Former FBI Director Sessions Speak Out

Writing in Slate, William Sessions, FBI Director from 1987-1993, urges the Obama administration to rethink its position on post-conviction DNA testing. In the article, Sessions recalls his surprise at DNA results after the FBI installed its DNA testing lab:

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

Commenting further, Session writes, "As I know from experience, law enforcement's predictions about a defendant's likely guilt are no substitute for actually performing a DNA test." Still, on Monday the administration will argue that William Osborne, an Alaskan convicted of rape, has no right to test DNA that could prove his innocence.

Sessions go on to say:

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

Session comments further:

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

Freedom March -- Marching for Awareness of Wrongful Convictions

Mark Saturday, June 27 as a day to raise awareness about wrongful convictions. The event now in its early planning stages will target state capitals. Marchers will walk approximately a mile to their state capitol with signs containing statistics and the names of those who have been wrongfully convicted. Once at the capitol there will be speakers and booths handing out information on wrongful convictions. Its time our nation and it's citizens became more informed on the reality of our unjust justice system. Please visit http://MarchForFreedom.org to learn more about this event and how you can support it.

You can also participate in this event on Facebook. Go to http://www.facebook.com/inbox/?drop&ref=mb#/group.php?gid=49223322930.

A Facebook Cause for Todd

We've begun a Facebook cause to show support for Todd. You can visit it at http://apps.facebook.com/causes/231256?m=edd8a396. Any donations taken through that page go to INNOCENT, also known as Humanity for Prisoners, a Michigan non-profit that works to right wrongful convictions and advocates for humane conditions in our prisons. Doug Tjapkes has worked tirelessly and very successfully as this group's leader and founder. Please visit his website at http://humanityforprisoners.org and consider encouraging his fine work with a donation.

Although we've benefited from Doug's wise counsel and friendship, we receive no funds from his organization.

Innocent, Convicted, Exonerated, Then What?

It's been a year since Tim Masters was released and exonerated for a Colorado murder--a good time to review his tragic case and for all of us to learn about the heavy price of a wrongful conviction. Catch the CNN report, which has links to plenty of revealing video.

Picking Cotton

Today the Innocence Project announced the March 3rd release of Picking Cotton, which tells the story Jennifer Thompson-Cannino, and Ronald Cotton. She identified as the person who'd raped her, but after years in prison, Cotton was exonerated through DNA testing. Author Erin Torneo writes about the close friendship that developed when they met two years after Cotton exoneration. Today they travel around the country telling their story and urging states to reform eyewitness identification practices to prevent wrongful convictions.

Take a look at the trailer for the book:

You can preorder your copy from Amazon.com today and a portion of proceeds will support the Innocence Project

Innocence, Juries, and Prosecutors

The discussion of the recently overturned verdict convicting Joshua Kezer of the 1992 murder of Angela Mischelle Lawless draws attention to the oft-heard argument of those who would ignore innocence claims: the jury convicted him.

You don't have to look beyond these pages to hear the voice of a juror who voted for conviction, even though he clearly doubts the guilt of the defendant.

In Kezer's case, more than 25 pages of findings supported his innocence of the crime or listed suppressed evidence that could have changed a jury's verdict. Authorities suppressed evidence from a witness who identified another person as the perpetrator. The prosecutor in closing mischaracterized vegetable juice stains on Kezer's jacket as blood.

Prosecutor Kenny Hulshof's defense for his actions: "But twelve jurors looked these witnesses in the eye, dispassionately listened to their testimony, and found them to be credible."

Amazing, no? He defends the legitimacy of his case by saying in essence, "The jury believed my lies, so it must be true."

Fortunately, Missouri's Cole County Judge Richard G. Callahan would have none of of Hulshof's reasoning. Callahan writes in his opinion:

"A jury trial is not a shield for prosecutors to avoid difficult charging decisions, and deference to a jury verdict is not a substitute for meaningful judicial review. In the final analysis, our system of trial by jury is there to protect citizens from its own government, not to protect government from its own mistakes."

Thanks to the Innocence Institute of Point Park University for material presented here and orgininally published on its blog.

Prison for Profit: Recipe for Corruption

Headline in the New York Times: "Judges Plead Guilty in Scheme to Jail Youths for Profit."

The Times goes on to deliver the gist of the story: Judges Mark A. Ciavarella Jr. and Michael T. Conahan "appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care."

How many kids have been on the receiving end of Ciavarella and Conahan's self-enriching brand of "justice"? The Times offers a hint: "For years, youth advocacy groups complained that Judge Ciavarella was unusually harsh. He sent a quarter of his juvenile defendants to detention centers from 2002 to 2006, compared with a state rate of 1 in 10. He also routinely ignored requests for leniency made by prosecutors and probation officers."

That these guys got away with it for so long, doing their dirty work beneath the noses of prosecutors and probation officers, tells us something about how easy corruption can flourish in a criminal justice system that places itself beyond the kinds of accountability processes that are standard in other professions. Add to the lack of accountability the motive private incarceration centers have to profit from the misery of others, and you have a recipe for corruption.

What's Wrong with Seeking the Truth?

Last week the New York Times reported on a US Supreme Court case to be argued on March 2nd. The case is about access to DNA in order determine guilt. The state of Alaska contents that one of its prisoners, convicted of rape, has no constitutional right to have crime scene DNA tested that would conclusively prove either his guilt or innocence.

Although the DNA has been in evidence for over 15 years, remarkably, it has never been been subjected to the kind of precise analysis that has been available for years.

Read the Times article at http://www.nytimes.com/2009/02/11/nyregion/11about.html.

Also astonishing is that President Obama's Deputy Solicitor General, Neal Katyal, plans to argue on behalf of the prosecution, to maintain that testing of the crime scene DNA would be detrimental to justice.

No one knows for sure what the results of testing will reveal, but you have to wonder why so many in this case fear the truth, or even more, why they are unwilling to support a process that can unlock the truth not only in this case but in others down the road.

It's easy for you to send your opinion on this issue to President Obama and to Neal Katyal. Just go to http://criminaljustice.change.org/actions/view/give_prisoners_access_to_dna (if you don't have an account on Change.org you can sign up for one free of charge) and sign the petition.

Report on Forensic Science

The National Academy of Science released its report today, which is highly critical of our current forensic science practices. The report, commissioned by Congress, calls for sweeping changes in what has passed for "science" in our criminal justice system. The report is of special interest to us because it validates many of the criticisms we've had with how evidence was handled and analyzed in Todd's case. Of special note is the call for "removing all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices."

In almost all jurisdictions (including Colorado Springs), forensic analysts have an exceedingly cozy relationship with law enforcement personnel and prosecutors. It's not like CSI and LA Law. The process is not investigate, then charge; rather, it is charge, then investigate. The result has been investigations that are driven by hunches and sketchy data that can easily go astray as prosecutors focus on improving their won/loss record rather than on truth-seeking.

You can read the executive summary of the report online at http://www.nap.edu/nap-cgi/report.cgi?record_id=12589&type=pdfxsum.

Read about response to the report here: http://www.propublica.org/article/government-funded-study-calls-for-overhaul-of-nations-crime-labs.

Why the Innocent Are Punished More Harshly Than the Guilty

This from Daniel J. Solove on the Concurring Opinions Blog:

The AP reports on a really tragic case of wrongful conviction:

A man who died in prison while serving time for a rape he didn't commit was cleared Friday by a judge who called the state's first posthumous DNA exoneration "the saddest case" he'd ever seen. . . .

[Timothy] Cole was convicted of raping a Texas Tech University student in Lubbock in 1985 and was sentenced to 25 years in prison. He died in 1999 at age 39 from asthma complications.

DNA tests in 2008 connected the crime to Jerry Wayne Johnson, who is serving life in prison for separate rapes. Johnson testified in court Friday that he was the rapist in Cole's case and asked the victim and Cole's family to forgive him. . . .

The Innocence Project of Texas said Cole's case was the first posthumous DNA exoneration in state history.

The part of the story that caught my eye was the fact that Cole's insistence on his innocence is what led to his imprisonment and prevented his release on parole:

Cole and his relatives for years claimed he was innocent, but no one believed them until evidence from the original rape kit was tested for DNA. Cole had refused to plead guilty before trial in exchange for probation, and while in prison, he refused to admit to the crime when it could have earned him release on parole

This case illustrates how our criminal justice system punishes the innocent more harshly than the guilty. This phenomenon occurs because of several rules and practices:

1. The federal sentencing guidelines and sentencing guidelines in many states provide for reductions in sentences for "acceptance of responsibility." The innocent defendant, who refuses to admit to the crime, will not receive this benefit.

2. An innocent defendant might often refuse to accept a guilty plea deal. When the innocent defendant defends his or her innocence at trial and gets wrongly convicted, that defendant will invariably receive a much higher punishment than that proposed in the plea deal.

3. An innocent defendant, by not admitting to the crime, might hurt his or her chance for an early release from prison.

These factors lead to the rather perverse outcome that defendants who are innocent are punished more harshly than the guilty. The innocent defendant faces a terrible choice -- either falsely admit guilt, in exchange for a lighter punishment, or defend his or her innocence but pay dearly if he or she loses. Innocent defendants are probably much more likely to choose the latter strategy. Timothy Cole turned down a plea deal for probation because he didn't want to confess to a crime he didn't commit. That's a decision made on principle, one that an innocent person might very well make but rather unusual for a guilty person to make.

Colorado Prosecutor Embarassed

An Associated Press story printed in today's Kansas City Star reports that Terence Gilmore and Jolene Blair--prosecutors who wrongly convicted Tim Masters--are embarassed. Despite their "embarassment," they have no trouble shifting the blame for their withholding of evidence to the defense.

From the Kansas City Star:

The former prosecutors, who are both now judges in the 8th Judicial District, told regulators in separate interviews in May that they didn't make any of the evidence secret. But they also claimed defense attorneys never asked for those records and didn't strongly cross-examine witnesses.

"It's very frustrating to look back on a case you tried 10 years ago and discover that there's all of this information that you never had," said Blair, who was assisting lead prosecutor Gilmore. "Would I have done it differently? Absolutely. I wish I knew now what I didn't know then."

Evidently, what Blair didn't know then was the statute-mandated responsibility of a prosecutor to seek the truth rather than just a conviction. And from the sound of it, Blair still seems kind of vague on that responsibility.

Blair and Gilmore, despite their central role in convicting an innocent man, remain as Colorado judges.

Non DNA Exonerations

Today's New York Times reports on new efforts to exonerate prisoners in cases without DNA evidence. The article ends with a comment on the chilling awareness that comes from studying wrongful convictions : “One thing we’ve learned by studying these cases and litigating these cases is it could really happen to anybody,” said Daniel S. Medwed, a professor at the University of Utah who studies wrongful convictions. “Nobody is immune.”

In the entries published here, we've enumerated much of what resulted in Todd's wrongful conviction. They're the kinds of things that happen again and again across our nation: shoddy investigation practices, tunnel vision on the part of prosecutors and police, the cozy arrangement between prosecutors and investigators that results in their cherry-picking the evidence to support a conviction rather than a thoughtful examination that could lead to the truth.

Unfortunately, our criminal justice system has failed to provide mechanisms that can actually right the wrongs that result. The Times article reports, "At the University of Michigan, David A. Moran, a director of the new innocence project there, said it was 'scary' that compelling evidence of innocence was sometimes not enough to persuade judges or prosecutors."

And even when judges have second thoughts, their options are often limited and the road to exoneration is arduous. Again from the Times article:

A state judge in Missouri last August overturned the conviction of a man who had served 23 years for a murder in St. Louis. The judge cited the credibility of the prosecution’s main witness, who had recanted his testimony that the convicted man was the killer.

But the judge’s decision came six years after a panel of federal judges, having considered much of the same evidence, ruled that though it had “a nagging suspicion that the wrong man may have been convicted of capital murder,” it could not overturn the conviction of the man, Darryl Burton, because of numerous procedural impediments.

Read the Times article in its entirety here.

Preservation of DNA Evidence

In Colorado HB 09-1121, DNA Evidence Preservation Process, is being considered by our lawmakers. I plan to speak about the bill on Monday at the Capitol. Earlier today I sent the following to Judiciary Committee members.

Chairman Levy and Honorable members of the House Judiciary Committee:

My name is William Newmiller and I am writing to address concerns about the legislation proposed in HB 09-1121 entitled DNA Evidence Preservation Process.

I am a retired Air Force pilot and a former member of the FBI. For 25 years I’ve lived in Colorado Springs, during which time I’ve been a professor of English at the Air Force Academy, a position in which I continue to serve with great joy. My passion regarding the issue of evidence preservation comes from my son’s conviction for a crime he did not commit. Central to his conviction was the failure of the El Paso County Sheriff’s Department to preserve potentially exculpatory evidence.

Introduction
Although the intent of HB 09-1121 is commendable, in its present form it fails to fix the most fundamental flaw of its predecessor: It lacks an effective mechanism to enforce the preservation of potentially exculpatory DNA evidence.

This analysis will explain why relying upon courts to “determine whether the disposal of the DNA evidence violated the defendant’s due process rights” (18-1-1-1104(4)) will be ineffective. Then, other less severe shortcomings will be noted.

Failure to preserve DNA evidence won’t yield a due process violation
The US Supreme Court in Arizona v. Youngblood (1988) determined that due process is not violated when the state fails to preserve potentially exculpatory evidence. Writing for the majority, Chief Justice William Rehnquist opined:

The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. [emphasis added]

Rehnquist goes on to say, “We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Rehnquist explains what is involved in showing bad faith, writing, “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Of course in the case of untested DNA evidence, there can be no knowledge of its exculpatory value at the time of its loss.

Colorado courts continue to rely upon the precedent of Arizona v. Youngblood to evaluate claims of due process violations regarding the failure to preserve evidence, DNA or otherwise.

18-1-11-2 fails to require preservation of DNA evidence between the filing of charges and conviction
The period between the filing of charges and conviction is one when there is heightened risk of loss or damage to evidence. During this period, evidence is often transported to various locations, such as the CBI Lab, and is subject to handling by more people than at any other time. In our son’s case loss of evidence occurred during this period of time, and the Colorado Court of Appeal relied upon Arizona v. Youngblood to deny our claim of a due process violation. To exclude this period greatly diminishes the potential of HB 09-1121 to improve accuracy in verdicts.

18-1-1105 outlines disposal procedures that fail to require active and informed acquiescence of the defendant
As written, the failure of an incarcerated defendant to respond clears the way for the destruction of the evidence. However, by the time the defendant is incarcerated and appeals decided (a period that often lasts several years), the defendant is unlikely to have legal counsel for advice on the issue. The problem is compounded because of the likelihood that the defendant may suffer from mental illness or retardation, conditions that make reliance on passive acquiescence especially problematic.

18-1-1105 fails to recognize the significance of post-conviction claims of innocence as grounds to preserve evidence
Empirical data gathered by the Innocence Project, which has now exonerated over 225 previously convicted felons, show that “In 25% of the wrongful convictions overturned through DNA testing nationwide, innocent people confessed or admitted to crimes they did not commit. In 5% of all cases that resulted in DNA exonerations, innocent people actually pled guilty to crimes they didn’t commit.”

18-1-1105 fails to recognize that DNA testing technology is likely to improve and that improved testing may be critical to freeing the innocent and bringing the guilty to account
The case of Youngblood v. Arizona is instructive in understanding why even DNA evidence of questionable value should be retained. In this case, the DNA evidence in question had not been stored properly and had deteriorated to the point where the procedures of the 1980s could not provide reliable results. The Supreme Court’s opinion returned Larry Youngblood to prison, but to its credit the State of Arizona retained the degraded DNA evidence. Twelve years after the Supreme Court published the Youngblood opinion, DNA testing had improved. Better DNA tests finally teased the secret from the evidence. The DNA belonged not to Larry Youngblood, but to Walter Cruise who by then was serving time for another crime. Youngblood was released from prison. Cruise eventually pled guilty to the crime for which Youngblood had originally been convicted. Note: that the Arizona v. Youngblood opinion resulted in extended incarceration of an innocent man and allowed the guilty to commit another crime has not diminished court reliance upon it to deny due process violations.

Conclusion
During these difficult economic times, something needs to be said about the economic impact of DNA preservation. Obviously, the motive for preserving such evidence is to avoid convicting and incarcerating the innocent while increasing the potential to convict the guilty. Because the mere idea of convicting the innocent is so morally appalling, the cost of false convictions is often overlooked. Empirical research tells us that at least 3.3% of those serving prison time and maybe as many as15% in some jurisdictions are factually innocent of the crime for which they are incarcerated. If we assume 3.3%—at the low end of the scale—then Colorado has 763 innocent inmates, each housed at an annual cost of $28,759, a total housing cost of $21,943,117 per year. There are, of course, other significant costs. When an innocent person is convicted of a crime, the guilty person goes free, often to commit other crimes, as Walter Cruise did after the conviction of the innocent Larry Youngblood. DNA preservation is an excellent investment of Colorado’s limited resources. While this bill, when modified to address the concerns listed here, is commendable, greater returns in justice and financial savings will accrue by expanding the principal of evidence preservation to more categories of offenses and to other forms of potentially exculpatory evidence.

Recommendations

1. Enforce preservation of evidence by legislating consequences for the failure to so. Consequences might include dismissal of charges against the accused or might specify the nature of sanctions levied against the prosecution, when loss occurs prior to conviction. Post-conviction losses might require some lowering of the bar to gain post-conviction relief. Consequences might also be directed towards those responsible for the failure, making them vulnerable to criminal penalties and/or civil suit, or at least subjecting them to significant administrative remediation to include termination of employment.
2. Expand preservation requirements to cover the period of time between the filing of charges and the rendering of a verdict.
3. Require active and informed consent from the defendant before evidence can be destroyed.
4. Respect claims of innocence, especially in cases where significant doubt can be raised regarding the accuracy of the verdict.
5. Recognize the potential of evidence that may not yield to current technology.
6. Expand preservation requirements to additional classes of offense and to other forms of exculpatory evidence.
   

Spreading the Word

Thanks to fellow blogger and friend Doc at TheyRodeOn. In his recent posting, he embeds the YouTube video about Todd's case and reports his personal reactions. Doc was there at the appeal. He's a guy who has dedicated his life to protecting and defending our constitution. His support is beyond measure.

Posthumous DNA Exoneratoin

Tim Cole, convicted of raping a Texas Tech student in 1985, died in prison in 1999. But DNA evidence not available at the time of his conviction has shown that another man, already imprisoned for rape, committed the crime for which Cole was sentenced to 25 years. The victim of that rape has come forward to urge that Cole's conviction be overturned.

Also speaking out on behalf of Cole is Jerry Wayne Johnson, the man implicated by DNA testing as the actual perpetrator. Amazingly, Johnson, who is now serving time for two other rapes committed in the 1980s has been trying to convince authorities for more than a decade that he, not Tim Cole, was the guilty party.

Lubbock County prosecutors have acknowledged the DNA test shows Cole was not the rapist. There is, however, no simple legal channel to formally exonerate someone who has died.

Read the story in the Houston Chronicle.

You Tube Video

An anonymous supporter of Todd's--I know not the person's name--has taken up the cause of evidence preservation generally and illustrated it with Todd's case in a new YouTube video:


The video makes an important point about the lack of respect evidence receives these days. The Colorado House will be hearing comments on a bill regarding preservation of DNA evidence on Monday, February 9, and I plan to be there to testify. In the coming days, I'll be posting more details about HB 1121, DNA Evidence Preservation Process.