is the use of discredited junk science. Here's an example from Colorado Springs: the tragic case of Deborah Wadle.

After two trials—the first resulted in a hung jury—Wadle was convicted of child abuse resulting in death. That conviction was overturned because of juror misconduct.

The evidence used to convict Wadle was a diagnosis of Shaken Baby Syndrome (SBS). SBS has joined comparative lead bullet analysis as discredited junk science. In the forthcoming Washington Law Review, Deborah Tuerkheimer writes:

Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling.

New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. Most recently, after a seventeen-month investigation costing $8.3 million, a Canadian commission recommended that all SBS cases be reviewed.

Turkheimer goes on to point out that despite new research, prosecutors in the United States continue to rely upon this discredited science, and US courts continue to affirm convictions gained through its use.

For Deborah Wadle, the discrediting of SBS comes too late. After her conviction was vacated, the DA continued to pursue her. Rather than face yet another trial, she accepted an Alford plea to a reduced charge of criminally negligent homicide, but she continues to maintain her innocence.

As Keith Findley, a clinical professor of law and co-director of the Wisconsin Innocence Project has said, “The system is sending people to prison based on findings of beyond a reasonable doubt when in many of the cases the only evidence is medical evidence on which many medical experts…have a substantial doubt. No critic of SBS theory wants anyone to get away with child abuse, but when the diagnosis becomes the entire basis for the prosecution, that’s problematic.”

I know of no plans by our DA to review the cases in Colorado Springs where SBS was central to gaining convictions. Those problematic convictions, like the ones that have relied on comparative lead bullet analysis, remain hidden from view and beyond scrutiny.

Seeking such scrutiny and the pursuit of Truth and Justice are goals of this week's Freedom Marches. Visit the national website supporting these events at http://freedommarchusa.org. The website for Colorado's event is at http://bearingfalsewitness.com/fm.

No Right to DNA Testing

The U.S. Supreme Court announced its decision today in the case of William Osborne, an Alaska man convicted of assault, kidnapping and sexual assault in 1993. All parties had agreed that DNA testing, which Osborne was willing to fund would unequivocally determine his guilt or innocence. The court ruled that Osborne had no constitutional right to have such testing done--even at his own expense. Whether the state of Alaska will eventually permit such testing is unknown at this time, but the state is under no obligation to permit it.

According to the Innocence Project, the case will have limited impact because most states, unlike Alaska, have state statutes providing for such testing.

The high court's ruling, however, raises a more fundamental question: why would such testing not be in the interest of justice? Don't we as citizens have an interest in assuring that perpetrators of crimes are caught? Doesn't Alaska's refusal to submit the DNA to testing cause us to question the state's commitment to truth-seeking? And what of the five justices on the Supreme Court who signed off on this opinion? What is their commitment to truth-seeking?

If you think that the court's decision is flawed, here's your chance to raise your voice for change. Participate in the June 27 Freedom March. Details for the Colorado event are at http://bearingfalsewitness.com/fm. If you reside in another state, check out the national web site at http://FreedomMarchUSA.org for links to a location near you.

Why March for the Wrongly Convicted on 27 June

In states across the nation, people will march to raise awareness for wrongful convicitons. Here are some thoughts from Joel, Todd's younger brother, as Joel reflects on the upcoming march and what it means to someone with a loved one wrongly incarcerated. Joel has visited Todd in prison well over 200 times. He speaks with Todd daily, and they write each other regularly.

A little over two years ago (March 26, 2007) the following passage appeared in a letter my brother sent to me from prison, “These words appear on the page of their own volition, with no apparent means of scribing, written, as they are, by a ghost. What else do we call a consciousness that continues on after it has been separated from the life that once contained it?”

In a way, I have become a medium, communicating with a ghost, as it were, at regular intervals. Like many ghosts, my ghost is confined to a limited space - trapped in a purgatorial state, existing somewhere between this world and the next. I see my ghost twice a week, just outside a small ghost town near Pueblo, in a small grey room, in a dull grey building designated as a warehouse for uncouth spirits. Some of the ghosts there will get a chance at what all ghosts’ desire – a chance at resurrection. Others won’t.

Once a family member becomes a ghost, the irreconcilability of their still vibrant soul restricted to a dreadfully limited existence forces the medium to become a voice for their spirit. You realize that your actions become theirs, and your ability to advocate for their needs is your ghost’s only means of haunting the world from which they have been forcibly detached. To that end, I’m excited about being able to take part in the freedom march next week. Anytime I feel like I’m able to support my brother helps me to feel a little better about the current position we find ourselves in. Thanks ahead of time for anyone who is able to march with us. We’ll be marching for a population that can’t, the ghosts that exist just outside our cities and rarely get the chance to have their voices heard from within the confinement of purgatory.

Remember to check out the details on the Freedom March nationally at http://freedommarchusa.org/and in Colorado at http://bearingfalsewitness.com/fm.

Colorado Inmate awarded $1.35 Million

Colorado's prison system gained national attention recently--unfavorable attention. The 11 June New York Times reported a 1.35 million dollar award to a female inmate who'd been raped by a guard at the Denver Women's Correctional Facility .

A 12 June report in the Denver Post provided more information. It notes that between 2005 and 2007, 62 cases of sexual misconduct by DOC personnel were substantiated and resulted in firings. Presiding Federal Judge David Ebel said that sexual abuse of inmates "remains distressingly common in Colorado prisons."

The details are gruesome. Don't read what follows if you're subject to nightmares. The Post details what the guard, LeShawn Terrell, did to the inmate this way:

Court records say that on Mother's Day 2006, Terrell approached the inmate during her shift in the prison kitchen and told her that in exchange for sex, he would "take care of her."

After the first encounter, Terrell expected her to perform sex acts with him almost every shift, the documents say. In October 2006, the woman refused him. Terrell got angry, raped the prisoner and left her bleeding on the floor of the bakery cooler, court records show.

"For nearly two years following the rape, (she) suffered pain and bleeding when she defecated," Ebel wrote in his decision, handed down Wednesday. "She repeatedly attempted to get help. . . . Rather than doing an examination, the (DOC) medical staff told (her) to use stool softeners, Milk of Magnesia, or hemorrhoid cream."

The inmate had surgery for her injuries after she filed her lawsuit.

What's truly amazing is that the Denver DA cut a deal with the guard, allowed him to plead guilty to a misdemeanor for which he received a 60-day sentence and 5 years probation.

Judge Ebel had a few words for the Denver DA as well: "This court is appalled that despite CDOC's 'zero tolerance' and 'aggressive prosecution' policy — and despite the horrific violence of the Oct. 7, 2006, rape — the Denver District Attorney permitted Terrell to plead to a Class 1 misdemeanor offense that carried a 60-day term of imprisonment."

Before I push the "publish" button on this post, I want readers to know that my personal contact with Colorado DOC personnel has been fairly extensive, and I've found them generally to be professional and decent as they go about their duties. And I hate to see them smeared by the actions of those who haven't upheld the standards expected.

The way for DOC personnel to avoid such smearing is to enforce standards within their sphere of influence. That means watching for the red flags of abuse by co-workers, and informing supervisors when you suspect someone of abuse. As someone who's spent 38 years in the Air Force, I know how easily personal loyalties to co-workers can lead to tolerating lapses in the performance of co-workers. That's why cadets at the Air Force Academy, where I teach, must live by an honor code that prohibits toleration of those who are unwilling to uphold standards.

In the case of the rape victim at DWCF, someone had to have seen the warning signs, someone had to have decided to look the other way, to not even perform a physical examination. There had to have been others who tolerated the abuse, and they should be ashamed.

Factual Innocence, Jeffery Deskovic, Sonia Sotomayor, and Marching for Freedom

Much has been made of Supreme Court nominee Sonia Sotomayor's "wise Latina" comment. Unfortunately, wisdom doesn't come easily when judges narrow their field of vision to technicalities of law. DNA exoneree Jeffery Deskovic discovered as much when his case came up in Sotomayor's court nine years ago. The New York Times reports that Sotomayor denied a request from Deskovic's attorneys because they'd missed a filing deadline by four days. The attorneys said they were misinformed. Not Deskovic's fault. But thanks, in part, to Sotomayor's ruling, Deskovic's screams of innocence were silenced, and he spent an additional six years in prison for a crime we know without a doubt that he did not commit.

For Deskovic, the nomination of Sotomayor has revived bitter memories of the sixteen years taken from him by an unjust verdict. “To hear that a judge who put procedure over innocence could be moving to a higher court is very upsetting to me,” he said.

Deskovic may have more to say when he speaks at New York's Freedom March to raise awareness for wrongful convictions. The march is a coordinated national event will occur on Saturday morning, June 27, in cities across the nation. New York's event will be on the steps of the City Hall in New York City.

Colorado, too, will join a growing list of states with its own Freedom March on the 27th. Details for the Colorado event are available at http://bearingfalsewitness.com/fm.

Other states participating include California, Texas, Arizona, Idaho, Oklahoma, Michigan, South Carolina, New Jersey, Florida, Arkansas, and Pennsylvania. And more are on the way.

Be sure to visit http://freedommarchusa.org/ to see if your state has an event, and then join with others to raise awareness for wrongful convictions.

Your voice combined with others can bring some much-needed wisdom to a judicial review process that, as Jeffery Deskovic discovered, and as Sonia Sotomayor must know, too often engages in myopic examination of technicalities at the expense of justice.

Myths and Facts about Wrongful Convictions and Claims of Innocence

Myths and Facts from http://picturetheinnocent.com/:

1. Myth: Wrongful convictions are rare.
   Fact: Modern DNA testing has demonstrated that wrongful convictions are far more common than previously thought. Analysis of exoneration rates for murders and sexual assault cases in the United States where DNA material was available indicates that at least 3.3% of those convicted in such crimes are factually innocent. No one knows how much higher the percentage of wrongful convictions for lesser crimes may be. If the ratio of wrongful convictions is 3.3% across the entire spectrum of convictions, then over 79,000 people are imprisoned for crimes they did not commit. The number could be far higher, especially if one assumes that greater effort is expended to ensure accuracy in cases of murder and sexual assault.
   
2. Myth: Inmates always say they're innocent.
   Fact: Not true. Although inmates may claim mitigating circumstance, or that the punishment they've received is too harsh for the crime, the vast majority realize that false claims of innocence are unwise. After conviction judges are likely to impose harsher sentences on those who refuse to admit to the crime and show remorse. Refusal of inmates to admit to a crime can have adverse consequences during incarceration, to include being barred from various prison programs, receiving "good time," and the denial of parole.
   
3. Myth: Safeguards against wrongful convictions will permit the guilty to go free.
   Fact: Policies and procedures that reduce the chances of a wrongful conviction increase the probability that the actual perpetrator will be identified and prosecuted. Every time the wrong person is convicted of a crime, the guilty person goes free and continues to endanger our communities.
   
4. Myth: If someone loses an appeal, they must be guilty.
   Fact: The appellate process doesn't consider innocence. Appeals are a review of the trial procedures used to convict a person. Often those convicted at trial are subsequently denied forensic testing that could prove their innocence.
   
5. Myth: DNA testing will solve the problem of wrongful convictions.Fact: Most crimes do not involve DNA evidence. Often, DNA evidence is lost, destroyed, or damaged. However, the causes of wrongful conviction--flawed eyewitness identification, forensic deficiencies, snitch testimony, bad lawyering, prosecutorial misconduct--are present in many such cases. Until policy changes address the causes of wrongful convictions, many more people will be wrongfully convicted.
   
6. Myth: Exoneration is the path to riches.
   Fact: Large settlements after exonerations are rare. Many states have no standard for setting compensation levels. Lengthy delays in receiving any compensation are the rule. Exonerees generally don't qualify for the kinds of transition help received by those who released after sentence completion. Instead, they are sent home with little more than a weak apology--even after spending decades in prison.

Freely Working, LLC, Forging Opportunity for Formerly Incarcerated in Colorado Springs

A couple weeks ago at change.org, Matt Kelley reported comments made by U.S. Attorney Patrick Fitzgerald to business leaders at a Chicago luncheon. Fitzgerald exhorted them to hire felons. According to Kelley, Fitzgerald maintains that "only by offering parolees with options for a post-prison life can we begin to ease the crush of our overcrowded cells and our overheated corrections budgets." Kelley's report went on,

While there are felons who don't want to return to the gang life, Fitzgerald said, they're released back into a neighborhood lacking infrastructure and support. They see no other opportunities, he said. "When they got there, they tried to open the door, and it was locked," he said.

It's a message big business needs to hear. And big business might take its cue from a new small company in Colorado Springs, Freely Working, LLC., that offers competitive rates for all types of cleanup and hauling. Here's how this new small business describes itself:

Our company is based on the belief that honest employment will provide the support needed to prevent recidivism. We are dedicated to the idea that we can and will reenter society as working and contributing members. Our customers' needs are of the utmost importance. Our entire team is committed to meeting those needs. As a result, a high percentage of our business is from repeat customers and referrals.

We are people who have been incarcerated. We offer safe, secure and premier service. We transport our workers to and from your site, guaranteeing that they will arrive on time, ready to work. We welcome the opportunity to earn your trust and deliver you the best service in the industry.

The need for the services provided by this idealistic young company is skyrocketing as our economic downturn continues, as homes and commercial properties fall into default and suffer the seemingly inevitable decline that accompanies vacancy. Absent landlords and managers of foreclosed properties who retain the services of Freely Working preserve the value of their properties and the neighborhoods around them while unlocking the door of opportunity for those working to repair broken lives.

Michael Vick: Crime and Punishment in the NFL

Frank Deford considered Michael Vick's future in the NFL today on NPR's morning edition. Although Vick is an extraordinarily talented professional athlete, he faces an uncertain future, much like others just released from prison.

Follow the link to hear Deford's comments. Here's a text of what he has to say:

When someone gets out of jail we always say he has "paid his debt to society." It's sort of an odd expression, isn't it? In jail you've simply been removed from society. It's when you get out that the bill comes due, when you're not supposed to engage again in whatever it was that got you into jail in the first place. If so, that's when society profits.

Well, it's a sure bet that now that Michael Vick is out of the slammer, he will never again get involved in dogfighting. The question is, instead, what will we allow him to do? Or specifically, will we allow him to play football again, the one thing he did
very well indeed?

Perhaps not a single team in the National Football League will want him. Vick would be the cynosure of hatred, for he is considered to be despicable. Heinous, wicked ... can you live with that, too? Inhumane, which may be the worst thing a human can be called.

But before any team may risk all the vitriol and agitation that bringing Vick to camp would produce, first the commissioner of the NFL, Roger Goodell, must end Vick's indefinite suspension — a decision that Goodell will make after July 20, when society's criminal sentence for Vick officially ends. The key, it seems, is for the commissioner to meet with Vick and decide if he is properly remorseful.

That strikes me as a perfectly pointless exercise, a show trial. Of course Vick will say that he's remorseful. And so what? He's already lied to Goodell's face. Why possibly believe him now? Make the decision, Mr. Commissioner, without going through the sham of a heart-to-heart, face-to-face Park Avenue photo op.

Many people say that even though Vick has been incarcerated, that he's bankrupt and disgraced, he also deserves further internal league punishment, because he has dishonored the "privilege" of playing in the NFL. Oh, please. Athletics is the prime
meritocracy. If you're good enough, if you play by the rules of the game, you earn a place in the game. It's nonsense to act as if Commissioner Goodell should be some pigskin St. Peter at the gridiron gates.

If anything, I think a better argument can be made that Michael Vick's very visibility is for the good. So let him play. Did you know, for example, that since he was indicted in 2007, twenty-three tougher state and federal laws dealing with dogfighting have either been enacted or strengthened?

Vick is a role model. I don't mean that facetiously. He is a role model for having it all and throwing it all away through stupidity, arrogance and sheer evil. If he gets to step on the field, he will remind us of how young athletes can so easily fall from grace. He will remind us of shame and hubris. He will remind us of cruelty to animals. He will be paying his debt to society by helping us remember what we should not
forget.

What may be lost in Deford's comments is that before Vick can repay his debt to society by becoming again a productive participant in it, the NFL as a community will have to set aside whatever residual anger or fear it has, and permit him to do so. Just as we need to permit others who complete their sentences to rejoin our own communities.

200th Execution in Texas under Gov Rick Perry

A short time ago, the State of Texas killed Terry Lee Hankins. The crime attributed to him was heinous and many will say his end was deserved. I know nothing of the details of his case, what, if any defense he presented. But I ponder tonight the number: 200. Two hundred people put to death under Rick Perry, killed by a system that too often, we know, gets it wrong. As Dallas DA Craig Watkins said last week on Larry King Live, "only the naive would think we haven't put an innocent man to death."

And my thoughts go to Governor Rick Perry's children and grandchildren. What legacy will they carry? The author of The Scarlet Letter, Nathaniel Hawthorne, lived in Salem, Massachusetts, the descendant of William Hathorne, a stern magistrate who ordered the public whipping of Quakers who dared intrude on Puritan turf. William's son, John, was a judge who presided over the Salem witch trials, which resulted in the executions of 20 men and women.

Nathaniel Hawthorne struggled his whole life to come to an understanding of his family's legacy. He changed the spelling of his surname, adding a 'w' to it. An act of self-assertion, or one of inherited shame?

Tim Kennedy Home on Bond

Friday brought release from prison for Tim Kennedy. Colorado Springs TV Station KKTV--which has given significant coverage to the Kennedy story this week--offers this video of his release:


Kennedy's story has gained national notice within the Innocence Movement, because his original conviction included the FBI's use of comparative bullet lead analysis (CBLA), a discredited technique discontinued in 2005, which was used to trace a bullet from the crime scene to a box of bullets in his possession.

Learn more about discredited comparative bullet lead analysis from this CBS 60 Minutes video:



To my knowledge, the DA's Office has not released any information on other El Paso County cases that relied upon this discredited technique or the role it played in other convictions.

The DA and the Exoneree

Here's Larry King's interview with the most recent Dallas exoneree Jerry Lee Evans. Towards the end of the video, King speaks with Dallas DA Craig Watkins. His smart on crime approach is the gold standard for American justice.

El Paso County DAs Under Investigation

A May 5 column by the Denver Post's Susan Greene came to my attention today. It's lead is:

The state is investigating El Paso County DAs for withholding evidence in the case against Tim Kennedy.

Greene goes on to say, "According to people familiar with the probe, the state Supreme Court is looking at why prosecutors sat on a letter that could have raised doubts about Kennedy's guilt when they tried him for murder."

In yesterday's blog entry I mentioned that we've not heard if the DA's office was considering disciplinary action against the prosecutor responsible for withholding the evidence in questions: a letter from an alternate suspect that Judge Kane had previously ruled “contains language that could be interpreted as solicitation of perjury” as well as “an admission to involvement in the murders."

It turns out that the prosecutor who withheld that letter originally and continued to withhold it this past winter is the same person who continues as Kennedy's lead prosecutor.

So why does the District Attorney continue to assign Kennedy's prosecution to the same person who's already under an ethics investigation for misconduct in prosecuting Kennedy?

Wouldn't common sense call for assigning the prosecution of Kennedy to someone without a personal interest in the case's outcome? Why not reassign the prosecution to someone who can pursue truth without being encumbered by an understandable desire to save face? Can we trust the person who withheld such crucial evidence to pursue truth in the upcoming retrial of Kennedy?

District Attorney Dan May should explain his answers to these questions.

Tim Kennedy: A Dream Deferred

Tim Kennedy enters the courtroom, shackled in orange prison garb. His eyes are bight, he controls a hopeful smile. He’s already told interviewers that whatever happens in today’s hearing, he’ll be happy. Happy because he’s waited 14 years for a second chance to show his innocence. There’s hope that this morning’s hearing will see his dream of exoneration become reality, that his prosecutor, Dan Zook, will acknowledge that “mistakes were made,” that charges will be dropped, that Kennedy will walk free.

As I sat in the courtroom, TV cameras rolled, and lines from the poet Langston Hughes played in my head.

What happens to a dream deferred?

Does it dry up
like a raisin
in the sun?
Or fester like a sore--
And then run?
Does it stink like
rotten meat?
Or crust and sugar over--
like a syrupy
sweet?

Maybe it just sags
like a heavy load.

Kennedy’s dream was deferred.

John Dicke, Kennedy’s attorney, reminded the court that assumptions, such as the soundness of now-discredited bullet-lead analysis, used to justify Kennedy’s original trial, were no longer valid. He pointed to the newly-brought-to-light evidence previously described by presiding Judge Thomas Kane to be “of such character as to probably bring an acquittal.” And Dicke recounted Kennedy’s reputation as a trustworthy and well-behaved inmate, as he’s waited all these years for exoneration.

But clearly, Dicke already knew that the DA would not drop the case. Otherwise, Dicke would not have had to proceed with an argument for setting bail at a relatively low $60,000.

Prosecutor Dan Zook’s insistence on retrying Kennedy centered upon character assassination. Kennedy, according to Zook was an unemployed drug dealer strung out on meth, though the record shows that Kennedy had no previous criminal record. Dicke rebutted, saying that Kennedy had suffered from an addiction to prescription painkillers. Zook only indirectly addressed the issue of a letter from an alternate suspect that Judge Kane had previously ruled “contains language that could be interpreted as solicitation of perjury” as well as “an admission to involvement in the murders." This letter had been withheld by the prosecution at Kennedy’s original trial.

So far, the DA’s office has been unwilling to reveal whether the failure to turn over the letter might result in any disciplinary action against those responsible for the failure. Today’s hearing suggests that the DA is uninterested in re-examining the 1991 murders in light of new scientific evidence.

I left the courthouse wondering if the DA’s office was as committed to finding truth as to saving face.

Tim Kennedy and his family left with a dream of exoneration that continues to be deferred.

Thanks for Your Support

Yesterday after my weekly Sunday visit with Todd, I returned to Colorado Springs with the same feelings of despair I frequently have on Sundays. Another week passed that Todd has spent in prison for a crime he didn’t commit. Another week beginning that Todd will spend in prison for a crime he didn’t commit.

Todd and I frequently talk about the people who knowingly and willingly sent him to prison for a crime he didn’t commit. I wonder how they live with themselves. Todd wonders why they chose to pursue him over the more obvious perpetrator of this crime. And we both continue to wonder if there is any hope for justice in a system so entrenched in claiming convictions, no matter how wrong, to reverse itself. We pray there is. So many people who support Todd pray there is.

This week, I should be able to visit Todd both Friday and Sunday as I usually do. (I missed this past Friday because I was too sick to visit.) And, I’ll continue to work with traumatized children Monday-Thursday and Saturdays, as I always do. I fill my life with as much energy and love as I can, and I stay busy helping others when my own life often seems so hopeless. Bill and I continue the fight for Todd; Bill who is much more articulate than I, continues to increase public awareness, and as Todd’s parents we continue Todd’s fight through legal avenues. We so appreciate the wonderful support we’ve had from so many lovely people. In our hearts we know we will succeed even when our heads alert us to the uphill battle we face; your continued support helps us fight the good fight.

Thank you

Misconduct and Wrongful Convictions

This from a report by CBS News on the Texas Tim Cole Compensation Act:

Since 1989 there have been more than 230 DNA exonerations nationwide. In at least 33 of those cases, prosecutorial misconduct was cited as the reason for the wrongful conviction.

What's not mentioned is that these cases went through an appeal process that failed to note the significance of misconduct in contributing to the wrongful conviction.

Tim Cole, was a 25-year-old college student when he was convicted of rape. But DNA testing in 2008 revealed Cole did not commit the rape. And in his final opinion the presiding judge, Charles Baird, concluded Cole was convicted because "evidence was downplayed or deliberately ignored" by prosecutors.

But Cole wasn't in court to hear his name cleared. In 1998, after 13 years in prison, he had an asthma attack in his cell and died.

We don't know whose time Tim Cole served. We don't know how many others may have been victims of the actual perpetrator who was allowed to go free thanks to the faulty procedures employed by his prosecutors.

That's the case when a crime is attributed to the wrong person. Justice loses, and so do the rest of of. Cole's wrongful incarceration in today's dollars cost the people of Texas approximately $390, 000, just for housing. The dollar value, though, is meaningless to any subsequent victims of the actual perpetrator.

To voice your concern about this issue, support the June 27 Freedom March in Denver and in other cities across the nation.

Freedom March 2009 : Denver, Colorado

Bearing False Witness is pleased to be part of a national event to raise awareness for wrongful convictions. Citizens concerned about the flood of wrongful convictions experienced nation-wide are setting aside Saturday morning to raise their voices in events now scheduled for eleven states. For the Colorado event participants will meet at Sonny Lawson Park in Denver and then march 10 blocks to the west steps of the Capitol.

For all the details on this event, go to http://bearingfalsewitness.com/fm. There you will find material about wrongful convictions, avenues for getting involved in the Innocence Movement, and details about the event itself.

You'll also find a flyer for the event. Please download it and use it to make others aware of this opportunity to speak out for justice.

DA Craig Watkins talks about being smart on crime

The video embedded here is very short--only 76 seconds, but Dallas County DA Craig Watkins teaches an invaluable lesson on being smart on crime. His Conviction Integrity Unit is a model for all jurisdictions.

On Tuesday in Colorado Springs, we may gain insight into how concerned local DA Dan May's office views its responsibility to avoid convicting the innocent. May has deferred comment on the recently overturned conviction of Tim Kane, which resulted in part from new DNA evidence, as well as a revelation that May's predecessor withheld exculpatory evidence that pointed to what appears to be a more likely suspect.

Tim Kennedy, Colorado's next DNA Exoneree?

Next Tuesday, May 26, 2009, may be one of the most important days in Tim Kennedy's life. At a hearing in Colorado Springs he'll learn if he'll be retried for a 1991 double-murder. Kennedy has always maintained his innocence, and new evidence backs him up.

For more on Kennedy's case, read http://www.gazette.com/news/kennedy-54467-dna-case.html.

You can also watch a video interview with Kennedy from the Limon Correctional Facility, where continues to serve his sentence.

An Innocence Movement Platform – the Three ‘R’s: Raise, Resolve, and Remedy

Modern science and technology have shaken the strong faith many once placed in the accuracy of judgments made by our criminal justice system. Thanks to DNA analysis of biological evidence, hundreds of convicts have been exonerated—many after spending years on death row. Those who value justice, who demand that the criminal justice system apply the lessons learned from the many cases of wrongful conviction, support policy initiatives that:

1. Raise the accuracy rate in judgments of guilt and innocence.
2. Resolve credible post-conviction claims of innocence.
3. Remedy the tragic impact of wrongful convictions.

Raise the accuracy rate

The Innocence Project has analyzed exonerations to reveal a broad collection of factors that contribute to the likelihood of wrongful convictions. Among them are:

1. Eyewitness Misidentification
2. Unvalidated or Improper Forensic Science
3. False Confessions / Admissions
4. Government Misconduct
5. Informants or Snitches
6. Bad Lawyering

The Innocence Movement supports policy reform that addresses these areas as well as other measures that can improve accuracy in conviction judgments. Reforms are needed in the areas of

1. Juror education and training
2. Plea bargaining
3. Pre-trial incarceration
4. Reducing prosecutorial misconduct—including misconduct deemed to be “harmless” error
5. Restrictions on snitch testimony
6. Increased accountability for ethical breaches
7. Heightened expectations for defense attorneys
8. Reduced case loads for public defenders

Resolve post-conviction claims of innocence

Most are surprised to learn that criminal appeals are not about innocence, but about trial procedure. The Innocence Movement supports reforms that provide venues and policies for resolving claims of innocence. Such venues and policies may include:

1. Conviction Integrity Units such as the one begun by Dallas DA Craig Watkins
2. Innocence Commissions such as those established in several states
3. Appeal process that includes consideration of credible claims of innocence
4. Preservation of physical evidence
5. Testing of biological evidence, such as DNA, to resolve innocence claims
6. Systemic review of convictions obtained through use of discredited techniques such as lead-bullet analysis

Remedy the impact of wrongful convictions

Wrongful convictions have tragic consequences, best avoided by reducing the number of wrongful convictions. However, wrongful convictions do occur and they profoundly affect the wrongly convicted as well as the victim of the crime. Wrongful convictions compound the tragedy of the original crime, leaving the wrongly convicted with greatly diminished potential and leaving the victims of a wrongly prosecuted crime with despair. Policies that can remedy the tragic impact include those that would:

1. Help stakeholders in justice learn what went wrong with the process and how to fix it.
2. Compensate the wrongly convicted.
3. Provide transition assistance to the wrongly convicted.
4. Reopen the investigation of the wrongly prosecuted crime.
5. Counsel victims of the wrongly prosecuted crime.

Because no remedy is available when an innocent person is executed, the Innocence Movement rejects the use of the death penalty, and calls for its elimination. Further, the Innocence Movement supports enlightened approaches to incarceration that nurture genuine rehabilitation and reintegration of productive citizens.

Maintaining the Integrity of Evidence

A recently published report on wrongful convictions by the New York Bar Association's Task Force on Wrongful Convictions examined 53 exonerations and extracted the causes linked to wrongful convictions. The graph below taken from that report shows that half the cases involved problems with forensic evidence.

Among the report's recommendations is that "evidence should be maintained in a way that ensures its integrity and permits ready retrieval."

The failure of authority's to maintain the integrity of crucial evidence is at the heart of our recently submitted Coverdell allegation.

If you agree with the proposition that all citizens should demand that evidence collected by the authorities be properly handled and maintained, join in communicating your opinion to the agencies charged with investigating the allegation we've filed. You can write them at these addresses:

Attorney General John Suthers
Colorado Attorney General’s Office
1525 Sherman Street, 7th Floor
Denver, Colorado 80203

or email him at attorney.general@state.co.us.

Colorado Springs Police Department
Internal Affairs
705 South Nevada
Avenue
Colorado Springs, Colorado 80903

District Attorney—4th
Judicial District
105 E. Vermijo Avenue
Colorado Springs,
80903

Integrity in evidence preservation is fundamental to any good investigation and prosecution.

Forensic Expert Pans Congressional Testimony

Here's an excerpt from comments by Brent Turvey, who has reviewed this week's testimony concerning the House Crime Subcommittee hearing on NAS Report on the need to reform the forensic science establishment. Mr. Turvey, a nationally known forensic scientist and criminal profiler is a Senior Partner at Forensic Solutions LLC. He is the author of Criminal Profiling and other books dealing with forensic science.

After reading the statements and the testimony, it has become painfully evident that none of the lab supervisors who testified have the first clue what they are talking about when it comes to forensic science. They all sounded like lawyers trying to argue points and preserve their funding rather than scientists trying to advance a scientific profession. That and their arguments were really poorly rendered if not just badly crafted. The fingerprint discussion even devolved into point counting - which even the FBI no longer uses. And it took Neufeld to bring that out.

Moreover, nobody once mentioned the major NAS finding related to bias and the need to separate labs from law enforcement. That was simply ignored.

Bottom line: I wish this had been attended by fewer attorneys and more actual scientists. The only person there on the side of science was Neufeld and that is problematic. The rest of them barely understood what science is, the methods being used, or the problems with them.

Nothing more frustrating than watching lawyers, prosecutors, and police advocates argue over these things without input from actual scientists.

Wouldn't it be refreshing if our courts relied upon science rather than the manipulations of prosecutors going for a win? And if our representatives relied upon unbiased testimony from independent experts rather than hacks trying to preserve their funding?

Strengthening Forensic Science

Regular readers of Bearing False Witness know that a failure of forensic facilities in Colorado contributed to Todd's wrongful conviction. Unfortunately, real life isn't like CSI--in real life corners are cut, prosecutors decide what tests will be run, and they often succumb to the temptation to order only tests that will gain a conviction rather than find the truth. And lab technicians sometimes feel pressure to help them make that case, often relying upon what's come to be called "junk science."

You can help fix this problem by raising your voice. Here's text from an email I received earlier today from Sarah Chu, a Forensic Policy Associate at the Innocence Project:

As you know, the Innocence Project has been tracking the work of the National Academy of Sciences Committee’s study group on the forensic sciences very closely over the last two years. Now that Strengthening Forensic Science in the United States: A Path Forward has been released, we have been strongly advocating for the report’s primary recommendation: the creation of a non-partisan, independent and science-based agency that will fund basic and applied scientific research on extant and developing forensic disciplines in need of more examination; set standards for their use in court; and coordinate future federal functions, programs, and oversight. We have recently launched a website: www.just-science.org to build a coalition to further advocate for our campaign.

I urge all who think that forensic science should actually be a science to support this campaign. Go to http://www.just-science.org and sign the petition.

Some clarifications on the Gazette report

Because I was unavailable to return Gazette reporter Maria Sanchez's fact-checking phone call, and because some readers of the Gazette report raised questions about the nature of the evidence that was altered, I'm using this space tonight to set a couple of things straight.

First, the trial record is clear regarding the "argument over a stripper," and it shows that the initiator of that argument was Brad Ogill, and we know that from Orgill himself--from his sworn testimony at the trial. A longer segment of his testimony from the trial transcript is available online, but here's the soundbite:

A. I made a comment saying, you know, "That was disrespectful. You shouldn't talk to ladies like that."
Q. Okay. And then what happens?
A. There was kind of like -- I'm not sure if there was, you know, direct pushing, but kind of a getting in each other's face, heated atmosphere.

Second, the deposit on the knife was more than a "black spot." The section of Detective Richer's report of his examination of the knife, November 20, 2009 describes it this way:

Closer examination of the blade itself would indicate various forms of debris and material along the cutting surface, specifically from the serrated edge back toward the hilt. Some of this debris in the latter area appears to be from a liquid state. I then turned the knife over to where I could readily observe the down side (pocket clip side) of the knife. From this perspective, I noted the pocket clip of the knife to also have the word "Bench Made" embossed on it, and "USA" underneath. The pocket clip itself is anchored to the hilt end of the handle. Upon examining the blade itself, I noted the same scratch/scaring pattern along the length of the blade, as earlier observed on the other side of the knife. Again additional areas of debris were notated, again with the higher concentration along the serrated edge and gaining in density as it moved closer to the hilt of the knife.

Gazette Coverage of Coverdell Allegation

Today's Colorado Springs Gazette reports our demand for an investigation of how crucial evidence in Todd's trial was altered, either at the El Paso County Sheriff's storage facility or at the Pueblo laboratory of the Colorado Bureau of Investigation.

The article quoted a response from lead prosecutor Jeff Lindsey, who said, "The jury heard about it, but they still found him guilty."

Mr. Lindsey's response fails to address the substance of the allegation of negligence/misconduct we've filed. It's not about what the jury thought; it's about what forensic authorities did.

The implications of evidence mishandling--and the allegation we filed clearly shows that mishandling occurred--go beyond what the jury thought in one particular case. To quote from the allegation we filed:

That the CBI failed to reveal evidence spoliation, that the initial state response to proof of spoliation was a denial of responsibility, that the evidence in question was crucial to obtaining a controversial conviction calls for an investigation that so far has not happened. All stakeholders in Colorado’s criminal justice system deserve to find out how the evidence in question here came to be altered—to find out what went wrong, to learn what mistakes must be avoided in the future to ensure integrity in forensic analysis.

What the jury thought in Todd's case is another matter. But I invite Mr. Lindsey to satisfy his interest in the thought process of the jury by viewing this video:

The Mixing of Blood

On the heals of the recent filing of our "Coverdell Allegation" regarding the mishandling of crucial evidence used to convict Todd, comes the report of Paul House who spent 22 years on death row for a murder he didn't commit. CNN reports that the victim's blood had been found on House's jeans, "but questions were later raised whether the samples were contaminated en route to an FBI lab for analysis."

Another case where crucial evidence had been mishandled, contaminated, and used to convict an innocent person.

The CNN report provided background from Peter Neufeld, co-director of the Innocence Project: "In the three years since the U.S. Supreme Court stepped into this case and sent it back to the trial court, substantial additional DNA testing and further investigation have shown that he is innocent. Each time a layer of this case was peeled away, it revealed more evidence of Paul House's innocence."

The full text of the allegation we've filed regarding mishandling of evidence in Todd's case is available at http://bearingfalsewitness.com/CoverdellAllegation.pdf.

Calling for an investigation

Yesterday we filed an allegation of negligence/misconduct concerning the handling of crucial physical evidence from Todd’s case. The technical name for “intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding” is spoliation. And spoliation is exactly what happened to the knife that prosecutors alleged to have been the murder weapon. Lead prosecutor Jeff Lindsey said the knife was “crucial evidence in the People’s case.” The spoliation concerned deposits that had been noted on the knife, when it was originally examined, but which later disappeared.

The integrity of this “crucial evidence” has been cast into doubt both by the presiding trial judge Gil Martinez and by Patricia Van Horn, a deputy Attorney General for Colorado. After viewing photos showing the changed condition of the knife, Martinez said, “somebody did something wrong, Counsel, because this knife should have been taken down to the CBI in the same condition as this photograph and apparently it wasn't, so somebody somewhere dropped the ball.” Initially, Van Horn denied any responsibility by the state, but during oral arguments in the case, she conceded of the evidence that the state was not going to argue “that this wasn’t destroyed by state action….we know it was in the state’s custody….”

The evidence was crucial because it was the only physical evidence connecting Todd to the victim Anthony Madril. None of the six witnesses had seen Newmiller confronting Madril, but all had seen Madril in a fierce fight with another man, prosecution witness Brad Orgill. Entering the fight with Orgill enthusiastically, Madril shouted, “It’s on. Let’s go.” Madril emerged from the fight bleeding from his chest and saying, “I just got stabbed.” Orgill’s clothing contained significant quantities of blood found to belong the victim. Todd’s clothing had no blood from the victim.

The prosecution’s theory of the crime was that Todd, unseen by any of six witnesses, stabbed Madril in the chest, breaching both ventricles, and then went on to have a non-violent confrontation with one of the victim’s friends. Meanwhile, according to the prosecution’s theory, Madril, his heart now slashed, went on to fight with Orgill. Todd says that he was angry after being punched by Madril’s friend Chisum Lopez and in retaliation used the knife (an aging folding knife he’d used early in the day to open boxes at work) to puncture the right rear tire of the pickup truck Lopez had ridden.

It’s undisputed that the puncturing of the tire occurred after Madril was engaged in the fight with Orgill. Debris noted on the knife and described by Detectives Don Richer and Jeff Nohr was consistent with what one would expect to have come from the punctured tire. What was in dispute was how a small quantity of the victim’s blood—not noted until the knife arrived at the CBI lab—came to be on the knife. The defense argued that the blood had to have been deposited sometime after Madril’s confrontation with Orgill. Other physical evidence supporting that position includes the absence of Madril’s blood on Todd’s clothing, the absence of blood spatters on the ground in the area where Todd was known to be standing, and the absence of blood in the puncture of the tire. Further, there were a number of opportunities for blood transfer to the knife after the confrontation, including the possibility of cross-contamination after the evidence was received. Had the knife been preserved in its original condition, it could have been subjected to a more comprehensive and credible analysis.

Early in the investigation of the stabbing, two members of the El Paso County Sheriff’s office, Detectives Don Richer and Jeffrey Nohr examined the knife closely. Both detectives noted that the knife contained various forms of debris and material. Neither detective noted the presence of any blood on the knife. Detective Richer testified that when he examined evidence, if he observed anything that looked like blood, he would so note it.

After the knife had been delivered into the possession of the CBI, Agent Rebecca Strub examined it and has since testified that the knife did not contain any debris or material as Richer and Nohr had reported. She did, however, note a minute amount of blood on the handle of the knife and around the logo on the blade of the knife. Photographs of the knife taken shortly after it was received by the El Paso County Sheriff’s Office, and reviewed by Judge Martinez, show the debris on the knife but do not reveal the existence of any blood on the knife. Testimony by a prosecution witness, Brad Orgill, who viewed the knife prior to its being received into evidence by the El Paso County Sheriff’s Office, corroborates the existence of debris and the absence of blood on the knife.

So far, no one has explained the spoliation that occurred. But that may change as the result of the allegation that we sent to the Colorado Attorney, the local District Attorney, and Internal Affairs at the Colorado Springs Police Department. These agencies are identified as having oversight of the facility where the knife had been stored and of the Colorado Bureau of Investigation’s crime lab where the knife had been sent for testing. Because these forensic facilities received federal funding under the Paul Coverdell Forensic Science Improvement Grant Program, federal law requires an investigation.

The mishandling of crucial evidence in Todd’s case is not an isolated example of problems in the application of forensic science. The Innocence Project, which provided advice in drafting the allegation we’ve filed, reports that in “more than 50% of DNA exonerations, unvalidated or improper forensic science contributed to the wrongful conviction.” It’s not like CSI. A recent report by the National Academy of Science calls for a major overhaul of forensic science in America, to include “removing all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices.” We wonder if the condition of the knife used as evidence against Todd would have changed had it been in possession of a neutral agency charged with finding the truth rather than simply building a case for conviction.

The full Coverdell allegation, which includes additional details about the mishandling of the knife, including its being “lost” for three months in the evidence room, is available online at http://bearingfalsewitness.com/CoverdellAllegation.pdf.

A video about the evidence in question is available at http://www.youtube.com/watch?v=59F9dLWnlxo. It includes scenes from oral arguments in our appeal to include Van Horn’s admission of the state’s failure to preserve the evidence in its original condition.

After Innocence

The Innocence Project has announced the release on DVD of the award-winning documentary After Innocence. A trailer of the documentary is available online.

Here's what the film is about:

AFTER INNOCENCE tells the dramatic and compelling story of the exonerated - innocent men wrongfully imprisoned for decades and then released after DNA evidence proved their innocence. The film focuses on the gripping story of seven men and their emotional journey back into society and efforts to rebuild their lives. Included are a police officer, an army sergeant and a young father sent to prison and even death row for decades for crimes they did not commit.The men are thrust back into society with little or no support from the system that put them behind bars.

While the public views exonerations as success stories - wrongs that have been righted - AFTER INNOCENCE shows that the human toll of wrongful imprisonment can last far longer than the sentences served.The film raises basic questions about human rights and society's moral obligation to the innocent and places a spotlight on the flaws in our criminal justice system that lead to wrongful conviction of the innocent.

The film features exonerees Dennis Maher of Lowell, MA; Calvin Willis of Shreveport, LA; Scott Hornoff of Providence, RI; Wilton Dedge of Cocoa Beach, FL.; Vincent Moto of Philadelphia, PA; Nick Yarris of Philadelphia, PA; and Herman Atkins of Los Angeles, CA.

Confirmation Bias

I read an article from the Wisconsin Law Review, "The Multiple Dimensions of Tunnel Vision in Criminal Cases," by Keith A. Findley and Michael S. Scott, both Professors at the Wisconsin School of Law. "Tunnel Vision," also referred to as "Confirmation Bias," has long been recognized as a cognitive phenomenon, but only recently has its role in wrongful convictions surfaced in popular awareness. A short clip from the prime time TV series Bones, dramatizes a forensic analyst displaying confirmation bias:


Of course a 23 second clip can't begin to tell us all we should know about confirmation bias, but Findley and Scott's article can take us deep into the topic. They describe several cases, including the famous Central Park Jogger case where confirmation bias resulted in wrongful convictions. Then they go on to describe how even trial and appellate judges can become victims of the phenomenon.

Findley and Scott's work is especially meaningful for us because our son Todd's case bears the hallmarks of confirmation bias: an early snap decision by investigators and prosecutors followed by an unwillingness to follow leads that pointed away from Todd as the perpetrator. Prosecutor Amy Mullaney insisted on cutting a plea bargain with the only person seen fighting with the victim, many months before the state's forensic analysis would be complete.

The state even declined to test a blood stain on Todd's jacket. We had it tested at our own expense to prove that the blood did not belong to the victim but rather to Todd. During the appeal, the Deputy Attorney General referred to Todd's blood stained jacket in an attempt to imply that the stain connected Todd to the victim, even though by then the DNA results were in and the stain had been identified as Todd's, not the victim's.

A Conviction Integrity Unit

Dallas DA Craig Watkins instituted a conviction integrity unit that should be a model for all DAs. Watch the trailer below, watch the show, "Dallas DNA," on the Discovery Channel, and then ask your local DA to institute a conviction integrity unit.

Convicted Wrongly at 13, Free After 16 Years

From this morning's Chicago Sun-Times:

More than 16 years ago, 13-year-old Thaddeus Jimenez was arrested for a street gang murder on Chicago's Northwest Side, despite his claim of innocence. A judge sentenced him as an adult to 50 years in prison, describing Jimenez as a "little punk, probably too young to shave, but old enough to commit a vicious murder."

But Friday, Jimenez, 30, became what his lawyers say is likely the youngest person in U.S. history to be wrongfully convicted of a crime and exonerated after Cook County Criminal Court Judge Joseph Claps vacated Jimenez's conviction. He was released from Hill Correctional Center in Galesburg.

Watch the video of his release:

State Innocence Commissions

In the wake of last week's announcement of the formation of the New York Task Force on Wrongful Convictions, comes word that the Texas House Criminal Jurisprudence Committee has approved 8-3 Texas State Representative Ruth Jones McClendon's proposal for a commission to investigate and prevent wrongful convictions in Texas.

The commission would be named the Timothy Cole Innocence Commission in honor of the Army veteran who served 10 years of a 25-year sentence after being wrongfully convicted of a sexual assault he did not commit. Cole died in prison in 1999, before he was cleared.

Colorado, as well as other states, needs to look closely at its use of practices that we now know convict the innocent and let the guilty go free. The exoneration of Tim Masters last year provides a peak into a justice system that rushes to judgment and seldom looks back on mistakes. It's time for us learn from past mistakes rather than simply repeating them at great cost to justice.

New York Task Force on Wrongful Convictions

From the April 30, 2009, New York Times:

In one of his first major initiatives as the state’s top jurist, Jonathan Lippman, the chief judge of New York’s Court of Appeals, said he would create a permanent task force to examine wrongful convictions and recommend ways to minimize them.

Members of the task force, who are being selected by Judge Lippman, will include prosecutors, defense lawyers, scientists and lawmakers. They will have a broad mandate to examine police procedures, court rules and other issues involved in wrongful convictions.

A recent spate of high-profile cases have involved exoneration or overturned convictions, including those of Martin H. Tankleff, who was convicted in 1990 of bludgeoning his parents, and Jeffrey Deskovic, who was convicted that same year of raping and murdering a high school classmate. According to a report released last month by the New York State Bar Association, 53 people have been formally exonerated in New York since 1964, about half through the use of DNA testing.

Read the entire article. As the numbers of exonerations grow nationwide, we're beginning to realize how severe the problem of wrongful convictions has become. Other states need to follow New York's lead.

Resistence to Truth

The33News.com from Dallas-Fort Worth reports on the move in Texas to reform procedures for treating eyewitnesses in crimes. Texas lawmakers have proposed standard written procedures to reduce the number of wrongful convictions occurring due to questionable practices by law enforcement officials. Although Sergeant Kevin Perlich speaking on behalf of the Richardson, Texas, Police believes the upgrades are a good idea, many in the Texas law-enforcement establish oppose them. Why would police resist procedures to improve accuracy in identifying criminals?

Texas exonoree Johnnie Lindsey, who spent 26 years in prison for a rape he didn't commit recently testified on behalf of the changes. The33News.com interview with Lindsey is available online.

Gallows Humor and Wrongful Convictions

Of course wrongful conviction is no laughing matter, but satirical accounts of tragic human behavior has long been a tool for enlightenment. Think Jonathan Swift's "A Modest Proposal."

With that context in mind, take a look at this from The Onion:


DNA Evidence Frees Black Man Convicted Of Bear Attack

Coercive Interrogation

Steven Kleinman is an Air Force Reserve Colonel with experience interrogating prisoners during the Panama invasion, the First Gulf War, and most recently in Iraq, where he became in his words perhaps the "most unpopular officer" in the country because of his efforts to halt "harsh" interrogations.

Col Kleinman knew that the problem with coercive techniques is that they elicit false information. Responding to questions by NPR's Robert Siegel, Kleinman said, "it's not just harsh physically, but I think the element that was more persuasive was their ability to induce what is known as debility, depression and dread through emotional and psychological techniques that profoundly altered somebody's ability to answer questions truthfully even if they wanted to. It truly undermined their ability to recall, so therefore it would call into question its efficacy in an intelligence-based interrogation."

He explained that "a key point that your listeners need to understand, so they can grasp the gravity of the situation, is that the primary objective of that approach to interrogation was not truth … but somebody's political truth. In the Korean War, they actually compelled some of our pilots to admit to dropping chemical weapons on cities and so forth, when in fact that didn't happen. Now, that stands in stark contrast to intelligence interrogation, where the overriding objective is provide timely, accurate, reliable, comprehensive intelligence."

There's a lesson here for domestic law enforcement. Those being interrogated, just like downed American pilots in the Korean War, can be driven to say what interrogators expect of them, even if it's a fabrication. Think it doesn't happen here? The Innocence Project ranks false confessions as one of the major causes of wrongful convictions. Consider the case of Danial Williams, wrongly convicted of murdering Michelle Bosko in 1997. The following account is taken from an academic paper by Law Professor Richard A. Leo and Professor of Psychology Deborah Davis.

Never imagining that he was a suspect, Williams willingly followed them to the police station, arriving at 6:30 pm. Police kept him waiting while they followed up with other witnesses until about 8 pm, when they undertook an interrogation that would last through the night, until after 7 am the next morning. Williams, who was exhausted and had not eaten since breakfast at around 9 am, maintained his innocence for the first ten hours as he was interrogated by three different detectives. He agreed to take a polygraph, and he was falsely told that he had "failed."

He was relentlessly accused of having sexual interest in Michelle and of raping and murdering her; he was accused of lying about his reported memories of his relationship with Michelle and his activities at the time of the murder; and he was told, falsely, that an eyewitness had seen him leave Michelle’s apartment around the time of the murder. As the interrogation continued into the wee hours of the morning, Williams became increasingly exhausted and sleep-deprived; at one point when he put his head down on the table to rest, the interrogators told him to pick it back up.

As Williams continued to deny involvement, the interrogators began to suggest that he could have "repressed" his memories of the crime—that he could have blacked out, or been sleepwalking, that he could have amnesia. Even though he had begun to doubt his own memory and to wonder if he had somehow committed the crime, he continued to resist their repeated accusations. But at around 4:50 am, a new interrogator was brought in –Detective Robert Glenn Ford.

Ford was known for his aggressive interrogation techniques, and his frequent success in inducing confessions. But he was also known for some more shady techniques, many known to enhance the risk of false confession, and had already been demoted once for coercing false confessions from three teenagers in 1990. Subsequently, he induced known false confessions in at least two more cases in 1994 and 1997.

The interview with Col Kleinman is available online, as is Leo's full paper on false confessions and wrongful convictions. Warning: what I've extracted from Leo's account is only the tip of the iceberg. Don't follow this link unless you're willing to be enraged. Until Americans recognize the folly of believing what people say when they are under duress, we'll continue to follow tragic paths based upon faulty data.

"The gavel came down on my life"

Kirk Bloodsworth, was amazed that so many people were willing to believe that he--an honorably discharged Marine with no prior arrests--raped and murdered a nine-year-old girl. But, he said, “The gavel came down on my life, and the courtroom broke into applause when I was given death.”

He spent nineteen years in prison before being exonerated.

Darryl Hunt faced a similar incarceration after being wrongly convicted of a rape and murder. The two men spoke recently in Utica, New York. Addressing a luncheon sponsored by the Oneida County Bar Association, Bloodsworth spoke of the need for law enforcement officials and prosecutors to conduct lineups and interrogations properly, and of the importance of high standards in evidence collection and preservation.

But Lawrence Golden, a past president of the Oneida County Bar Association and chairman of the Art of Innocence, said even that is not enough. “Until you change the mindset of jurors and make them believe that people do get mistakenly convicted … until the public becomes aware of these facts, regardless of changes we have in the law, wrongful convictions are going to continue.”

In the audience was Steven Barnes, who spent 19 years in prison before being exonerated late last year for a 1985 rape-murder. Barnes, who plans to begin speaking about his case as well, said, “I want people to hear my story. There are a lot more innocent people in prison than anyone realizes.”

You can read the Utica Observer-Dispatch coverage of Bloodsworth and Hunt's comments online.

Darryl Hunt's story is also the subject of a new documentary. Here's a trailer for The Trials of Darryl Hunt:

Repealing the Death Penalty in Colorado

Whether you believe in "an eye for an eye," or that the "quality of mercy is unrestrained," you have to agree that implementation of the death penalty has been fundamentally flawed. I can't believe that anyone wants the state to execute an innocent person, but consider this fact: 131 inmates on death row have been exonerated. How many other innocents have slipped through the cracks in our crumbling system of justice?

Here's your chance to make your feelings known. Colorado is considering repealing the death penalty. Go to http://www.denverpost.com/breakingnews/ci_12195165?_requestid=103199 and take the Denver Post poll. You can be sure that Colorado Governor Bill Ritter, and other elected officials are watching the poll closely, considering the political impact as they develop their stance on this important bill to repeal the death penalty in Colorado.

Who Benefits?

Here's something for prosecutors to think about when adversarial heat gets the best of them. A quote from Stephen Salom, policy director at the Innocence Project:

"No one benefits from a wrongful conviction. Not the police, not the prosecutor, not the judge, not the jury, not the victim. The only person that really benefits is the perpetrator."

Still, it happens often. And in some cases, there is no perpetrator because there's been no crime. Take the case of Beverly Monroe, convicted of boyfriend's murder, when in fact he'd committed suicide. Surely, the effort that goes into convicting someone wrongly is considerable. There must be some perceived benefit at the time. Is it hubris? political gain? job security? or just adversarial heat?

The video embedded here shows just a few of the hundreds of exonerated who collectively have spent centuries in prison. What level of cynicism must their prosecutors (persecutors?) have possessed to have pushed for their convictions in the first place, and then--in some cases--done all that they could in the name of the people to obstruct their exoneration?

Separate police, labs because of bias

Abigail Goldman writes in Monday's Las Vegas Sun:

The National Academy of Sciences spent two years studying the state of forensic science in America. The resulting report, released in February, isn’t pretty. Forensic science is shoddy, our country’s crime labs are fragmented, forensic scientists aren’t adequately certified and the science of solving crime is dangerously inconsistent — disturbing findings that lead to perhaps the most controversial conclusion in the report: Crime labs need to be independent of law enforcement agencies because forensic scientists who work for police are prone to subtle, contextual bias.

This is different from the egregious cases of forensic investigators allegedly rubber-stamping the work of detectives — as in Los Angeles, where the police department is reviewing hundreds of fingerprint identifications after lab examiners falsely implicated at least two people in crimes.

Contextual bias is more nuanced, brought to light by research such as a 2006 study at University of Southhampton, in the U.K., where academics re-presented fingerprints to examiners who had previously studied them and, with some contextual prodding (such as saying “the suspect has confessed”), prompted the examiners to stray from their original findings.

Read the rest of Goldman's article here.