| Voice
of San Diego
The Weight of Proving Innocence
By KEEGAN KYLE Sunday, September 20, 2009| Resting in the corner of Justin Brooks' office at the California Western School of Law, a six-string acoustic guitar begs to be strummed. A few doors down the hall, an electric guitar waits for Jeff Chinn. Brooks and Chinn are not professional musicians. They lead the southern arm of the California Innocence Project, a pro bono line of legal help for thousands of prison inmates in the region. The pressure carried by the project's directors can be overwhelming
at times, so their guitars are kept at arm's reach. They occasionally escape
the challenge of their case files and teaching schedules through a rock
melody or major chord.
Eight inmates serving long sentences have been successfully exonerated by the project since it started at Cal Western 10 years ago. Those men served a combined total of 76 years in prisons before their freedoms were restored. On Friday, three of the exonerees will be traveling to San Diego for an alumni reunion and celebration of the project's 10th anniversary. And the number of exonerees to celebrate could soon become significantly larger. In the previous three months, the project helped three more inmates have their murder convictions overturned by Los Angeles, San Bernardino and federal judges. Combined, they have spent decades in the correctional system. Reggie Cole was the first inmate to have his life sentence overturned this summer. He spent 15 years in prison for the fatal shooting of Felipe Angeles. The Innocence Project successfully argued that Cole's prosecutors failed to release evidence to the defense and relied on faulty eyewitness testimony. A month later, the conviction of William Richards was overturned. He was convicted of murdering his wife in 1997 even after two trials that ended in hung juries. New DNA evidence shows that an unidentified man held the murder weapon, not Richards. And Rafael Madrigal had his murder conviction just overturned 10 days ago. He was convicted in 2002 of a gang-related shooting by a federal court. The Innocence Project convinced a judge that Madrigal's attorney failed to present an alibi to the court that would have placed him away from the shooting. Although the recent rulings are victories for the Innocent Project, the inmates have not been released from prison yet, pending the decision of prosecutors to appeal the rulings or schedule new trials. "I think for me, every time I get to meet an exoneree. ... I think it's their strength and their stories that keep me going," said Chinn. Most of the successful cases spearheaded by the Innocence Project have involved new expert testimony or the identification of poor witnesses in the original trial. In the most recent exoneration, a law student tracked down a key witness from 20 years ago who falsely testified that Tim Atkins confessed to murder. The witness recanted her testimony to the student and later to a judge, and the Los Angeles man was set free. "It felt like a thousand tons of weight was lifted from my shoulders," Atkins said. "This is a great program. There are a lot of people in California prisons who are innocent." Atkins first heard about the Innocence Project through a fellow inmate who believed Atkins was wrongfully convicted. The project will consider any inmate's case, but gives the most attention to people who always argued for their factual innocence, said Chinn, who oversees which cases will be pursued with further investigation. The group will take cases involving a guilty plea, but those are harder to overturn. Most of the inmates who mail letters to the Innocence Project have been sentenced to life in prison or death. They have likely exhausted all other options of appeal, which Brooks tries to emphasize to the project's participants. "If we say no, that person dies in prison. It's almost a certainty," Brooks said. "I can't sugar it up for you in any way. The truth is, we are the end of the line." Unlike normal criminal procedure, the burden of proof in a wrongful conviction case is placed on the accused. The accused is charged with providing evidence that points unerringly toward innocence. Even recanted witness testimony isn't always enough. The Innocence Project was unable to argue for the innocence of Delores Macias, of Los Angeles. She was convicted of drowning her niece 1994 through the eyewitness testimony of her four children. The victim's mother however -- the only other adult at the scene of the drowning -- testified that Macias was not involved. The mother's testimony was not enough to overrule the children and Macias was sentenced to serve 19 years to life in prison. The Innocence Project tracked down Macias' children and in 2007, three of them said they lied about the drowning and that their mother was not involved. A judge hearing the new testimony said the new information was still not enough to set Macias free. "That case until the day I die is going to haunt me," Brooks said. "It affects me profoundly. These wins are great for a little while and you feel really good about yourself. The losses are just horrendous." Brooks, a former defense attorney for inmates on death row, has directed the California Innocence Project at the California Western School of Law since the program's inception 10 years ago. He started the program as similar projects started to pop up across the country to help give his students more clinical experience. Brooks used to personally read the inmate's letters and help filter the caseload, but he said the work became too taxing. He decided to delegate more of the initial work to law students and volunteers so he could place more focus on the litigation. "We have to run this like a law office with constant cases coming in and still be mindful of the education for the students. That is the greatest challenge," Brooks said. "People are deconstructing cases, finding out what went wrong and fixing it. It's a good way to learn to become good lawyers." The student's work area is two small rooms down the hall from Brooks and Chinn and a few blocks north of the San Diego Superior Courthouse. The walls are covered with filing cabinets, storage boxes and candid shots of the project's alumni. At any point in time, the students are actively investigating 100 cases and 50 are in some stage of litigation. About a dozen students assigned to examine new cases conduct an initial investigation of the inmate's claims and present their findings at a twice-weekly seminar associated with the project. The group brainstorms new approaches to the case and tries to assess whether it has a chance in court. The project's leaders make the final decision. "The hardest part of the job is writing the letter that says we can't do anything for you," Brooks said. "A glimmer of hope, we'll run with it. Most of the cases there is not a glimmer of hope." Graduates of the law school and Innocence Project have gone on to work across all fields of criminal law. They become public defenders, prosecutors or work for the state attorney general. Some have been hired by San Diego County District Attorney Bonnie Dumanis as prosecutors. Dumanis is one of the few district attorneys who will sit down with the Innocence Project when it has issues with a conviction, Brooks said. "We don't always agree (on the case), but we always agree to look at everything," Dumanis said. "I think we have a duty to examine that. No one who is a prosecutor wants someone who was a wrongful conviction to stay in prison." In 2004, Dumanis asked the San Diego Superior Court to grant a petition from the Innocence Project and Kenneth Marsh to overturn his 1983 murder conviction. New expert testimony strongly questioned whether the medical evidence showed Marsh had been involved in the death of a young boy. Dumanis is the exception among California law enforcement, Brooks said. Most police officers and prosecutors fight the Innocence Project by obstructing its access to evidence and delaying court proceedings. "We're just seen as this huge nuisance that's coming to town that's going to undo people's work," Brooks said. "Almost everything we do throws a monkey wrench into the system. Part of me loves that, but it's also very aggravating." That's where the guitar steps in. Please contact Keegan Kyle directly at keegan. kyle@voiceofsandiego.org and follow him on Twitter: twitter.com/keegankyle. And set the tone of the debate with a letter to the editor.
Exonerated by DNA evidence, former inmates set out on long road
By Janet Roberts, Elizabeth Stanton
Christopher Ochoa graduated from law school five years out of prison and started his own practice in Madison, Wis. He has a girlfriend and is looking to buy a house. Michael Anthony Williams, who entered prison as a 16-year-old boy and left more than two years ago as a 40-year-old man, has lived in a homeless shelter and had a series of jobs, none lasting more than six months. Gene Bibbins worked a series of temporary factory jobs and got engaged but fell into drug addiction. Four and a half years after walking out of the Louisiana State Penitentiary at Angola, he landed in jail in East Baton Rouge, accused of cocaine possession and battery. The stories are not unusual for men who have spent many years in prison. What makes these three men different from other former inmates is that there are serious questions about whether they should have been in prison in the first place. The men are among the more than 200 prisoners exonerated since 1989 by DNA evidence — almost all of whom had been incarcerated for murder or rape. Their varied experiences are typical of what The New York Times found in one of the most extensive looks to date at what happens to those exonerated inmates after they leave prison. The Times worked from a list of DNA-exonerated prisoners kept by the Innocence Project, regarded as the most thorough record of DNA exonerations. The Times then gathered extensive information on 137 of those whose convictions had been overturned, interviewing 115. The findings show that most of them have struggled to keep jobs, pay for health care, rebuild family ties and shed the psychological effects of years of questionable or wrongful imprisonment. Typically, testing of blood or semen from the crime scene revealed DNA pointing to another perpetrator. The authorities in some of the cases have continued to insist they convicted the right men and have even fought efforts by some of them to sue for money. About one-third of them, like Ochoa, who was convicted of the 1988 rape and murder of a Pizza Hut worker in Austin, found ways to get a stable footing. But about one-sixth of them, like Bibbins, found themselves back in prison or suffering from drug or alcohol addiction. About half, like Williams, had experiences somewhere between those extremes, drifting from job to job and leaning on family, lawyers or friends for housing and other support. And in many cases the justice system has been slow to make amends. The Times researched the compensation claims of all 206 people known by the Innocence Project to have been exonerated through DNA evidence as of August 2007. At least 79, nearly 40 percent, got no money for their years in prison. Half of those have federal lawsuits or state claims pending. More than half of those who did receive compensation waited two years or longer for the first payment. Few of those who were interviewed received any government services after their release. Indeed, despite being imprisoned for an average of 12 years, they typically left prison with less help — prerelease counseling, job training, substance abuse treatment and housing assistance — than some paroled prisoners receive. "It's ridiculous," said Vincent Moto, exonerated in 1996 of a rape conviction after serving almost nine years in Pennsylvania. "They have programs for drug dealers who get out of prison. They have programs for people who really do commit crimes. People get out and go in halfway houses and have all kinds of support. There are housing programs for them, job placement for them. But for the innocent, they have nothing." The Times' findings are limited to those exonerated inmates the newspaper reached and do not represent the experiences of exonerated prisoners everywhere. Most of the 137 exonerated inmates researched by The Times entered prison in their teens or 20s, and they stayed there while their peers on the outside settled on careers, married, started families, bought homes and began saving for retirement. They emerged years behind, and it has been difficult to catch up. To be sure, many in the group were already at a disadvantage when they entered prison. More than half had not finished high school. Only half could recall holding a job for more than a year. Some admitted abusing drugs or alcohol or running with the wrong crowd. But dozens of them had been leading lives of stability and accomplishment. More than 50 had held a job for more than two years in fields as varied as nursing, mail delivery, welding, fishing, sales and the military. Five had college degrees, and 20 others had completed some college or trade school. Still, many of those were as unlucky as the most modestly educated when it came to finding work after their release. Most found that authorities were slow to wipe convictions from their records, if they did so at all. Even newspaper articles about their exonerations seemed to have had a negative effect. "Any time that anyone has been in prison, even if you are exonerated, there is still a stigma about you, and you are walking around with a scarlet letter," said Ken Wyniemko, who spent more than nine years behind bars in Michigan after a rape conviction. After his release in 2003, he spent two fruitless years job hunting, and he estimates he applied for at least 100 jobs. Today, he lives off money he received in a legal settlement. Given the hodgepodge of state compensation laws, an exonerated prisoner's chances of receiving any significant sum depend on the state where he was convicted and whether he can find a lawyer willing to litigate a difficult case. One man who served three years in California sued and won $7.9 million. Another, who had served 161/2 years in Texas, filed a compensation claim and received $27,850. President Bush and Congress moved in 2004 to improve the compensation the wrongly convicted received, adopting legislation that increased payments for people exonerated of federal crimes to $50,000 per year of imprisonment and $100,000 per year in death penalty cases. The legislation included a clause encouraging states to follow suit. But only one state — Vermont — has adopted a compensation law since the bill passed.
Schwarzenegger Vetoes Justice
By Radley Balko In 2004, the California state senate created the California Commission on the Fair Administration of Justice, a panel of current and former judges, prosecutors, defense attorneys, and police officials. The legislators were concerned about the recent spate of DNA exonerations and death row releases, including at least six cases in California since 1989 in which someone had been sentenced to death then exonerated or acquitted in a new a trial. A 2004 report in San Francisco magazine identified 200 cases over 15 years in which someone in California had been unjustly convicted, then freed—more than the number of exonerations in the next two states combined. The magazine estimated somewhere between 150 and 1,500 innocent people may still be sitting in the state's prisons. The state senate charged the commission with recommending reasonable reforms to guard against wrongful convictions. In 2006, the commission issued its recommendations. Three modest, sensible reforms made their way to the state legislature, and were passed by both the state's house and senate earlier this year. The reforms were backed by politicians from both parties. They were backed by both prosecutors and police officials who served on the commission. The reforms would added some formidable defenses against wrongful convictions in California. Naturally, they were opposed by the state's police organizations. And so last month, Gov. Arnold Schwarzenegger vetoed all three. The first recommendation would have required that prosecutors who use jailhouse "snitches" corroborate snitch testimony with other evidence. Jailhouse snitches are themselves convicted felons. They aren't trustworthy people. What's more, they have a greater incentive to lie, and to lie to get someone convicted, than perhaps anyone else a prosecutor could possibly put on the stand: They want to get out of prison. A 2004 study by Northwestern University of 111 death row exonerations since the death penalty was reinstated in 1973 found that the testimony of a jailhouse snitch played a role in 51 of the wrongful convictions. Jailhouse snitch testimony becomes particularly invidious when pared with mandatory minimum sentences. The only way someone facing a mandatory minimum sentence can get out early is to provide information that helps prosecutors win more convictions. It's an unfortunate structure of incentives that encourages dishonesty from informants, and encourages prosecutors to suborn it. The California commission's recommendation wouldn't have barred the use of jailhouse informants, as some activists have recommended. It would only have required that prosecutors corroborate such testimony with other sources before using it at trial. Gov. Schwarzenegger vetoed the bill, arguing that, "When that kind of testimony is necessary, current criminal procedures provide adequate safeguards against misuse." In just six years of operation, the Northern California Innocence Project has helped exonerate 20 people in Northern California alone who were convicted in whole or in part based on testimony from jailhouse snitches. The second reform would have required police to videotape interrogations in violent crime investigations. This too is a sensible, modest reform. Law enforcement advocates have opposed taping interrogations in the past by arguing that police officers sometimes use untoward or coercive tactics that while legal, might appear unseemly to jurors. (Suggesting that federal agents videotape interrogations was one reason the Justice Department says U.S. Attorney Paul Charlton was let go in the recent firings scandal). If that's the case, then let prosecutors put on evidence explaining to jurors why such tactics are necessary, and why they won't lead to false confessions. Then let juries decide if such tactics are acceptable. A tamper-proof, thorough videotaping of all interrogations would not only discourage police misconduct while questioning witnesses, it would also cut down on false accusations of police misconduct. Some may find it hard to believe, but overly coercive interrogation techniques can and have lead to false confessions over the years, particularly if the suspect is a juvenile or is mentally impaired—although even a normal adult can falsely confess if subjected to enough duress and abuse. In nearly a quarter of the DNA exonerations over the last 15 years, the wrongfully convicted suspect either incorrectly made incriminating statements to police, or out and out confessed to a crime he didn't commit. Schwarzenegger vetoed this recommendation, too, with the cryptic explanation that video recordings would "deny law enforcement the flexibility necessary to interrogate suspects." No. It would deny them the "flexibility" to extract confessions through improper coercion, at least without an impartial, documented record of the questioning; and it would allow a jury to properly weigh a confession against the environment in which it was given. The commission's third recommendation was aimed at fixing the problem of false eyewitness testimony, which has contributed in part or in whole to more than three-quarters of known wrongful convictions. This recommendation should have been even less controversial than the other two. It would have established a task force to look into eyewitness testimony, and set up a series of voluntary guidelines for the state's police departments to follow to ensure that police lineups aren't overly suggestive. One recommendation, for example, was that the police officers administering photo or in-person lineups be unaware of the actual identity of the suspect, to prevent them from giving an eyewitness subtle (or not-so-subtle) clues. Schwarzenegger vetoed this one, too, arguing that even voluntary state guidelines would get in the way of police departments setting their own lineup policies based on their own "unique local conditions." Gov. Schwarzenegger's stubborn refusal to adopt even these modest criminal justice reforms is perplexing, particularly given the spate of conscience-shocking exonerations and wrongful convictions in the news. There's really nothing we can say to someone who spent a decade in prison or was days from execution for a crime he didn't commit. "Sorry" isn't going to cut it. One would think that the least we could do is put in the proper safeguards to prevent it from happening again. Former state Attorney General John Van de Kamp, who chaired the commission, told the San Francisco Chronicle that all three recommendations were "modest bills which were based on the best science and the best practices available." He added, "once again the power of California's law enforcement agencies to block needed justice reform." Our criminal justice system is in dire need of repair. The spate of DNA exonerations has at least opened many Americans' eyes to the very real possibility that we're sending innocent people to prison—and even to death row. But the number of cases in which DNA was found at the scene of a crime was properly preserved, and where testing could establish guilt or innocence, is vanishingly small. DNA testing has exposed the flaws in our system, but those flaws don't exist only in cases where DNA was significant—they also exist in the overwhelming majority of cases where it isn't. That's why we need to apply the lessons we've learned from DNA exonerations to other cases. And it's why Gov. Schwarzenegger's refusal to adopt even modest reforms
is so regrettable.
Radley Balko is a senior editor with Reason magazine. He publishes the weblog, TheAgitator.com.
Legal advocates blast Schwarzenegger for vetoing three justice bills
Former California Attorney General John Van de Kamp blasted law enforcement groups and Gov. Arnold Schwarzenegger on Wednesday for blocking legislation aimed at protecting defendants from convictions for crimes they did not commit. "I'm embarrassed for the law enforcement community," Van de Kamp said before convening a public hearing on criminal justice reforms at Santa Clara University. Speakers included Rick Walker of East Palo Alto, who spent 12 years in prison for a murder he didn't do. Walker, who recently obtained a $2.75 million settlement in a wrongful-conviction lawsuit against Santa Clara County, said he is starting a non-profit group to help exonerated prisoners rebuild their lives. "When I make a mistake, I pay for it," he said. "When the state of California made a mistake, they made my attorney jump through hoops to get compensation." Earlier this year, a commission chaired by Van de Kamp sponsored three bills that would have set tighter rules for police and prosecutors by requiring corroboration of testimony by jailhouse informants, electronic recording of police interrogations in violent crimes and the creation of new guidelines for lineups and photo arrays. The California Commission on the Fair Administration of Justice, created by the Legislature to propose legal reforms, is made up of judges, police, defense attorneys and prosecutors. But the legislation was opposed by statewide groups representing police and district attorneys. The governor vetoed all three measures last weekend, saying they were too broad and would unnecessarily tie the hands of investigators and prosecutors. "This bill would enact a broad solution to a perceived problem that arises in very few criminal cases," Schwarzenegger said in a statement rejecting the bill requiring corroborating evidence to back up testimony by jailhouse informants. Scott Thorpe, a spokesman for the state district attorney's association, said the bill was unnecessary because juries are already given instructions on how to evaluate such testimony. But supporters of the measure, including the ACLU and state Senate Majority Leader Gloria Romero, D-Los Angeles, cited numerous cases of defendants wrongly convicted after inmates gave false testimony in exchange for lenient treatment in their own cases. Van de Kamp, a Democrat and former Los Angeles County district attorney, said he was especially disappointed because the commission had modified its proposals to meet law enforcement concerns. Panelist and retired Santa Clara County district attorney George Kennedy agreed. "I think it's good that he gives great weight to the views of law enforcement," Kennedy said of the governor. "But these bills were good bills and they were very reasonable." Local police are already adopting similar policies, added Kennedy, who predicted the trend will continue but said it would be better to have consistent rules statewide. The commission, which is also studying attorney misconduct, the death penalty and other subjects, heard testimony Wednesday about legal obstacles faced by people who are wrongly convicted. California used to provide funding for groups like the Northern California Innocence Project, based at Santa Clara University's Law School, but now such groups rely entirely on private donations. A single case can cost the Innocence Project hundreds of thousands of dollars to re-examine evidence and pursue appeals, said project director Kathleen Ridolfi, a Santa Clara law professor. She said her staff rejects hundreds of applications for every person they agree to help. Walker, whose conviction was overturned after a family friend dug up new evidence and brought it to Kennedy's office, said people who are wrongly convicted suffer mentally and physically in prison. But unlike parolees, who receive counseling and other state services, he said exonerated inmates get virtually no support when released. "We should at least give them the same services that we afford people who did something wrong," he said. Contact Brandon Bailey at bbailey@mercurynews.com or (408) 920-5022.
California Progress Report August 16, 2007. 2 comments. Topic: When the Innocent Go to Prison in California, the Guilty Go Free By Natasha Minsker DNA evidence has proven that innocent people are being convicted and sentenced to prison in far greater numbers than we ever imagined. Each time an innocent person is wrongfully convicted, the harm falls not only on that person but also on the community and the crime victims, as each wrongful conviction leaves the true perpetrator on the streets to hurt more people. Convicting the guilty while protecting the innocent is the most fundamental goal of our criminal justice system. Yet, all too often, we fall short. • Tuesday night, Stephen Colbert interviewed the 200th DNA exoneree, Jerry Miller. Colbert gave him a card on behalf of “society” saying “Sorry.” • Here in California, Herman Atkins spent 12 years in prison for a crime he didn’t commit—watch his story. So far, no one has apologized to Herman, but a jury did just award him $ 2 million because of misconduct by the Riverside police in his case. DNA evidence has proven some of our mistakes, but it is not the magic bullet that will prevent these mistakes in the future. DNA evidence is available in less than 15% of cases. That’s why we need to fix the problems that send innocent people to prison. Three bills currently in the California Legislature would help prevent the most common causes of wrongful conviction: • Senate Bill 511 (Alquist) will require the electronic recording of police interrogation in cases involving homicides and other violent felonies. • Senate Bill 756 (Ridley-Thomas) will require the appointment of a task force to draft voluntary guidelines for the conduct of police line-ups and photo arrays to increase the accuracy of eyewitness identifications. • Senate Bill 609 (Romero) will require the corroboration of testimony by jailhouse informants. The commission established by the California Senate to investigate the problems with the criminal justice system has recommended all three of these reforms. The California Commission on the Fair Administration of Justice—a group of law enforcement officers, prosecutors and defense attorneys—passed a series of unanimous recommendations and these three bills represent the most basic and most urgently needed changes. All three bills simply implement the “best practices” of law enforcement across the state and the country. More than three dozen California departments already record interrogations and recording is required by statute or rule of the supreme court in several states including New Mexico, Texas, and Iowa. The Los Angeles District Attorney already requires corroboration for jailhouse informants and the Texas Legislature recently passed a corroboration requirement for some informants. Best practices for eyewitness identification have been voluntarily adopted in Santa Clara County, and are required by law or by rule of the state attorney general in other states, including West Virginia and North Carolina. These jurisdictions have adopted these practices because they help law enforcement officers do their jobs: convict the guilty. The reforms proposed here are small steps. For example, unlike other states, the electronic recording bill would not lead to exclusion of confessions that were not recorded; it merely requires a cautionary instruction to the jury. The eyewitness identification guidelines will be voluntary. And the informant bill applies only to jailhouse informants, the most unreliable. These bills will by no means end wrongful convictions in California. But they will be a significant step forward for California’s criminal justice system. If states like Texas and West Virginia can do it, why can’t we? Natasha Minsker is an attorney with the ACLU of Northern California
who focuses on criminal justice issues.
Comments
I guarantee you that Riverside and San Bernardino counties have NOT adopted these measures. Regularly young men are intimidated, lied to and coerced into prison sentences because of threats by DA Investigators. Once you experience the Justice system here and in many parts of California you will realize that guilt or innocence has nothing to do with it. They scare these young men into pleading guilty to things they have not done. Propositions that we have voted into law let law enforcement get away with anything. We have given them this abuse of power. We have been fooled by legislators for the last 30 years that use the "tough on crime" soapbox, into passing laws that enhance sentences and give law enforcement the power to say things in court that are completely unsubstantiated and are just their opinions. Juries hear this miss information and take it as fact. Young men are afraid to go to trial because of this practice. I would guess there are thousands of our kids in prisons doing far more time than necessary that were intimidated by law enforcement to accept a plea deal. They threaten Life in Prison for everything. They over charge these young men with several different felonies that are completely erroneous and they get away with it. These young men are being bullied by older more experienced adults in law enforcement that are looking for pay raises and promotions. They don't care about your innocent. It happened to my family. We had never had anyone get into trouble until my son. What we saw in our courts was a complete sham of the legal system. I will never trust law enforcement again for any reason. Judges go along with the DA's because DA's can cause the judges to lose their seats. Judges that go against them are not judges for long. They simply organize the Law enforcement union against them when re-election comes along. People have no idea about the power they have. Hope and pray that no one you care about ever gets into trouble. We don't let our kids grow out of bad behavior anymore, we throw them in prison where they are sure to become the criminals they made them out to be. DNA just proves that Lawenforcement has in the past made people guilty so they could claim they solved a crime. The crime was theirs and innocent lost decades of their lives. You can't get that back. It is fight to even get DNA testing if your are incarcerated for life. Law Enforcement and courts fights tooth and nail to block inmates requests for DNA testing in their cases. Why, because they know what they have done to people. Morris1 August 16, 2007 at 09:55 AM Natasha- Thank you for your article. I would also like to see you and the ACLU weigh in on the 3 strikes law and our enhancement laws that absolutely target certain groups. Crime is crime no matter who you are. Enhancements should never happen to specific ethnic groups which these laws clearly do.
Court denies appeal of rape sentence
WASHINGTON (AP) - The Supreme Court on Monday turned down the case of
a Michigan man who said his sentence for rape was increased because he
repeatedly maintained his innocence.
After Haskell's comments, the judge that "I don't see any remorse in this case. None. And it's bothersome to me. I took the bench today not knowing what I was going to do to you. ... The only question I have is how much above the minimum I should go." Lawyers for Haskell said the Fifth Amendment privilege against self-incrimination also applies to the sentencing phase of a case and asked the justices to decide whether the judge violated Haskell's right to due process. The court denied the appeal without comment. The Livingston County, Mich., prosecutor's office denied that Haskell was subjected to a longer sentence based on his claim of innocence. "While there sometimes can be a fine line between taking into account a lack of remorse and punishing a defendant for claiming innocence, the trial court did not cross that line here," the county prosecutors said in papers filed with the Supreme Court. " The case is Haskell v. state of Michigan, 06-137.
A Prosecution in Virginia
Saturday, August 26, 2006; A20
VIRGINIA prosecutors this week brought belated charges against a man named Kenneth Maurice Tinsley in the 1982 rape and murder of a Culpeper woman named Rebecca Williams. Mr. Tinsley, a serial rapist already serving life in prison, was connected to the Williams killing by DNA testing. And his prosecution would be simply a happy resolution of a long-cold case, except for one thing: A man named Earl Washington Jr. served more than 17 years in prison and came within nine days of being executed for this crime. Mr. Washington's case is a tragedy in a criminal justice system that at every stage refused to admit the magnitude of its error. Mildly retarded, Mr. Washington was convicted almost entirely on the basis of a disturbingly weak confession -- one that a civil jury later found had been fed to him by investigators. He sat on death row until DNA tests in 1993 cast serious doubt on his conviction by showing that someone other than he or the victim's husband had had intercourse with Williams before she was killed. Then-Gov. L. Douglas Wilder responded by commuting his sentence to life in prison, but did not pardon him, arguing that the evidence of his innocence remained inconclusive. Only in 2000, after a second round of DNA testing, did then-Gov. James S. Gilmore III finally pardon him. Yet even then, he acknowledged merely that a jury would have acted differently had it seen these test results, not that Mr. Washington was innocent. What's more, while some of the state crime lab's tests that year identified DNA from Mr. Tinsley on the victim's blanket, the lab erroneously excluded him as a DNA contributor in the samples taken from her body. Not until still another round of testing, this one in connection with Mr. Washington's civil lawsuit, was Mr. Tinsley's DNA found in samples taken from the victim's body. The lessons of the Washington case will be familiar to anyone who has watched the flood of wrongful convictions come to light in recent years. Not all confessions are real; DNA testing should be liberally and swiftly available whenever doubts arise. Most important, there is no place for arrogance in a state's criminal justice system. In any number of cases pending now, including some that seem all too weak, Virginia authorities are certain they have the right man locked up. They were once that certain about Earl Washington, too.
Freed inmates look for more: Courts disapprove of compensation for the
exonerated
LOS ANGELES -- Herman Atkins spent eight years in a California prison for a rape he didn't commit. Gary Kazanjian / Associated Press STARTING OVER: Herman Atkins
They have argued heading into his new trial this month that his innocence is irrelevant and should be kept from the jury. Even the DNA evidence that absolved him of the brutal 1986 rape of a Lake Elsinore shoe store clerk -- evidence that showed a one in 300 billion possibility of guilt -- may carry little weight. His chances of winning any money for what the 40-year-old son of a California Highway Patrol officer calls a police frame-up that ruined much of his adult life are far from certain. The issue over what Atkins needs to show to win reflects the hazardous legal landscape facing people nationwide who have been erroneously convicted. Being exonerated does not automatically bring compensation: The onus is on the ex-convicts to prove their cases under a patchwork of sometimes tough legal requirements, even in states such as California that have unjust conviction laws. Since DNA evidence started clearing convictions in 1989, the compensation issue has become more acute. The new technology has helped release 144 people nationwide between 1989 and 2003, according to a University of Michigan study. But the law often leaves them and the hundreds of other wrongfully convicted defendants without any other remedy. "They often have no recourse because our legal procedures don't accommodate that kind of case," said Adele Bernhard, a professor at New York's Pace University School of Law. "If the police hit Atkins with a flashlight, that's easy," Bernhard added. "But if police action results in you getting put in jail for 20 years, the law is far behind." Twenty-one states and the District of Columbia allow limited compensation, but many have tight filing deadlines, require pardons and make the exonerees prove they were "actually" innocent, as opposed to being released on a legal technicality. California allows $100 per day in compensation. But that's after proving innocence -- a challenge many cannot meet, especially when there is no DNA evidence and the government puts up opposition. Of the 37 California claims that went to a hearing since 2001, eight have been successful, said Kathleen Beasley, spokeswoman for the state Victim Compensation and Government Claims Board. Exonerees can sue under federal civil rights laws, but they require proof of deliberate misconduct by police, such as fabricating evidence. "If the police didn't do something underhanded, the civil rights laws can't help," said University of Pennsylvania Law School professor David Rudovsky. This, plus the difficulty of proving police wrongdoing, leaves only a "distinct minority" able to sue, he added. And then there is the general resistance to second-guessing convictions, even erroneous ones. In a recent Oklahoma civil rights case involving Arvin McGee, jailed for 14 years for rape until he was exonerated by DNA evidence, the government's attorney told the jury, "there is no constitutional guarantee that only the guilty will be convicted." The jury didn't agree, awarding McGee $14.5 million. Atkins, who a judge released in 2000, said he had never been to Lake Elsinore before he was arrested. "I just thought it was mistaken identity and would all be resolved," he said. "Then I realized they were trying to railroad me." Riverside County lawyers refused to comment about the Atkins case, citing county policy. According to court papers filed by Atkins' attorneys, a detective fabricated a police report implicating Atkins in the rape and suppressed information that favored him. Yet if Atkins can't prove such misconduct, he'll be out of luck. Just getting through nearly five years of hard-fought litigation is an achievement. Most lawyers are hesitant to take on such cases because the costs are so high. Atkins is represented on a contingency basis by Peter Neufeld, a well-known criminal and civil rights lawyer and co-director of the Innocence Project, a New York legal clinic that works to release prisoners with DNA evidence. One famously successful case involved an Illinois man named James Newsome. It took several million dollars' worth of time and costs to carry Newsome through a civil rights trial after he was pardoned for an Illinois murder. He had served 15 years of a life sentence. Philip Beck, best known for representing President Bush against Al Gore in 2000, used an innovative technique to get the Chicago jury to award Newsome $15 million. His team erected a life-sized replica of Newsome's tiny jail cell in the courtroom. With the mock-up in sight, Beck had Newsome tell "horror stories of what it was like." Beck then reminded the jury that as bad as prison can be, "it's a hundred times worse when you know you're innocent." Emotional suffering is usually the main element of damages in wrongful incarceration cases, said Rudovsky, the University of Pennsylvania professor. "The question is, What would I pay to avoid that experience?' " he said. Atkins said no amount of money could make up for his lost time with his sons or his mother, who died soon after his release. He said he wants his case to change a police culture of improper practices. "It's not a mistake," he said referring to his conviction. "It's a way of life and that way of life has to change." Oregon prosecutor Josh Marquis agreed that convictions based on government misconduct should be compensated, but said such cases might be a slippery slope. "What do we do when we let someone out of prison early and they go kill
someone? Should the family come after the government and say pay me?" he
asked. "The government doesn't make such payments, and they probably shouldn't
have to."
http://www.mercurynews.com/mld/mercurynews/news/local/14893483.htm Posted on Sat, Jun. 24, 2006
New trial for convicted
man
A federal judge has awarded a new trial to Michael Hutchinson, the Milpitas man who was convicted in 1999 of robbing a 7-Eleven, ruling that his attorney improperly failed to pursue photographic evidence that cast doubt on Hutchinson's guilt. The order from U.S. District Judge Jeffrey S. White came six years after Hutchinson's appellate lawyer first went to court contending that photographs taken by a store surveillance camera showed Hutchinson was too tall to be the robber captured on tape. Hutchinson's case was featured as part of the Mercury News' ongoing series, ``Tainted Trials, Stolen Justice,'' documenting questionable conduct in Santa Clara County jury trials. The newspaper hired an expert to conduct the analysis Hutchinson was denied when the 6th District Court of Appeals rejected his appellate attorney's request for money to analyze the photographs. Lawrence Gibbs, one of two attorneys who initially took the case for free after Hutchinson first appealed to federal court, said, ``This should have happened six years ago. Michael Hutchinson spent six years in prison because the court would not give a couple thousand dollars to his attorney.'' The 39-year-old Hutchinson, in a telephone call from prison, said simply, ``I'm shocked.'' In a 37-page opinion issued late Thursday, White ruled that trial attorney Dennis Kazubowski failed to give Hutchinson adequate representation because he did not investigate the photographic evidence. White also found Kazubowski's explanations, given at a hearing last month, not credible. The judge gave the state of California 60 days either to retry Hutchinson or release him. The state now must decide whether to appeal and ask that Hutchinson remain in prison. The Mercury News discovered the case during reporting for its ``Tainted Trials, Stolen Justice'' series, which reviewed five years of appellate decisions in Santa Clara County criminal jury trials. Based on the refusal of the 6th District to grant money to explore evidence that Hutchinson could have been wrongly convicted, the Mercury News hired photogrammetry expert Gregg Stutchman, who concluded that the man in surveillance photographs appeared substantially shorter than the defendant. Stutchman became a critical witness in a new effort Hutchinson launched in federal court to overturn the verdict. Stutchman testified at the hearing last month before White, a San Francisco judge appointed by George W. Bush, who said Stutchman's testimony ``was very persuasive.'' The Mercury News series documented repeated instances of questionable conduct by prosecutors, defense lawyers, trial judges and appellate justices during Santa Clara County criminal trials. Such conduct, the newspaper found, increases the small possibility of wrongful conviction. Hutchinson's case was one of three detailed in a March article on the vagaries of eyewitness identification, a form of evidence that experts consider particular troubling, because it is both persuasive with juries and too often unreliable. Earlier this month, the 6th District Court of Appeals reversed the conviction in another one of those cases. The court found that Jeffrey Rodriguez did not receive adequate representation in his case. Hutchinson's case began Oct. 25, 1998, when a man wearing a stocking mask burst into the convenience store, hopped the counter and took $200. He was arrested and charged after the store clerk identified him from a photographic lineup. On Friday, Santa Clara County Deputy District Attorney Ed Fernandez said he remained ``absolutely convinced'' of Hutchinson's guilt and said it ``boggles my mind'' that Stutchman's conclusions were considered scientifically valid. White's ruling ``is not a get-out-of-jail-free card,'' added Fernandez, who said he is preparing for a possible retrial. The key issues before White were whether the expert analysis cast doubt on Hutchinson's guilt and whether Kazubowski failed Hutchinson by not exploring that defense before the trial. Hutchinson, according to trial testimony, is 6 feet 1 or 6 feet 2. Stutchman studied the apparent height of the robber as he took a full stride running through the store's door and testified that the robber appeared at least 6 inches shorter. The two sides disagree on whether that difference could be explained by the gait and posture of someone in motion, but the state did not call an expert to contest Stutchman's testimony. White this week ruled that posture would not account for the large discrepancy in height. At trial, prosecutors built their case on the testimony of the store clerk, as well as the store manager and a Milpitas policeman. Neither the manager nor the officer was present at the robbery, but both thought the man in the photo resembled Hutchinson. On the witness stand, the clerk went beyond her initial statement to police and testified that she saw Hutchinson outside the store moments before the robbery and watched him put the mask on his head. Hutchinson testified he had been wrongly accused. He had a prior conviction for assault with a deadly weapon and had been arrested for domestic abuse. But since getting out of prison, he had worked as a pastor, counseling young people. A poster for his church, bearing his photograph, was on display at the 7-Eleven. Kazubowski on Friday said ``I know I did my job'' in representing Hutchinson. He testified last month that he made a tactical decision not to seek expert testimony about the surveillance photograph, after he examined it and concluded that the robber captured on film was his client. But White rejected that explanation,
writing, ``Neither his recollection nor his credibility can be credited
here.''
Contact Fredric N. Tulsky at rtulsky@mercurynews.com.
The Independent http://news.independent.co.uk/world/americas/article361812.ece The Innocence Project: Guilty until proven innocent Capital punishment in the US is under the microscope and lawyers using
the latest forensic science techniques have found justice wanting. By Andrew
Gumbel
Cameron Todd Willingham is the first and only man executed in the United States for suspected arson after his three children, all under the age of three, burned to death at their home in Corsicana, about an hour's drive south-east of Dallas, Texas, in December 1991. Willingham testified at his trial that he narrowly escaped the fire himself, that he tried and failed to rescue his children, that he then made repeated attempts to call for help and re-enter the building, at one point smashing a window with a pool cue in the hope of reaching the children's bedrooms. Not everyone, though, believed him. One of his neighbours, who knew he was a drifter, knew he had trouble holding down a job and knew about his fondness for going out to drink beer and play darts, thought he hadn't done nearly enough to save his family. When the fire marshals examined the aftermath of the fire, they too found some anomalies and began to wonder if Willingham hadn't set it deliberately. Particularly damning at his trial was the testimony of the deputy state fire marshal, Manuel Vasquez, who examined the burn patterns on the wood floor and the melted aluminium threshold piece, as well as the way certain pieces of glass has cracked into crazy patterns in the heat, and told the jury there was no way this was the result of an accident. Someone, presumably Willingham, had sprinkled fuel and set light to the building. "The fire tells a story," Mr Vasquez said on the stand at Willingham's trial. "I am just the interpreter. I am looking at the fire, and I am interpreting the fire. That is what I know. That is what I do best. And the fire does not lie. It tells the truth." Willingham was duly convicted of murder and, after 12 years on death row, was executed by lethal injection in February 2004. Now, though, compelling evidence has emerged that Mr Vasquez did not in fact know what he was talking about. None of his testimony has passed muster with a panel of acknowledged arson experts, which has gone over it in detail. And without his testimony, the case against Willingham is left essentially baseless. Unlike most capital convictions, where a defendant's protestations of innocence raise the question of who else might have committed the crime, this case may well have constituted no criminal behaviour whatsoever, just one more ghastly element in an unspeakable family tragedy. That is certainly what Willingham asserted as he went to his death. "The only statement I want to make is that I am an innocent man, convicted of a crime I did not committed," he said. "I have been persecuted for 12 years for something I did not do." Thanks to the work of the New York-based Innocence Project - a team of defence lawyers who put dubious capital convictions under the microscope of modern technology - his protest is looking increasingly believable. The group commissioned a real expert's report using advances in the understanding of arson evidence which will make uncomfortable reading for the prosecution in the Willingham case. Their findings will this week be handed to the Texas Forensic Science Commission, which is constitutionally bound to launch its own investigation and report back to Governor Rick Perry, the man who gave the green light to Willingham's execution. The Innocence Project's report will be hard to argue with. It was compiled by four of the country's leading arson experts who have testified on behalf of defence and prosecution in previous cases. Their conclusion: Willingham's conviction was based on bad science, and none of the evidence should have ever led investigators to believe the fire was set deliberately. "While we have no doubt that ... witnesses believed what they were saying, each and every one of the indicators relied upon have since been scientifically proven to be invalid," the report says. And so the stage is set for the next big showdown over the death penalty in the US. Already, the pace of executions in most states has slowed because of doubts in recent years about the safety of capital convictions. The release of death row inmates shown by DNA evidence and other methods to have been innocent of the crimes of which they were accused is steadily increasing. And a host of other doubts are being introduced. California's execution machine is at a standstill because of evidence that the lethal drugs administered during executions merely mask the pain felt by the dying prisoner instead of eliminating it. Reports emerged from Ohio on Tuesday of convicted murderer Joseph Lewis Clark taking 90 minutes to die after the team trying to deliver a lethal injection had problems finding a suitable vein. The Project's lawyers have been instrumental in forcing courts to take new DNA-testing technology into account when reviewing convictions. Since 1992, when the Innocence Project first began, 175 prisoners have been exonerated, including 14 who spent time on death row. It was the Project's lawyers who first questioned the arson evidence. They assembled the panel of experts and commissioned the report. More strikingly, they were also responsible for lobbying the Texas authorities and bringing about the existence of the Forensic Science Commission in the first place. As the Innocence Project itself put it in a statement, the release of its report "marks the first time in the nation that scientific evidence showing an innocent person was executed has been submitted to a government entity that is legally obligated to investigate cases, reach conclusions and direct system-wide reviews to determine the extent of the problem". In other words, it could conceivably be the beginning of the end of the death penalty in Texas. It also spells political trouble for Governor Perry as he faces an election race this November. Many of the arson panel's conclusions had been reached even before Willingham's execution, by a Cambridge-educated arson expert called Gerald Hurst, who passed on his findings to the Governor's office. As he told an investigative team from the Chicago Tribune at the time: "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." It does not appear, however, that Dr Hurst's findings were taken seriously by either the Governor's office or the state Board of Pardons and Paroles. Barry Scheck, one of the two principles of the Innocence Project, who remains perhaps most famous for his role in defending O J Simpson, said he had established through open records requests that the Hurst report had indeed been properly filed before the execution. "Neither office has any record of anyone acknowledging it, taking note of its significance, responding to it or calling any attention to it within the government," he said. "The only reasonable conclusion is that the Governor's office and the Board of Pardons and Paroles ignored scientific evidence and went through with the execution." The prosecution, meanwhile, presented last-minute, second-hand evidence that Willingham had confessed to his estranged wife, something she later said was untrue. Perhaps most poignant for Willingham's surviving relatives is that, at the time of execution, a similar case was going through the Texas legal system, that of Ernest Willis, who had been sentenced to death for his alleged role in setting a fatal fire in west Texas in 1987. Dr Hurst examined his case, too, found the forensic evidence similarly flawed and said he saw no evidence of arson. Willis was able to have his case reopened and dismissed. He walked out of death row a free man seven months after Willingham's execution. All this adds up to a potentially explosive cocktail of political and social issues. Texans may be more attached than most Americans to the death penalty, but even they tend to draw the line at putting innocent people to death. One candidate in the governor's race, the humourist and former singer Kinky Friedman, does not appear to have been harmed by his record of campaigning on behalf of death row prisoners. One of Friedman's campaign lines is: "Texas: 50th in education, first in executions... how's that working for you?" If the political tide is turning slowly, the sense of discomfort in the professional world of forensics and legal analysis is starting to be overwhelming. Copycat Innocence Projects have been set up. The original one, meanwhile, has been at the forefront of denouncing errors and unprofessional behaviour at forensic crime labs around the country, most notably in Virginia, Texas and Ohio. The group has also made disturbing findings about the functioning of the criminal justice system more generally. The Innocence Project has found that the single biggest cause of wrongful convictions is mistaken eyewitness identification testimony. In more than a third of cases, forensic science has also been misapplied in some way, with experts presenting "fraudulent, exaggerated, or otherwise tainted evidence to the judge or jury". Six years ago, the state of Illinois issued a blanket commutation of all its death sentences after it was established that 13 people on death row were in fact innocent of the crimes of which they were committed. (In that case, it was journalism students at Northwestern University who did the legwork.) Much more recently, New York state chose not to reinstate its death penalty law. The backlash against capital punishment may be coming too late for Willingham, but his case remains a potent weapon in the hands of the Innocence Project and other campaigners. If Texas, of all states, is forced to acknowledge it killed an innocent man, then the death penalty may be on its way to extinction. Cameron Todd Willingham is the first and only man executed in the United States for suspected arson after his three children, all under the age of three, burned to death at their home in Corsicana, about an hour's drive south-east of Dallas, Texas, in December 1991. Willingham testified at his trial that he narrowly escaped the fire himself, that he tried and failed to rescue his children, that he then made repeated attempts to call for help and re-enter the building, at one point smashing a window with a pool cue in the hope of reaching the children's bedrooms. Not everyone, though, believed him. One of his neighbours, who knew he was a drifter, knew he had trouble holding down a job and knew about his fondness for going out to drink beer and play darts, thought he hadn't done nearly enough to save his family. When the fire marshals examined the aftermath of the fire, they too found some anomalies and began to wonder if Willingham hadn't set it deliberately. Particularly damning at his trial was the testimony of the deputy state fire marshal, Manuel Vasquez, who examined the burn patterns on the wood floor and the melted aluminium threshold piece, as well as the way certain pieces of glass has cracked into crazy patterns in the heat, and told the jury there was no way this was the result of an accident. Someone, presumably Willingham, had sprinkled fuel and set light to the building. "The fire tells a story," Mr Vasquez said on the stand at Willingham's trial. "I am just the interpreter. I am looking at the fire, and I am interpreting the fire. That is what I know. That is what I do best. And the fire does not lie. It tells the truth." Willingham was duly convicted of murder and, after 12 years on death row, was executed by lethal injection in February 2004. Now, though, compelling evidence has emerged that Mr Vasquez did not in fact know what he was talking about. None of his testimony has passed muster with a panel of acknowledged arson experts, which has gone over it in detail. And without his testimony, the case against Willingham is left essentially baseless. Unlike most capital convictions, where a defendant's protestations of innocence raise the question of who else might have committed the crime, this case may well have constituted no criminal behaviour whatsoever, just one more ghastly element in an unspeakable family tragedy. That is certainly what Willingham asserted as he went to his death. "The only statement I want to make is that I am an innocent man, convicted of a crime I did not committed," he said. "I have been persecuted for 12 years for something I did not do." Thanks to the work of the New York-based Innocence Project - a team of defence lawyers who put dubious capital convictions under the microscope of modern technology - his protest is looking increasingly believable. The group commissioned a real expert's report using advances in the understanding of arson evidence which will make uncomfortable reading for the prosecution in the Willingham case. Their findings will this week be handed to the Texas Forensic Science Commission, which is constitutionally bound to launch its own investigation and report back to Governor Rick Perry, the man who gave the green light to Willingham's execution. The Innocence Project's report will be hard to argue with. It was compiled by four of the country's leading arson experts who have testified on behalf of defence and prosecution in previous cases. Their conclusion: Willingham's conviction was based on bad science, and none of the evidence should have ever led investigators to believe the fire was set deliberately. "While we have no doubt that ... witnesses believed what they were saying, each and every one of the indicators relied upon have since been scientifically proven to be invalid," the report says. And so the stage is set for the next big showdown over the death penalty in the US. Already, the pace of executions in most states has slowed because of doubts in recent years about the safety of capital convictions. The release of death row inmates shown by DNA evidence and other methods to have been innocent of the crimes of which they were accused is steadily increasing. And a host of other doubts are being introduced. California's execution machine is at a standstill because of evidence that the lethal drugs administered during executions merely mask the pain felt by the dying prisoner instead of eliminating it. Reports emerged from Ohio on Tuesday of convicted murderer Joseph Lewis Clark taking 90 minutes to die after the team trying to deliver a lethal injection had problems finding a suitable vein. The Project's lawyers have been instrumental in forcing courts to take
new DNA-testing technology into account when reviewing convictions. Since
1992, when the Innocence Project first began, 175 prisoners have been exonerated,
including 14 who spent time on death row.
As the Innocence Project itself put it in a statement, the release of its report "marks the first time in the nation that scientific evidence showing an innocent person was executed has been submitted to a government entity that is legally obligated to investigate cases, reach conclusions and direct system-wide reviews to determine the extent of the problem". In other words, it could conceivably be the beginning of the end of the death penalty in Texas. It also spells political trouble for Governor Perry as he faces an election race this November. Many of the arson panel's conclusions had been reached even before Willingham's execution, by a Cambridge-educated arson expert called Gerald Hurst, who passed on his findings to the Governor's office. As he told an investigative team from the Chicago Tribune at the time: "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." It does not appear, however, that Dr Hurst's findings were taken seriously by either the Governor's office or the state Board of Pardons and Paroles. Barry Scheck, one of the two principles of the Innocence Project, who remains perhaps most famous for his role in defending O J Simpson, said he had established through open records requests that the Hurst report had indeed been properly filed before the execution. "Neither office has any record of anyone acknowledging it, taking note of its significance, responding to it or calling any attention to it within the government," he said. "The only reasonable conclusion is that the Governor's office and the Board of Pardons and Paroles ignored scientific evidence and went through with the execution." The prosecution, meanwhile, presented last-minute, second-hand evidence that Willingham had confessed to his estranged wife, something she later said was untrue. Perhaps most poignant for Willingham's surviving relatives is that, at the time of execution, a similar case was going through the Texas legal system, that of Ernest Willis, who had been sentenced to death for his alleged role in setting a fatal fire in west Texas in 1987. Dr Hurst examined his case, too, found the forensic evidence similarly flawed and said he saw no evidence of arson. Willis was able to have his case reopened and dismissed. He walked out of death row a free man seven months after Willingham's execution. All this adds up to a potentially explosive cocktail of political and social issues. Texans may be more attached than most Americans to the death penalty, but even they tend to draw the line at putting innocent people to death. One candidate in the governor's race, the humourist and former singer Kinky Friedman, does not appear to have been harmed by his record of campaigning on behalf of death row prisoners. One of Friedman's campaign lines is: "Texas: 50th in education, first in executions... how's that working for you?" If the political tide is turning slowly, the sense of discomfort in the professional world of forensics and legal analysis is starting to be overwhelming. Copycat Innocence Projects have been set up. The original one, meanwhile, has been at the forefront of denouncing errors and unprofessional behaviour at forensic crime labs around the country, most notably in Virginia, Texas and Ohio. The group has also made disturbing findings about the functioning of the criminal justice system more generally. The Innocence Project has found that the single biggest cause of wrongful convictions is mistaken eyewitness identification testimony. In more than a third of cases, forensic science has also been misapplied in some way, with experts presenting "fraudulent, exaggerated, or otherwise tainted evidence to the judge or jury". Six years ago, the state of Illinois issued a blanket commutation of all its death sentences after it was established that 13 people on death row were in fact innocent of the crimes of which they were committed. (In that case, it was journalism students at Northwestern University who did the legwork.) Much more recently, New York state chose not to reinstate its death penalty law. The backlash against capital punishment may be coming too late for Willingham, but his case remains a potent weapon in the hands of the Innocence Project and other campaigners. If Texas, of all states, is forced to acknowledge it killed an innocent man, then the death penalty may be on its way to extinction.
http://www.latimes.com/news/local/la-me-goldstein19feb19,1,15070.story?coll=la-headlines-california After 25 Years, Woman Sees Son in His Fight for Freedom
February 19, 2004 Thomas Goldstein came into the Long Beach courtroom in shackles. Geri Goldstein sat in the front row, a cane leaning beside her. Only about 10 feet separated a mother and son who had not laid eyes on each other in more than 25 years. They didn't get much further than hello. "Hey," the prisoner said to his 76-year-old mother. Geri Goldstein said hello back. A bailiff intervened. In a preliminary hearing on murder charges, he said, conversation between a defendant and spectator is prohibited. "I'll see you tomorrow," Goldstein told her son. She will see him behind bars, where Thomas Goldstein has been since he was convicted in 1980 of the murder of John McGinest on a Long Beach street. He has remained in custody despite court rulings that overturned his conviction on the grounds that prosecutors denied him a fair trial. As prosecutors and defense lawyers wrangled Wednesday over whether Goldstein should be tried again for the murder, his mother sat quietly and listened, dressed in a black pantsuit and raincoat, her face, like her son's, framed by glasses and short, silver hair. "It was quite a shock," the elder Goldstein said afterward, leaning on a cane in the courtroom hallway. "I had never seen him with gray hair. He looks exactly like his older brother." It was the first time she had seen her son since he left Topeka, Kan., for California in the mid-1970s. Stubborn in his insistence on his innocence, Goldstein for 24 years had been adamant that no one from his family visit him behind bars. "Once his grandmother came to visit him," said Geri Goldstein, "He was very upset. He cried. He just felt it was so terribly degrading." This time, Goldstein appeared to beam as he caught sight of his mother in court. The last time around, the trial had been quick. Thomas Goldstein was living in a garage in a transient neighborhood, attending college, fresh from a stint in the Marines in Vietnam. McGinest was shot down near the apartment. Police arrested Goldstein and he was charged with murder. There was no physical evidence to tie him to the killing. But a man who had briefly shared a cell with him at the Long Beach city jail, Edward Fink, testified that Goldstein had confessed to him one night. A second man, Loran Campbell, said he had seen the killer run past his window and that Goldstein was the man. "It just seemed like no time at all that he was sentenced," Geri Goldstein said. "He kept insisting nothing was going to happen. I even spoke to the lawyer, who said there was no reason to come out." Then her son called and told her the bad news: He was going to prison for 27 years to life. But he was sure it all would be reversed soon. "He was primarily concerned about me," she said. "I was hysterical." He forbade anyone to visit him in jail, but Goldstein wrote his mother regularly, and she sent him a portable typewriter. His first job was as a janitor, which gave him access to the library and its law books. Thus began a long, obsessive quest to vacate his conviction. Late last year, that quest finally appeared to be paying off. A federal appeals court ruled that prosecutors had violated Goldstein's rights. Fink, it turned out, was a police informant who had testified in a secret deal to get a lighter sentence. Campbell, the judges said, had expressed doubts about his identification of Goldstein and had been improperly coached by police. Defense lawyers had been told nothing. Goldstein refused overtures from prosecutors suggesting that he could be released if he pleaded guilty to lesser charges. Geri Goldstein guesses he got the stubborn streak from her. "I'm quite a stubborn person," she said. "Once I make up my mind to do something, I do it." Last month, the Los Angeles district attorney's office decided to try Goldstein again for murder. Wednesday's hearing was the next step in the process of bringing the case back to court. Fink and Campbell are dead. Prosecutors will not try to reuse the testimony of Fink, who has been heavily discredited. At Wednesday's hearing, they said they plan to call Campbell's stepson and ex-wife, saying the two can back up the original identification of Goldstein as the killer. The proceedings were over in half an hour. Goldstein went back to jail, pending another hearing March 3, and his mother back to her hotel room in Long Beach. She will line up today for visiting hours at Men's Central Jail in downtown Los Angeles. There will be much to catch up on. Her son's time as a free man in California — about four years, according to court testimony — is a black hole to Geri Goldstein. "It's funny, I can remember when he was in school; I can remember his bar mitzvah, and when he was in the Marines," Goldstein said in a telephone conversation before leaving Topeka for her son's hearing. "I can't recall much of the California time at all." Thomas Goldstein was born in Houston, the second son of Art Polanko and the former Geraldine Havens. But the marriage was on the skids even as Geraldine, known as Geri, waited out her pregnancy. She left her husband, and a year later married Lawrence Goldstein. The family stayed in Houston until Thomas was a teenager and there were four children, then moved to Kansas City, Kan. It was a strict upbringing, down to firm adherence to Shabbat dinner on Friday nights. "I can remember him out of breath, trying to get home on Friday night for dinner, because I insisted they be home for Friday night dinner and then services," Geri Goldstein said. Thomas Goldstein joined the Cub Scouts and eventually became a Sea Scout, she said. He loved sailing and swimming, and passed Kansas City's grueling lifesaving course. He came to identify heavily with his stepfather, an ex-Marine. So it was no surprise that Tom chose the Marines after graduating from Shawnee East High School in 1967, she said. "We couldn't really afford to send him off to college, and he thought going into the service would help him out," she recalled. Before he left for the Marines, Tom took a year and a half to quell his wanderlust. Like many of his generation, he headed for California, hopping into the Triumph TR-3 his parents had given him. At least one point on his itinerary was Downey, Geri Goldstein recalled. That's where his biological father, a man he had never known, lived. It was not a Kodak moment, Geri Goldstein said of her son's reunion with Polanko, who has since died. She said she would rather let the memory die. But the trip west, and a stint at basic training in Camp Pendleton, seared California's sun-drenched coast in Tom Goldstein's memory, his mother recalled. When he returned from Vietnam, he hung around Topeka, working in his parents' warehouse business, but he soon grew restless and headed west again, sometime around 1976, she said. "He hated the winter months after being overseas in the heat," she said. "He decided he wanted to be someplace warm. So he went to California." Court records show that Thomas Goldstein attended Long Beach City College sporadically, spending most of his time alone in a cheap apartment in a transient neighborhood, drinking heavily and living off veterans benefits. His mother knew of none of this — not even his arrests for public drunkenness and disturbing the peace while he lived in Long Beach. "We stayed in touch," she said. "He would write, let me know about his grades and how it was going along…. He was so busy working at any job he could get, and then with school, that he didn't have much time for friends." She knows little of his son's life in California, but with a mother's faith, she remains convinced he is innocent of murder. "There wasn't even any circumstantial evidence," she said. "There was
nothing…. He was going to school, working. He didn't have enough time to
get into such trouble." Plus, she said, "He wasn't that stupid."
http://www.nytimes.com/2004/04/19/national/19DNA.html Study Suspects Thousands of False Convictions By ADAM LIPTAK Published: April 19, 2004 A comprehensive study of 328 criminal cases over the last 15 years in
which the convicted person was exonerated suggests that there are thousands
of innocent people in prison today.Almost all the
But the study says they benefited neither from the intense scrutiny that murder cases tend to receive nor from the DNA evidence that can categorically establish the innocence of people convicted of rape. Prosecutors, however, have questioned some of the methodology used in the study, which was prepared at the University of Michigan and supervised by a law professor there, Samuel R. Gross. They say that the number of exonerations is quite small when compared with the number of convictions during the 15-year period. About 2 million people are in American prisons and jails.The study identified 199 murder exonerations, 73 of them in capital cases. It also found 120 rape exonerations. Only nine cases involved other
crimes. In more than half of the cases, the defendants had been in prison
for more than 10 years.The study's authors said they picked
Only 20 percent of the murder exonerations involved DNA evidence, and almost all of those were rape-murders.The study, which will be presented Friday at a conference of defense lawyers in Austin, Tex., also found that very different factors contributed to wrongful convictions in rape and murder cases. Some 90 percent of false convictions in the rape cases involved misidentification by witnesses, very often across races. In particular, the study said black men made up a disproportionate number of exonerated rape defendants.The racial mix of those exonerated, in general, mirrored that of the prison population, and the mix of those exonerated of murder mirrored the mix of those convicted of murder. But while 29 percent of those in prison for rape are black, 65 percent
of those exonerated of the crime are.Interracial rapes are, moreover, uncommon.
Rapes of white women by black men, for instance,
"White Americans are much more likely to mistake one black person for
another than to do the same for members of their own race."On the other
hand, the study found that the leading causes of wrongful
A separate study considering 125 cases involving false confessions was published in the North Carolina Law Review last month and found that such confessions were most common among groups vulnerable to suggestion and intimidation. "There are three groups of people most likely to confess," said Steven
A. Drizin, a law professor at Northwestern, who conducted the study with
Richard A. Leo, a professor of criminology at the
"Those are the cases where there is the greatest pressure to obtain confessions," he said, "and confessions are often the only way to solve those crimes."Professor Drizin said that videotaping of police interrogations would cut down on false confessions.The authors of the Michigan study offered dueling rationales for the murder exonerations, and both reasons, they said, were disturbing. There may be more murder exonerations, they said, because the cases attract more attention, especially when a death sentence is imposed. Death row inmates represent a quarter of 1 percent of the prison population but 22 percent of the exonerated. That suggests that innocent people are often convicted in run-of-the-mill
cases. Indeed, the study says, "if we reviewed prison sentences with the
same level of care that we devote to death sentences, there
The study offered a competing theory, as well. Mistakes, it said, may
be more likely in murder cases and far more likely in capital cases. "The
truth," the study concludes, "is clearly a combination of
The study calls every nullification of a conviction by a governor, court
or prosecutor declaring a person not guilty of a crime an exoneration.
In Astoria, Ore., Joshua Marquis, the district attorney for Clatsop County,
said that many of the people exonerated under the study's definition may
nonetheless have committed the crimes in question, though the evidence
may have become too weak to prove that
"The real number of people on death row exonerated in the sense of being actually innocent in the modern era of the death penalty is about 25 to 30," Mr. Marquis said. The Michigan study put the number at 73.He added that even the error rate suggested by the study was tolerable given the American prison population."We all agree that it is better for 10 guilty men to go free than for one innocent man to be convicted," Mr. Marquis said. "Is it better for 100,000 guilty men to walk free rather than have one innocent man convicted? The cost-benefit policy answer is no."At the University of Michigan,
Professor Gross said that was the wrong calculus."No rate of preventable
errors that destroy people's lives and destroy the lives
Court to consider Davis’ appeal in private
The Atlanta Journal-Constitution Monday, October 06, 2008 The U.S. Supreme Court apparently needs more time to look at an appeal from death-row inmate Troy Anthony Davis, whose claims of innocence have attracted international attention. The high court issued orders Monday addressing the appeals of numerous
cases, but none as to whether it will accept or reject Davis’ appeal. Instead,
the court, in a listing on its docket, said it will meet in a private conference
on Friday to consider Davis’ appeal.
• Metro and state news On Sept. 23, the court halted Davis’ execution less than two hours before it was to be carried out. The court’s nine justices then met in conference on Sept. 29 to decide whether to accept the appeal. Now, they will meet once more to discuss the case. The court did not say when it will issue a decision. Davis, who claims he is innocent, is asking the court to order a judge to grant him a hearing. Since Davis’ trial, seven of nine key prosecution witnesses to testify against him recanted their testimony. Davis sits on death row for the Aug. 19, 1989, murder of Mark Allen MacPhail, a 27-year-old officer shot dead after he responded to the wails of a homeless man being pistol whipped in a Burger King parking lot. The father of two did not have time to draw his gun before being shot three times. Davis is appealing a ruling by a sharply split Georgia Supreme Court. His lawyers are asking the U.S. Supreme Court to declare that the Eighth Amendment’s ban on cruel and unusual punishment bars the execution of the innocent and requires at least a court hearing to assess recantation evidence. “It’s obviously a very important case and the justices are still considering it,” Carl Tobias, a University of Richmond law professor, said. “Maybe the justices are split about it and want more time to consider it.” It is not unusual, Tobias said, particularly given the backlog of cases
appealed during the summer months, for the court to take several weeks
to decide whether to hear an appeal such as Davis’.
I am delighted to share some good news with you! Troy Davis received a stay of execution based on a new last-minute appeal filed this past Wednesday to the federal appeals court in Atlanta. As a result, he will not be executed on Monday, October 27th, as originally scheduled. Your action has succeeded in putting a spotlight on Troy's case worldwide and bringing about this victory. At least 300,000 individuals have written letters in support of Troy. Additionally, prominent leaders such as former President Jimmy Carter, the Pope, and Archbishop Desmond Tutu have all called for justice in this case. Yesterday, Amnesty International organized a Global Day of Action in which hundreds of activists in dozens of countries around the world came together to stand in solidarity for Troy. From Atlanta to Seattle, New York to Paris and Milan– hundreds of supporters gathered at rallies wearing T-shirts and holding signs that read "I am Troy Davis." On Wednesday, the European Legislature issued a statement calling for Troy's execution to be halted. While we pause to celebrate this good news, we cannot forget that Troy still faces the very real possibility of execution—despite the fact that no physical evidence tied him to the 1989 murder of a police officer in Savannah, GA, and that 7 of the 9 eyewitnesses have since recanted their testimony. This case has taken many twists and turns. On September 12th, the Georgia Board of Pardons and Paroles denied clemency for Troy Anthony Davis, and scheduled his execution for September 23rd. The U.S. Supreme Court stayed Davis' execution just hours before it was scheduled to take place. But in deciding not to hear his case, the court lifted its stay and a new execution date was set for Monday, October 27th. Global Day of Action On Thursday October 23, in 30 cities around the globe, activists stood up for justice and in support of fairness for Troy Davis. We now await the decision of the federal appeals court, which will determine whether Troy's case warrants a new hearing. We believe their ruling could happen at any time during the next month. I want to thank you again for playing such an essential part in Amnesty International's efforts to bring justice for Troy Davis. That's why I hope you'll take a minute right now to join Amnesty International and help us keep up this fight. To stay informed about Troy Davis' case and to find out how to take
additional actions, please visit:
In solidarity, Sue Gunawardena-Vaughn
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