Friday, June 26, 2009

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 for links to a march you might attend. I'll be leading the march tomorrow in Denver. Details for it are available at

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

Wednesday, June 24, 2009

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 The website for Colorado's event is at

Thursday, June 18, 2009

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 If you reside in another state, check out the national web site at 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 in Colorado at

Sunday, June 14, 2009

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.

Thursday, June 11, 2009

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

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 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.

Wednesday, June 10, 2009

Myths and Facts about Wrongful Convictions and Claims of Innocence

Myths and Facts from

  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.

Sunday, June 07, 2009

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

A couple weeks ago at, 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.

Wednesday, June 03, 2009

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

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.

Tuesday, June 02, 2009

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?