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.

Convicted, Exonerated, then What?

CBS Sunday Morning provides some insight. Hear the story of 62 year-old Beverly Monroe, who says of her experience, "The minute you're falsely accused, your life is gone. Your life as you know it will never be the same. You lose everything that you had in a normal life. For me it was house, job, career, income, separation from my family. You lose all of those normal basics."

Take ten minutes and hear her story and those of others in this video:

Watch CBS Videos Online

Scientific Investigation of Crimes

This week Innocence Project founders Barry Scheck and Peter Neufeld accepted the Thomas Jefferson Medal of Law at the University of Virginia. An receiving the award, they spoke forcefully about the need to " take the scientific method and apply it to the investigation, adjudication and post-conviction analysis of cases ." The Innocence Project, according to Neufeld, has found that in “60 percent of wrongful conviction cases [in which] forensic scientists testify for the prosecution, they provided invalid testimony — testimony that was scientifically invalid by the prevailing norms at the time.”

The University of Virginia has made a report of the award to Scheck and Neufeld online. A video is also available in a link from their podcast page.

Regular readers of BearingFalseWitness know that Todd's case was marred by forensic irregularity. In Todd's case, the knife that the state alleged to be the murder weapon changed condition while in the state's possession. Although Colorado State Deputy Attorney General Patricia Van Horn admitted state responsibility in the alteration of deposits on the knife, the state Appellate Court found no due process violation because the value of the lost evidence was only "potentially" exculpatory. Another way of looking at the decision is that the mishandled evidence only had "potential" value in determining the truth.

I wonder how many people would accept a physician's failure to perform a critical test because it only had "potential" to diagnose a medical condition.

Susan Boyle: Art, Truth, Insight, and Being Human

The majesty of art is in its power to open our minds to truths about the human condition--a phenomenon that has made Susan Boyle, a middle-aged unemployed Scotswoman, an overnight sensation. Many are moved to tears as they watch the YouTube video of Boyle winning over a skeptical audience, a crowd of eye-rolling cynics eager to laugh at her public humiliation. And then by the time she'd sung four notes, she'd won them over. In four notes, the audience relearned what they should never have forgotten, the transformative power of art. As she sang "I Dreamed a Dream" from Les Mis, the lyrics touched me as I thought of our family's dream, which is also Todd's dream.

I dreamed a dream in time gone by,
When hope was high and life, worth living.
I dreamed that love would never die,
I dreamed that God would be forgiving.
Then I was young and unafraid,
And dreams were made and used and wasted.
There was no ransom to be paid,
No song unsung, no wine, untasted.

But the tigers come at night,
With their voices soft as thunder,
As they tear your hope apart,
And they turn your dream to shame.

The song ends

I had a dream my life would be
So different from this hell I'm living,
So different now from what it seemed...
Now life has killed the dream I dreamed...

Susan Boyle's performance, though, was not about a dream lost; rather, it was about a dream found. The irony is that had Boyle fumbled and fallen on stage, the response would have been laughter. But tears fell at the joy of seeing a dream realized, and from the sure knowledge that if Susan Boyle's dream could be realized, so could ours.

If you're not among the eight million plus who have watched Susan Boyle's performance, take a look at it.

Why Crime Labs Need to be Independent

Opinion published last week in USA Today makes it clear why crime labs need to be independent--an important recommendation from the recent report from the National Academy Sciences.

In part, the opinion piece says:

Over the past decade, in fact, scandals have ensnared more than 200 officials, from clerks to lab directors; cast doubt upon thousands of convictions, including rapes and murders; and created statewide legal tangles that have cost millions of dollars.

In a report issued in February, the National Academy of Sciences (NAS) concluded that science in the justice system desperately needs an overhaul. Many necessary steps are backed by wide consensus. Among them are more money to erase huge testing backlogs and improve research, mandatory accreditation for labs and training requirements for technicians.

But one idea — moving crime labs out from under the management of law enforcement agencies — has sparked opposition from groups representing crime lab directors and managers. The NAS expert panel made the recommendation after a disturbing pattern emerged: When crime labs break the rules, through deliberate falsification or unintentional sloppiness, the results overwhelmingly favor prosecutors.

Read more here.

Thomas Cahill and Dominque Green: A Saint on Death Row

Thomas Cahill, author of A Saint on Death Row, the story of Dominque Green, was interviewed by Bob Edwards this weekend. Dominque Green was executed on October 26, 2004, in Texas for a murder he didn't commit. As I listened to the interview, I knew I'd have to write my thoughts to Bob Edwards. Here's what I sent him:

Dear Bob,

As I drove across the plains of eastern Colorado, I listened with greater intensity than usual to your interview with Thomas Cahill. My destination was the Arkansas Valley Correctional Facility, a Colorado State prison, my destination every weekend as I listen to your show. After listening to your interview, I turned into the prison parking lot, walked through the prison's reception center, processed through to the visiting room, and waited for my son Todd to appear. He's serving 31 years for a murder he didn't commit.

As I sat waiting for Todd, Cahill's claim that middle-class people don't face wrongful convictions echoed. We are a family firmly rooted in the middle class. I'm an English professor at the Air Force Academy, my wife of over 40 years is a marriage and family therapist, Todd's sister is a physician.

Once, in what seems a different life, I'd have accepted Cahill's comforting claim that our middle-class status insulated us from the potential of a wrongful conviction. Experience tells me, however, that his claim is a false comfort. Once, I’d read with horror the rising number of people who’d spent years in prison for crimes they hadn’t committed before being exonerated by the Innocence Project. But it was a detached horror, something like the horror of hearing about a shark attack while sipping a latte in Denver. The horror now is palpable.

The causes of false convictions are manifold: Among them are eyewitness misidentification, the use of unreliable forensic technologies, the mishandling of evidence, false confessions, investigatory incompetence or misconduct, prosecutorial misconduct, the use of unreliable informants or snitches, and bad lawyering. Although the poverty of a defendant increases the chances for a false conviction, a misstep at any point can send criminal investigations and prosecutions arcing towards a false conviction regardless of the defendant's wealth. Only by understanding how the process fails will we find sensible remedies for a system that too often convicts the innocent.

Like many other tragedies, false convictions fall disproportionately upon the poor and those who have suffered other forms of social injustice, like Dominique Green. But our case testifies to the enduring truth of Martin Luther King’s words from forty years ago: “Injustice anywhere is a threat to justice everywhere.” All of us need to understand the personal risk we assume when we ignore a significant injustice.

Regards,
Bill Newmiller

Evidence Integrity -- NOT

9News.com reports from Denver:

What a former laboratory technician said he did while working at a lab in Broomfield could call thousands of Colorado court cases into question.

Prosecutors in California are already reviewing more than 8,000 cases he might have worked on there, after a defense attorney found information about the technician's credibility.

"We are just in the early stages of figuring out the scope of what this man did," said Brian Connors, chief deputy at the Office of the Colorado Public Defender.

Thirty-year-old Aaron C. Layton worked at Forensic Laboratories in Broomfield in 2000 and 2001. The company has since relocated to Denver. It does drug and alcohol toxicology tests for numerous law enforcement agencies, county probation departments and even private businesses. While working at the lab, Layton testified in trials in Adams, Arapahoe, Jefferson and Weld Counties, and possibly others.

After Layton left the Colorado lab, employment records show he applied for a job with the police department in Columbus, Ohio in 2003. He failed the first polygraph
test. He then passed the second polygraph in which he admitted that while working at Forensic Laboratories, he never conducted second tests to confirm results. Layton said he claimed he did the confirmatory tests on his reports and said he even lied about it when on the stand.

The integrity of forensic evidence is fundamental to public trust in the judgments of our criminal system. In our son's case, crucial evidence became altered while in the state's possession, yet prosecutors were allowed to center their case on it. In George Orwell's classic work, 1984, the Ministry of Truth worked 24/7 to ensure that all recorded facts were adjusted to remain consistent with what authorities deemed to be the current reality. One has to wonder where our current reality is headed.

Witch Hunt Narrated by Sean Penn

Sunday, April 12th: Witch Hunt, a documentary film by Dana Nachman and Don Hardy and executive produced and narrated by Academy Award-winner Sean Penn will have its two-hour world television premiere on MSNBC at 10:00 p.m. ET.

In Witch Hunt, Penn tells the story of dozens of parents in Bakersfield, CA in the early 1980's, who are convicted of child molestation. Hard-working, blue-collar moms and dads with no criminal records all plead not guilty and all are convicted. The problem is that none of them actually are guilty.

From the accusations to the discovery of their innocence, Witch Hunt documents the experiences of these wrongly convicted parents and their children who falsely accuse them. Almost all of the children now say they were coerced to lie. Subsequently, their parents served anywhere from six to twenty years in prison, with the last person acquitted in 2004.

Here's the trailer for Witch Hunt:

Barney Brown, My FaceBook Friend

Earlier today, a new FaceBook friend, Barney Brown, wrote on my wall:

Perseverance truly is the key to successfully reaching the high mountain of justice....climbing this mountain gives meaning and purpose to one's life. Meaning leads to purpose and purpose leads to direction. The way will suddenly appear if you refuse to give up and keep pressing forward with conviction. I heard about your fight for justice for your son! Continue to love him unconditionally for it is so vital to fueling his ability to survive what he may be going through.

A Friend Always,

Barney Brown

Those sincere words mean even more when you consider Barney's personal journey. Take a minute and watch:

Evidence and El Paso County Colorado

Today's Denver Post revealed charges that prosecutors in El Paso County, Colorado, withheld key evidence in the murder trial of Tim Kennedy, who has served 13 years in prison for the 1991 murders of Jennifer Carpenter, 15, and her boyfriend Steve Staskiewicz in Colorado Springs.

Post Columnist Susan Greene compares the Kennedy case to that of former Alaskan Senator Ted Stevens. US Attorney General Eric Holder recently announced the dismissal of charges against Stevens because of similar withholding of evidence by Justice Department prosecutors. The question for Colorado Springs District Attorney Dan May is whether he'll have the courage and ethical fortitude of Eric Holder and provide the same level of justice for Tim Kennedy, who is obviously less famous, powerful, and far less wealthy than the former US Senator.

Greene's column is available at http://www.denverpost.com/search/ci_12074226.

The Exoneration of Alan Beaman

This week marks the 235th exoneration for the Innocence Project. Many other innocents have found freedom through other individuals and groups. Recently, the Center on Wrongful Convictions at the Northwester University School of Law discussed the case of Alan Beaman, who was released after serving 13 years for the murder of his girlfriend--a crime we now know with that he did not commit. Speakers in the video below discuss what his case and cases like it can tell us about how the system can make such terrible mistakes:


Free At Last: The Exoneration of Alan Beaman from Northwestern News on Vimeo.


In Beaman's case there had been other evidence indicating that another of victim's boyfriends, identified only as John Doe, had committed the crime--evidence that had not been available to the jurors.


Prosecutors conceded they “withheld” evidence on four points:

1. John Doe failed to complete a polygraph examination;


2. John Doe was charged with domestic battery and drug charges before Beaman’s trial;


3. John Doe physically abused his girlfriend on numerous occasions; and


4. John Doe’s use of steroids had caused him to act erratically.

According to Illinois Supreme Court Justice Thomas Kilbride, that evidence was “clearly favorable to (Beaman) in establishing (John) Doe as an alternative suspect.”


Beaman's case is of particular interest to us because Todd, like Beaman, relied upon an alternative suspect defense. Full information about the alternative suspect's failure to comply with his plea agreement, a history of sexual assault allegations against him, and other details that would impeach his credibility as a prosecution witness had been unavailable to Todd's defense.

Here's a hypothetical for you to consider: had you been a juror at Todd's trial how would your verdict have been affected by knowing that the alternate suspect

• had been accused--more than once--of sexual assault,
• had violated the conditions of his plea agreement, which kept him from being charged with murder,
• had a monetary interest in Todd's conviction and personally profited from it.

Exoneration for the Privileged, Update

Apparently I'm not the only one who wonders if exoneration was easier for Ted Stevens than for those less wealthy.

Joshua Holland writes today of the Steven's case that it, "highlights the fact that we have -- and have always had -- two justice systems, one for those with the means to work it and the other for the rest of us."

Take a minute to read Holland's contrast of Stevens' with those of others who have suffered even greater misconduct at the hands of authorities, and who have spent many years behind bars--even on death row--waiting for the "the cloud to be removed," as Stevens puts it.

Holland's bottom line:

There are many differences between the facts of Stevens' case and those of Madison Hobley, Troy Davis or dozens of similar ones. But if you believe that Davis, Hobley and those others -- and their families -- would have suffered through the same years of agony if they'd been Washington power-brokers with the best legal teams money could buy, then you just don't understand the true meaning of "American justice."

Exoneration for the Privileged

That Eric Holder's dropping of charges against former Alaska Senator Ted Stevens seems to many like the right thing to do because it validates process under the law.

I wonder though.... If Steven's case hadn't been in the limelight, if he'd been a regular Joe from your town, if he'd relied upon court appointed counsel....

Let's face it. Jaws dropped when Holder's action was announced. Why? Because it is extraordinarily rare for prosecutors to give up an ill-gotten conviction. Which is why so many innocent people spend so much time in prison.

Holder's commitment to ethical standards in prosecuting need to be applauded, but, more importantly, they need to be applied across the board, not just to Senators.

State Innocence Commissions

As the number of wrongly convicted grows each day, residents of more states are calling for the establishment of innocence commissions. This week's Detroit Free Press called for the establishment of an innocence commission in Michigan where "Wayne County Prosecutor Kym Worthy said her office has identified nearly 150 cases of convicted and imprisoned people that will require the retesting of evidence as part of the investigation into the now-closed Detroit police crime lab."

An innocence commission, according to Free Press editorial writer Jeff Gerritt, "would recommend ways, often costing little, to reduce wrongful convictions." Gerritt goes on to say, "The costs of improving the system are less than the costs of incarcerating and prosecuting the wrong people, as well as appealing those convictions and having the guilty go free to victimize other people."

Colorado, too, could be well served by an innocence commission of its own.

Senator James Webb Calls for Criminal Justice Overhaul

A quick video about Webb's proposal:

From Senator Webb's web site:

Senator Jim Webb (D-VA) today introduced bipartisan legislation, The National Criminal Justice Commission Act of 2009 (S.714), to create a blue-ribbon commission charged with conducting an 18-month, top-to-bottom review of the nation's entire criminal justice system and offering concrete recommendations for reform. Senator Arlen Specter (R-PA), Ranking Member on the Judiciary Committee, is the principal Republican cosponsor.

The high-level commission created by the National Criminal Justice Commission Act of 2009 legislation will be comprised of experts in fields including criminal justice, law enforcement, public heath, national security, prison administration, social Services, prisoner reentry, and victims' rights. It will be led by a chairperson to be appointed by the President. The Majority and Minority Leaders in the House and Senate, and the Democratic and Republican Governors Associations will appoint the remaining members of the commission.

"America's criminal justice system has deteriorated to the point that it is a national disgrace," said Senator Webb. "With five percent of the world's population, our country houses twenty-five percent of the world's prison population. Incarcerated drug offenders have soared 1200% since 1980. And four times as many mentally ill people are in prisons than in mental health hospitals. We should be devoting precious law enforcement capabilities toward making our communities safer. Our neighborhoods are at risk from gang violence, including transnational gang violence.

Webb continued: "There is great appreciation from most in this country that we are doing something drastically wrong. And, I am gratified that Senator Specter has joined me as the lead Republican cosponsor of this effort. We are committed to getting this legislation passed and enacted into law this year."

Coverage of Webb's proposal in the March 29, 2009, edition of Parade Magazine: http://webb.senate.gov/email/incardocs/parade_jimwebb.pdf.

Here's a link to the proposed legistlation: http://webb.senate.gov/email/incardocs/s.714.pdf.

Art and Truth in Justice

In his essay essay "The Origin of the Work of Art," Martin Heidegger he writes, "art lets truth originate." We're pleased that artist Pam Aloisa is using her artistry to illuminate truths in Todd's case. She writes about her "Todd Newmiller Series" of paintings:

The subject is based on the true life experiences of Coloradan Todd Newmiller, convicted and sentenced to 31 years in prison for murder. Todd, his family, and a growing number of friends and supporters steadfastly claim his innocence. Details of the crime investigation and trial have been discussed in the public forum and many issues remain unresolved. My personal interest was also piqued by the unfolding of tremendous personal drama in the case that also involved Todd's younger brother, Joel, a very strong set of parents, and a number of incompetent highly-paid professionals.

Here are three of the paintings and Pam's description of each:

"Todd's Cell"

“Todd’s Cell” is an interpretation of the claustrophobic space of a cell but with some odd distortions and juxtapositions to make the space enclose the viewer of the piece as well. You get a sense that the room is closing up around you. The colors are more modulated than the larger works; there is nothing very inviting or warm about the interior of this space.

"I Am Ahab"

"I am Ahab," is directly taken from the title of Todd Newmiller’s blog entries of writing from prison. The work features an abstract cubical with the narrow window that is standard in cells today. Outside the window is a slice of the life that is denied those inside: warmth, coziness, beauty (texture, color, nature), and family. Pages flutter, never reaching the floor or resolution. The endless boredom of incarceration is part of the message of this piece.

"Nothing to Say"

"Nothing to Say," is a satirical look at the family visits between Joel and Todd. In the blog site, Joel described these visits. Whiling away the hours, they draw and doodle, covering pages with funny cartoons and whimsical humor. In my translation, all pages are empty and no hands hold tools capable of making any marks. The imagery is startling and makes us uneasy.

More on Corrupt PA Judges

Ian Urbina writing in today's New York Times reports that "Things were different in the Luzerne County juvenile courtroom, and everyone knew it":

Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt. Lawyers told families not to bother hiring them. They would not be allowed to speak anyway."

Urbina reports further:

“The judge’s whim is all that mattered in that courtroom,” said Marsha Levick, the legal director of the Juvenile Law Center, a child advocacy organization in Philadelphia, which began raising concerns about the court to state authorities in 1999. “The law was basically irrelevant.”

In today's Times, Urbina asks, "How did two native sons, elected twice to the bench to protect children and serve justice, decide to do the opposite? And why did no one stop them?"

Good questions that still need answers. The red flags in Pennsylvania were clearly visible, yet the judge's scam, which brought in over 2.6 million dollars and permitted a lifestyle far more lavish than their judicial salary alone would, continued for years.

The case should raise red flags across the nation. What oversight, what accountability mechanisms exist in other communities to ensure that those who should be protecting us aren't just scamming us?

Setting the Record Straight

According to today's New York Times, "The Supreme Court of Pennsylvania on Thursday ordered the slate cleaned for hundreds of youths who had been sentenced by a corrupt judge."

The corrupt judges, Judge Ciavarella and Michael T. Conahan, conspired to collect kickbacks--over two and half million dollars--for sentencing juveniles to lengthy stays at private detention centers.

What kinds of kids received the bogus sentences? Kids like Hillary Transue, a stellar student who'd never been in trouble. Her offense: a My Space page that mocked her school's assistant principle. The page even acknowledged that its contents were but a joke. No joke, however, was her sentence--taken away in handcuffs to spend three months at a juvenile detention center.

Marsha Levick, a lawyer with the Philadelphia-based Juvenile Law Center, commented, “Our view is that every kid who appeared before Judge Ciavarella was denied an impartial tribunal.”

The judges got away with their scheme for five years, despite operating openly in Pennsylvania's criminal justice system.

Innocence Commission

Jeff Gerritt, writing in today's Detroit Free Press argues for the creation of an innocence commission in Michigian. Several states have already established such commissions and more are sure to follow as the awareness of wrongful convictions grows. Gerrett makes a point that is especially germane during these difficult economic times:

The costs of improving the system are less than the costs of incarcerating and prosecuting the wrong people, as well as appealing those convictions and having the guilty go free to victimize other people.

The idea of saving money by doing the right thing is a win for everyone.

Twelve Years Taken

When the innocent go to prison, the guilty go free. Hear Herman Atkins, a man exonerated by DNA evidence after serving 12 years in prison, tell his story of injustice and hope.

On June 27 Coloradans will have an opportunity to do something about the problem of wrongful convictions. Please go to http://marchforfreedom.org and join others who have volunteered.

Juror Education

Perhaps the most important duty a citizen must perform is as a juror, but does our system adequately train jurors to understand fundamental concepts such as "reasonable doubt" or "innocent until proven guilty"? Take a look at the video below, and let us know what you think.

Take a few minutes to read a short story about a young man, an old woman, a boy who suffers a horrible assault, and the tragic consequences of an ill-considered Supreme Court opinion….

Community Service

Frank hadn’t wanted to visit Alice, but he’d had little choice since it was his community service requirement. Despite the smell of old people dying, a couple hours in the nursing home seemed better than wearing a Day-Glo vest and scooping trash from the roadside. She asked him why he, a stranger, had come, a question that revealed a clarity he’d not expected. In an instant he realized that he’d no reason to be anything but honest with the old lady. He’d see her maybe a dozen times, and she was probably so forgetful, she’d not even remember his response, so he thought why sugar-coat.

"I got arrested for driving drunk. You’re my punishment."

As soon as the words left his mouth, he was sorry, but Alice’s quick response cut short what would have been a stammering apology. Ninety-two years had ravaged Alice’s body, but a long life had only strengthened and callused her mind.

"Honey, why don’t you go get my worthless daughter drunk? Maybe then sometime she’d stop by and see me." Alice’s wrinkles deepened as she continued. "On second thought, forget it. Marie would pass me by for some other senile old biddy just to spite me."

They both smiled, and so began Frank’s weekly visits. He visited Alice every Thursday, long after he’d fulfilled his community-service requirement. He even visited Alice when his thirtieth birthday fell on a Thursday. Alice had a present for him, a pair of trousers, a gaudy pair of trousers with broad vertical red and white stripes.

When Frank saw them, a single word fell from his lips: "stripes."

"Well, Frankie," Alice explained, "Marie got off her duff and took me shopping, and she hated these pants so much, I just had to buy them. She called them ‘Uncle Sam pants.’ I know they’re a little loud, but you could get some wear out of them. Besides, they’re wear-dated."

"Wear-dated?"

"Yeah. See the label in the waistband. It’s got the date of manufacture—just four months ago. Guaranteed to last three years. If they wear out before then, just call the company."

Frank knew the pants would last at least three years. If his place didn’t burn down, they’d hang forever in his closet, worn maybe once or twice a year as a joke.

Alice knew what Frank was thinking. "Listen, Mr. Fancy Pants," she began, her eyes beginning to catch fire. "Let an old woman tell you a few things you ought to know by now. First, back in the thirties.... We’d not dismiss anything serviceable. Second," her features relaxed, a smile curled on her lips, "a gift you buy for someone else is also a gift for yourself. Don’t deny me that. The look on Marie’s face when I bought them.... What do they say in the commercials?"

Alice could barely contain her laugher.

"Priceless!"

And her laugh exploded and crescendoed in a coughing jag that had Frank wondering if he should press the nurse’s call button. But the coughing receded and diminished into hacking chords.

Frank ventured a response. "Ok, I’m glad you got under Marie’s skin. And I will wear them. Maybe not often." Alice smiled.

"Tell me about the thirties."

"You don’t need to know. It was dust storms and foreclosures and old cars that wouldn’t run. One week we lived on nothing but wild berries and some carrots we took from someone’s field. There was nothing for you, especially if you were someone who’d already lost everything." Then a lightness came over Alice in the telling. "But I was young. I could believe it would get better. It was hard for the old people to believe."

Three days later, just before a nurse arrived with lunch, Alice had her last coughing jag, the muscles in her face relaxed for the last time and forever. The nurse on first seeing Alice thought how surprisingly youthful she looked as she lay still on the bed. Too still, the nurse realized as she checked her chart. She never told anyone about her first impression of Alice in death.

Frank sequestered himself for a month, until a friend persuaded him to get on with living, to join him Halloween night at a costume party. Frank put on the red and white striped pants and went as Uncle Sam.

The following Monday Frank dropped the trousers off at the cleaners. The clerk looked at them closely, and as soon as Frank left, called the police….

To find out why the clerk called the police and to read the rest of the story, go to http://bearingfalsewitness.com/CommunityService.asp#part2.

Non-DNA Wrongful Convictions

We've all heard about the use of DNA testing to demonstrate innocence, but what about cases where there isn't DNA evidence? The Center on Wrongful Convictions at Northwestern University of law has a podcast where Rob Warden discusses the challenges of non-DNA cases. He points out that "DNA evidence is present almost exclusively in sexual assault cases, but the causes of wrongful convictions--such as erroneous identifications, junk science, and false confessions--are found in all kinds of cases, from armed robbery to murder."

You can view a summary of his comments or listen to his interview with podcast host John Maki at http://innocencespeaks.libsyn.com/index.php?post_id=441240.

False Confessions

False confessions often play a role in convicting the innocent. Marty Tankleff's is such a case. Here's a summary of Marty Tankleff's case from Fortress Innocence:

Marty Tankleff had just turned 17 years old when he was arrested for the murder of his parents in their Long Island home. After hours of aggressive interrogation by a detective with a questionable background, a dubious and unsigned "confession" lead to Marty's conviction. He was sentenced to 50 years to life in prison, with the possibility of parole in 2040. "Wrongful convictions are an epidemic in our justice system, and people need to become educated on the rampant corruption that is a threat to all of us," says Marty.

After more than 17 years in prison, Marty's conviction was vacated by the New York State Appellate Division in December of 2007. On July 22, 2008, a judge signed off on a motion by Attorney General Andrew Cuomo to dismiss all charges against Marty. Cuomo announced he would not retry Marty, citing insufficient evidence to prove his guilt. A State Supreme Court Justice dismissed all charges against Marty Tankleff in the murder of his parents, and a report is still pending from the NY State Commission of Investigation about Suffolk County law enforcement for its conduct in Marty's wrongful conviction.

For more, see Marty's interview with Opra:

60 Minutes and Eye Witness Testimony

Tonight's 60 Minutes presented a story that documents the human tragedy of the wrongful conviction of Roland Cotton and explains how unreliable eye witness testimony can be. This segment should be required viewing for anyone who ever sits on a jury. The story appears in two parts, each about 13 minutes long.

Part 1:


Part 2:

Resistence to the Truth

The DNA exonerations from around the country begs questioning the reasons so many people have been wrongly convicted. In the video below, former Wayne State, now University of Michigan Professor of Law David Moran details the resistence authorities often have to recognizing valid claims of innocence.

Victims of the Same Injustice

In 1984, Jennifer Thompson-Cannino testified that Ronald Cotton was the man who raped her. Eleven years later, DNA evidence cleared him of the crime. Their book, Picking Cotton, is as its subtitle claims, an extraordinary memoir of redemption and forgiveness.

Ronald Cotton says of their experience, "we were the victims of the same injustice by the same man." And now, they are friends speaking out for reform in how crimes are investigated.

Take a look at the moving video trailer for the book:


The book provides the background for Leslie Stahl's report on 60 Minutes this Sunday on the scientific basis for the reform Cotton and Thompson-Cannino urge.

And NPR today offers a thougtful audio essay on finding forgiveness from Cotton and Thompson-Cannino as a part of its "This I Believe" series.

When a Prosecutor has a Conscience

Take the case of New York prosecutor Daniel Bibb. He was prosecuting a high profile case--the rehearing of two men convicted in the Palladium Night Club shooting--and came to the conclusion the two men charged were innocent.

The New York Times reports:

Spurred by the doubts about the case, the district attorney’s office had assigned Mr. Bibb to reinvestigate with two police detectives, an inquiry that took nearly two years and led to the hearing into whether the convictions should be overturned. In his interview last summer with The Times, Mr. Bibb said he had tried before the hearing to persuade his superiors that the convictions should be set aside, but was ordered to defend them in court anyway.

Instead, he said, he purposely threw the case. Defense lawyers involved in the hearing have confirmed that he quietly helped them. He tracked down hard-to-find witnesses who cast doubt on the convictions, and held back while cross-examining witnesses with long criminal records.

For Bibb, the fallout was that he became the target of an ethics investigation for having followed his conscience. Today's Times article reports that the investigation has concluded after 6 months that no basis exists for disciplinary action and the inquiry has been closed.

I share the opinion of David Luban of Georgetown University, who had praised Mr. Bibb and called the outcome a good one. He said that prosecutors need not always act as “full-fledged” adversaries. “Prosecutors are supposed to seek justice, not victory,” he said.

The Best There Is

Being victims of a wrongful conviction--and as family of one who has been wrongly conviction, we are victims--has cast us into a world that we'd previously not seen. We've become acutely aware of the scope of the wrongful conviction problem, and we've come to see much more broadly how deeply flawed our system is. That puts at odds with some, many of whom chant the mantra, "it's the best system of justice there is." Maybe. Maybe Moe is the wittiest of the Three Stooges, too.

Perhaps our system stacks up well against those in Russia, and China--though we incarcerate many more than either country. When it comes to killing prisoners, we're in the top five (along with China, Russia, Saudi Arabia, and Pakistan. We're ahead of Iraq).

But numbers don't tell the whole story. The experiences of people plainly told can reach out profoundly. Consider the Scott Sisters, Jamie and Gladys, who are serving double-life sentences after being convicted of taking part in a robbery that netted $11 and in which no one was injured. The details of their case provide strong evidence that the sisters, in fact, did not even participate in the crime, but they suffered conviction anyway.

Nancy Lockhart, who has worked tirelessly to free the Scott Sisters, recently shared some of Jamie's moving diary diary at http://www.dissidentvoice.org/2009/03/women-in-prison-where-doe-we-draw-the-line/. Here's a brief extract:

When I entered prison at the tender age of 22, I felt like my world was coming apart and life was not worth living. There were no more secrets and I had to strip naked in front of everyone, including men, because they thought it was funny. I was made to spread my buttocks and the officer looked. If I had a gun, I would have ended my life right then.

For Jamie and many others there is little comfort in notion that our system is the "best."

Evidence and the Supreme Court

The US Supreme Court heard oral arguments yesterday in a case brought by an inmate who has been denied testing of DNA evidence that the State of Alaska says would definitively prove either his innocence or guilt.

My question: why would the people of Alaska not want to know for sure if the inmate, William Osborne, was in fact the perpetrator? My guess is that the people--the real people, not the fiction that the prosecution represents--would want to know. Which leads to another question: why do citizens put up with prosecutors with little interest in seeking truth?

One might understand a rogue prosecutor here or there, someone like disgraced District Attorney Mike Nifong who went after the innocent members of the Duke Lacrosse Team. Or William "Bull" Peterson, who continued as DA for Ada Oklahoma, even after John Grisham exposed Peterson's shenanigans in the book Innocent Man. But here's a Supreme Court case--the state of Alaska joined by the US Department of Justice and by many other states arguing that there is no constitutional right to testing evidence that can determine innocence!

Freedom March

Here's why we march:

Thanks to genpop.org

Today, I had the opportunity to write about our situtation at genpop.org. Many thanks to genpop for giving me the chance to address its audience.

The mission of genpop is admirable:

genpop.org is a blog devoted to bringing prison issues to light. It is run by volunteers who want to bring positive change to the American Criminal Justice system for the benefit of both victims and perpetrators.

Take a trip to genpop, and browse its thoughtful commentary.

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.

Awareness Test

If you should sit on a jury, you will likely find yourself having to consider eyewitness testimony. How much faith should you put in it? The Innocence Project lists faulty eyewitness testimony as a leading cause of wrongful convictions. Remember that law enforcement personnel are in their own way witnesses, remembering what people say to them, how they respond with body language, details from a crime scene. How accurate are our perceptions? How aware are we? How aware are you? Click the video below and take the test:

Supreme Court Protects Prosecutors

The LA Times reports that the US Supreme Court has broadened the protection afforded prosecutors to further limit their responsibility when they convict innocent people. Here's a part of the article:

Reporting from Washington -- The Supreme Court on Monday threw out a lawsuit by a Los Angeles man wrongfully convicted of murder and gave district attorneys a broad shield against being sued even if their management mistakes send an innocent person to prison.Thomas L. Goldstein, a former Marine convicted in a 1979 shooting in Long Beach, spent 24 years in prison largely on the word of a heroin addict who had worked as a jailhouse informant for police and prosecutors. Edward F. Fink lied on the witness stand when he denied receiving a benefit for testifying for police, a judge found.

Goldstein was freed in 2004, and he sued former Los Angeles County Dist. Atty. John K. Van de Kamp and top deputy Curt Livesay, contending they allowed prosecutors to regularly use jailhouse informants and did not take steps to make sure they were telling the truth.

In Goldstein's case, the trial prosecutor did not know Fink was lying because other prosecutors in the sprawling district attorney's office did not share information.The Supreme Court mostly set aside the facts of Goldstein's case and focused on the potential harm of allowing top prosecutors to be sued. District attorneys who are managing teams of prosecutors should not face the fear they might be sued years later by resentful suspects, the justices said.

In the past, the court said trial prosecutors were entitled to absolute immunity for their courtroom work. In Monday's ruling in Van de Kamp vs. Goldstein, the high court extended that shield to cover district attorneys and other chief prosecutors for any actions that involve prosecutions and trials.

Last year, the U.S. 9th Circuit Court of Appeals in San Francisco said top prosecutors could be sued for "administrative" failures. The decision rejected Van de Kamp's claim of immunity and cleared Goldstein's lawsuit to proceed. But the Supreme Court rejected the distinction between administrative and management tasks and said management of trial-related information was a prosecution function.

Read the full article at http://www.latimes.com/news/nationworld/washingtondc/la-na-supreme-court-prosecute27-2009jan27,0,280362.story.

DNA Preservation

The Denver Post reports this week that state prosecutors support a bill to "fix" a requirement imposed last year to preserve DNA evidence associated with crimes. This "fix" needs a close look.

The Innocence Project of Florida has taken note and offers the following commentary:

An article in the Denver Post today details a move by the District Attorney to limit the rules requiring the preservation of DNA evidence.They are now, they say, "too sweeping to be practical," a charge which I find hard to believe. I would imagine that, were a police officer to err on either side, they would choose to err on the side of having too much evidence.

House Bill 1121 would change the law so authorities have to preserve DNA evidence only in the case of felonies or sexual-assault cases and only when that evidence could be relevant to a disputed issue in the case.The bill does, however, leave some checks in place, such as...requiring a hearing before discarding evidence and requiring evidence in murder and rape cases to be stored for the life of the defendant. Judicial oversight before the destruction of evidence is an important, yet necessary, inclusion in the bill. (That is, I can't imagine the police being granted the authority to destroy evidence on their own.)

As for the list of crimes with which the bill is concerned, I find it lacking. Rapes and murders will almost always have biological evidence involved, but a list that contains just those two crimes is far from comprehensive. Any crime in which the perpetrator leaves biological evidence that could be tested to reveal their identity is a case in which that evidence should be preserved. It's conceivable, for example, that DNA could be an issue in assaults, robberies, burglaries, and other crimes as well. Ted Tow, executive director of the Colorado District Attorney's Council, furnished an example of when it would be "impractical" to retain DNA evidence from a crime:

"There's a bar fight with 27 witnesses. It's not a whodunit," Tow said. "Pretty much anything anybody comes into contact with" is being stored under the current legislation.

This might seem like a good point, but it's a bit of a straw man. Every chair, railing and table that gets touched might not need to be preserved, but certainly the broken glass bottle wielded as a weapon, or the bloodstained shirt of the victim. Those seem like awfully probative pieces of evidence. Keep in mind, if the DA had their way, they would retain none of this evidence, since a bar fight is not a rape or a murder. The fact that there are 27 witnesses makes this hypothetical a bit amusing, but we should remember that witness testimony has certainly proven to be problematic before.

What happens when there's only 3 witnesses, or as many as 9 witnesses, as in the case of Troy Davis in Georgia, in which seven of the nine eyewitnesses recanted after the fact?

DNA is a powerful scientific tool used both to convict and exculpate suspects. Its importance and probative value can hardly be understated, but we hamstring ourselves as a society if we begin destroying biological evidence before it is
tested.