Friday, December 22, 2006

Guest Shot: Prosecutors Gone Wild

December 12, 2006

America's Injustice System is Criminal


The Christmas season is a time to remember the unfortunate. Among the most unfortunate people are those who have been wrongly convicted and imprisoned.

The United States has a large number of wrongfully convicted. There are many reasons for this. One is that the US has the largest percentage of its citizens imprisoned of all countries in the world, including China. One of every 32 US adults is behind bars, on probation or on parole. Given a wrongful conviction rate, the larger the percentage of citizens in jails, the greater the number of wrongfully convicted.

According to the International Center for Prison Studies at King's College in London, the US has 700,000 more of its citizens incarcerated than China, a country with a population four to five times larger than that of the US, and 1,330,000 more people in prison than crime-ridden Russia. The US has 5% of the world's population and 25% of the world's prisoners. The American incarceration rate is seven times higher than that of European countries. Either America is the land of criminals, or something is seriously wrong with the criminal justice (sic) system in "the land of the free."

In the US the wrongful conviction rate is extremely high. One reason is that hardly any of the convicted have had a jury trial. No peers have heard the evidence against them and found them guilty. In the US criminal justice (sic) system, more than 95% of all felony cases are settled with a plea bargain.

Before jumping to the conclusion that an innocent person would not admit guilt, be aware of how the process works. Any defendant who stands trial faces more severe penalties if found guilty than if he agrees to a plea bargain. Prosecutors don't like trials because they are time consuming and a lot of work. To discourage trials, prosecutors offer defendants reduced charges and lighter sentences than would result from a jury conviction. In the event a defendant insists upon his innocence, prosecutors pile on charges until the defendant's lawyer and family convince the defendant that a jury is likely to give the prosecutor a conviction on at least one of the many charges and that the penalty will be greater than a negotiated plea.

The criminal justice (sic) system today consists of a process whereby a defendant is coerced into admitting to a crime in order to escape more severe punishment for maintaining his innocence. Many of the crimes for which people are imprisoned never occurred. They are made up crimes created by the process of negotiation to close a case.

This takes most of the work out of the system and, thereby, suits police, prosecutors, and judges to a tee. Police do not have to be careful about evidence, because they know that no more than one case out of twenty will ever be tested in the courtroom.

Prosecutors do not have to make decisions about which cases to prosecute or risk losing cases. By coercing pleas, prosecutors can prosecute every case and boast of extremely high conviction rates.

When prosecutors had to decide which cases to prosecute, they had to examine the evidence and to investigate the defendant's side of the story. No more. The evidence seldom comes into play. In place of a determination of innocence or guilt, prosecutors negotiate with lawyers the crimes to which a defendant will enter a plea.

Prosecutors have lost sight of innocence and guilt. What we have today is a conveyor belt that convicts almost everyone who is charged. Every defense attorney knows that today prosecutors can purchase testimony against a defendant by paying a "witness" with money, dropped charges, or reduced time to testify against the defendant. Many prosecutors become highly annoyed at any disruption of the plea bargain conviction process. A defendant that incurs the prosecutor's ire is certain to be framed on far more serious charges than a negotiated plea.

Going to trial is no guarantee that an innocent person will be acquitted. Prosecutors routinely withhold exculpatory evidence and suborn perjury. Generally, jurors trust prosecutors and are unaware of their inventory of dirty tricks. Few jurors can tell the difference between bogus evidence and real evidence. For example, psychologists and criminologists have established beyond all doubt that eye-witnesses are wrong 50% of the time. Yet, jurors usually believe eye-witnesses unless they think the witness has it in for the defendant and is lying.

Prosecutors--and there are still a few--who are meticulous about their cases and fair to defendants show poor results compared to the high convictions attained by prosecutors who run plea bargain mills and frame-up factories. Today's criminal justice (sic) system is results orientated, not justice orientated.

In the past judges could give light sentences to people they believed had been wrongfully convicted. But "law and order conservatives" have taken sentencing discretion away from judges. Today prosecutors hold all the cards.

Many conservatives believe that prisons are full of hardened criminals who liberal judges are determined to release to prey upon society. In truth, the largest percentage of prisoners are drug users who are victims of the conservatives' "war on drugs." Drug offenses account for 49 percent of federal prison population growth between 1995 and 2003. Many of these prisoners are mothers arrested for drug use. The greatest victims of the drug laws are the children whose mothers are incarcerated.

As females become sexually active at younger and younger ages, state legislatures have stupidly raised the age at which it is legal to engage in sexual activity. Today, a significant percentage of new prisoners are young men imprisoned for engaging in sexual activity with teenage girls. In the US, criminal justice (sic) has more to do with ruining people than with punishing criminals.

I have written often about wrongful convictions. We know that wrongful conviction is a serious problem when the advent of DNA evidence has led to the release of a significant number of innocent people who were convicted of murderer and rape, and when a number of law schools feel that it is necessary for them to operate innocence projects that work for the release of the wrongfully convicted.

Prosecutors are like President Bush. They absolutely refuse to admit that they ever make a mistake and have to be forced to disgorge their innocent victims. Nothing makes a prosecutor more angry than to have to give back a wrongfully convicted person's life.

Lt. William Strong and Christophe Gaynor are two of the hundreds of thousands of wrongfully convicted Americans whose lives have been ruined by an irresponsible and corrupt criminal justice (sic) system.

In Virginia, Lt. William Strong, the son of a military family, grew tired of his wife's unfaithfulness and filed for divorce. The unfaithful wife retaliated by accusing Strong of marital rape. Neither police nor prosecutor investigated the charge. Instead, they proceeded to set Strong up for plea conviction. The arresting officer recommended Strong's attorney, an incompetent who owed his cases to the police.

Strong insisted on a trial, but the arresting officer and attorney convinced Strong's parents that with a plea their son would be out in a year. No one told Strong or his parents the implications of a plea, and Virginia Judge Westbrook Parker, playing to feminist voters, gave Strong a life sentence of 60 years.

The case has many unsavory appearances. If reports are true, the arresting officer paid numerous visits to Strong's unfaithful wife, as did Strong's attorney, and the arresting officer ended up separating from his wife and leaving the police force.

The perk kit exists and Strong could be given a DNA test, but Virginia refuses on the grounds that Strong admitted his guilt. Strong says the semen, if any, is that of the wife's boyfriend.

Strong has been in prison for 15 years on the basis of zero evidence. He is in prison because he and his parents trusted the police officer and the criminal justice (sic) system.

Another Virginia case is that of Christophe Gaynor. Gaynor was the coach of an adolescent skate board team, which he took to New York City for a competition. One of the adolescents expressed his intention to buy drugs. Gaynor forbade it and threatened to report the boy to his parents.

The irresponsible kid retaliated by accusing Gaynor of sex abuse.
There was no evidence. There was no investigation. Gaynor had never displayed any homosexual tendencies. The entire team knew the accusation was false. Gaynor went to trial. He was framed by the prosecutor with the help of the judge, who intimidated Gaynor's witnesses by incarcerating one of the kids overnight without cause. Gaynor was sentenced to 32 years with no possibility of parole on the basis of no evidence, just an unproven accusation. His trial was full of irregularities, and the same judge who sentenced him denied Gaynor a new trial.

Ten years later, this past summer Noah J. Seidenberg, who brought the unproven accusation against Gaynor, died apparently of drug overdose at the age of 24 years.

There is no institution in America that is a greater failure than the criminal justice (sic) system. The system can do nothing but fail, because the search for truth and justice plays no part in the system. The prosecutor's career depends on his conviction rate, not on discovering the guilt or innocence of the accused.

Virginia's governor could pardon Strong and Gaynor. But feminists and "child advocates" would scream and yell, as would prosecutors and "law and order conservatives." Nothing matters to these groups but their own single-issue, and justice is not part of it. In America justice cannot be done unless a governor is prepared to sacrifice his own political career in the interest of justice.

What kind of people are we when we exercise no oversight over a criminal justice (sic) system that destroys the lives of innocent people with lies?

Paul Craig Roberts was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is coauthor of The Tyranny of Good Intentions. He can be reached at:

Thursday, December 14, 2006

Guest Shot: Be Very Afraid

December 14, 2006

Be Very Afraid

by Liz Garrigan

Tennessee death row inmate Paul House, whom the U.S. Supreme Court has opined is most likely an innocent man, suffers from the degenerative disease multiple sclerosis. It’s pretty clear that he’ll spend yet another birthday—he’ll be 45 on Dec. 19—and another Christmas not only behind bars, but facing a death sentence. Since he was diagnosed with MS several years ago, he’s received minimal medical treatment in prison. These days, his health care regimen is limited to a vitamin in the morning and a Tylenol PM to help him sleep at night.

Our question is, what do Gov. Phil Bredesen and Attorney General Bob Cooper take to sleep at night?

They are the two key players whose response to the High Court’s opinion will most affect House, but neither seems concerned or even interested by the U.S. Supreme Court’s June ruling that “no reasonable juror” would convict House of murder given the evidence now available. The court went on to say that House may pursue exoneration using post-conviction DNA evidence, which points the finger at the victim’s husband instead of House. Nevertheless, given that the lower courts are taking their time deciding how to proceed and that state officials stand by the conviction, the inmate’s future is disturbingly uncertain.

To recap the case, the state argued that House raped and murdered Carolyn Muncey in 1985 and that he deserved the death penalty because rape was an aggravating factor. DNA evidence has since disproved the state’s case, as the semen found on the victim was her husband’s, not House’s. Meanwhile, experts have testified that the faint bloodstains on House’s jeans were planted, two witnesses have come forward to say that Muncey’s husband confessed to the crime, and evidence was clearly tampered with.

Any reasonable person would conclude that House is innocent or, at a minimum, that the case against him is riddled with holes. But how did the state, then led by Attorney General Paul Summers, react when the DNA evidence came back? By saying that, well, just because he didn’t rape her doesn’t mean he didn’t kill her. Bear in mind, the argument of rape was the factor that got the prosecution the death penalty in the first place. Not a fiber of House’s hair or clothing was found on Muncey or her nightgown. Given what we know of his whereabouts, it would have taken someone with the athletic acumen of an Olympian—which House certainly was not—to cover the territory the state said he did in the time frame presented.

New AG Bob Cooper told the Scene last week that he would review the case but that he has “confidence in the work of this office under the previous attorneys general in this case.”

Yes, well, the Supreme Court doesn’t.

“My frustration is that the Supreme Court said nobody would convict this guy today, yet he sits on death row while the federal courts and possibly the state courts argue about whether this man got a fair trial,” Stephen Kissinger, the federal public defender who took House’s case to the U.S. Supreme Court and won, told the Scene last week.

This newspaper didn’t editorialize against the state killing of Robert Glenn Coe in 2000, when he was the first Tennessee death row inmate to be executed in Tennessee in 40 years after sodomizing, brutalizing and killing a little girl. There was no question about his guilt. And were Perry March to have been sentenced to the death penalty earlier this year, you’d have read no objection here. Testimony from his own father and from a fellow inmate were more than enough to assure jurors and anyone else that the man is a cold-blooded killer.

But the quantitative evidence in this case says the guy didn’t do it. And even state officials who have utter deniability about a botched prosecution don’t have the courage to acknowledge what the country’s highest court already has.

If ever there were a case to disillusion the public about its state stewards, this is it.

Originally published in the Nashville (TN) Scene (, December 14, 2006

Wednesday, October 18, 2006

Guest Shot: Innocence distracts death-penalty issue

Innocence distracts death-penalty issue
By David R. Dow

In two weeks, the National Coalition to Abolish the Death Penalty, the nation's premier abolitionist organization, will meet to celebrate its success in reducing popular support for the death penalty and to discuss tactics for continuing the effort.

There is something its members ought to know, however: The tactic that has eroded popular support for the death penalty is at the same time making it easier to go ahead with executions.

Many death penalty abolitionists operate in the belief that as soon as they identify one innocent execution victim, the death penalty will die a sudden and convulsive death. This belief is chimerical. We already know the names of a number of wrongly executed people, for all the good it's done.

An investigation by the Chicago Tribune revealed that Cameron Willingham, executed in Texas on Feb. 17, 2004, was almost certainly innocent.

An investigation by the Houston Chronicle demonstrated that Ruben Cantu, executed in Texas on Aug. 24, 1993, was innocent.

Professor Sam Gross, of the University of Michigan, has identified more than a hundred innocent men who have ended up on death row.

Proponents of the death penalty nevertheless continue to say that no one has yet proved innocence in these cases because none of them involved DNA. So the abolitionists search for DNA.

One day they will find it, and when they do, we will add one more name to the list, and some district attorney will apologize and say regretfully that mistakes happen. And the machine will grind on.

It will grind on because the focus on innocence has insidiously distracted the courts.

When I represent a client in a death penalty case, judges want to know whether there is any chance that client is innocent.

If he isn't, then they are not much concerned about anything else I have to say.

Oh, so blacks were excluded from the jury? So what, he's guilty; any jury would have convicted him.

Oh, so police hid evidence? Big deal, there was plenty of other evidence that he did it.

Oh, so his attorney slept through trial? Why does that matter? Clarence Darrow himself couldn't have kept him from the gallows.

Recently, the Supreme Court agreed for the second time to hear the appeal of LaRoyce Smith, a death row inmate in Texas, because the Texas courts, convinced of Smith's guilt, thought they could therefore ignore the fact that his right to a fair trial was violated. Yet the Supreme Court itself is partly to blame.

In the recent case of Kansas v. Marsh, Justices Antonin Scalia and David Souter engaged in an extraordinary debate over the persuasiveness of Gross' study and whether any innocent person has been executed in the modern death penalty era.

Of course, only the most naive person -- or perhaps the most disingenuous -- would think that we miraculously identify everyone who is innocent just in the nick of time.

But what was even more astonishing about this debate was that the arcane legal issue in Marsh had absolutely nothing to do with the question of whether Marsh was innocent or even with the issue of innocence in general.

Innocence is a distraction because most people on death row are not in fact innocent, and the possibility of executing an innocent man is not even remotely the best reason for abolishing the death penalty.

The best reason is that killing is wrong.

The second-best is that the death penalty is unfair: The system favors white skin and devalues dark; it favors the wealthy and penalizes the poor.

The third-best reason is that it tempts the government to cheat, and the government does cheat routinely; police lie and prosecutors withhold evidence.

The fourth is that it is economically unsound; we have failing public schools, citizens without adequate health care and potholes in our streets, yet we squander a billion dollars carrying out unnecessary executions.

Innocence is important, but death penalty opponents, of all people, should beware of diminishing the best and more powerful reasons for abolition and in the process, making the execution of the guilty acceptable -- because it is not.

David R. Dow is a distinguished professor at the University of Houston Law Center and has represented more than 75 death row inmates. His most recent book is "Executed on a Technicality: Lethal Injustice on America's Death Row." He wrote this essay for The Washington Post.

Saturday, October 07, 2006

Guest Shot: And the Winner Is ...Rhode Island Senate Race from the Perspective of an Exoneree

By Jeffrey Scott Hornoff

Will there be any winner in the Senate race between former Attorney General Sheldon Whitehouse (D) and incumbent Lincoln Chaffee (R)? Chaffee likely snuck into office under his father’s admirable coattails. I do recall him reciting how he learned to fend for himself while working with horses, failing to mention his trust fund or family marriages that ensured his, his children’s and grandchildren’s affluent lifestyle. However, just because someone is wealthy does not mean that he cannot do good things; it is just an indication of someone seeking to relate to the common folk by not being entirely honest.

I know a little bit about having my honesty questioned. Upon my release from 6 ½ years of wrongful imprisonment for a murder I did not commit, Sheldon Whitehouse commented to Pawtucket Times reporter Douglas Hadden (Man to be freed on murder rap, November 05, 2002) ‘ "It’s very possible Hornoff arrived and found Cushman dead," He criticized Hornoff for "an incredible failure" to call 911, "evasions" and the type of "misstatements" to police typical of someone "who is trying to hide something."

Indeed, Mr. Whitehouse. Rather than request an independent investigation of the Rhode Island State Police department’s criminal and malicious misconduct, you, sir, chose to side with the department you worked so closely with, having blind faith in their "exemplary" and "professional" conduct.

In truth, it was the State Police who perpetuated a series of lies during their single and focused investigation, the two shams of grand juries, and during the one-sided trial. Mr. Whitehouse simply found it convenient to stand beside his office’s affiliations rather than seek the truth and hold those accountable for ripping apart three families and affecting countless others.

In closing, I do recall reading former Warwick Mayor Lincoln Chaffee’s statement in the Warwick Beacon that he had full confidence in the RI State Police’s ability to investigate me. How about having confidence in your own department?

In spite of their incompetence and malicious conduct after I was eliminated as a suspect, Captain Carter did make the right call. Chaffee is nothing more than a fence sitter, yet, he’s the least dangerous of the Republicans.

Will we keep Chaffee? Will Whitehouse slither in? Some have said that they intend to write my name in for the U.S. Senate seat. I’ve never given serious consideration to office, however, most of my skeletons are out there, and if enough people wrote in my name and shocked the political machines, I would be an outspoken advocate for all Rhode Islanders. I would also take an immediate pay cut of 1/3; it’d go to my ex-wife.

Sunday, September 03, 2006

Have They No Shame?

Juan Rivera, Jr., of Waukegan, Illinois, was twice convicted of raping and killing 11-year-old Holly Staker in 1992. At his first trial, police claimed he twice confessed following 4 days of around-the-clock interrogation. That conviction was overturned on appeal, and Rivera was convicted again in 1998 after DNA tests were inconclusive.

Rivera's second conviction has been overturned because new DNA tests conclusively exclude him. In fact, the new DNA tests yielded the genetic profile of the actual rapist and killer. So what are Lake County prosecutors going to do? Re-try him, of course. Rather than ask the public -- and the next jury -- to believe that Rivera raped Holly with another man's sperm (as Virginia prosecutors would have us believe retarded field hand Earl Washington did to Rebecca Williams), they have raised the despicable claim that 11-year-old Holly was "sexually active." This child was brutally raped and killed, and the state would rather portray her as a precocious slut than admit they got the wrong man -- twice -- and start looking for the guy who did that to her.

This is not a new approach. In 1990, Roy Criner of New Caney, Texas was convicted of raping and killing 16-year-old Deanna Ogg and sentenced to 99 years in prison. After DNA tests excluded Criner as the rapist, Judge Sharon Keller of the Texas Court of Criminal Appeals declared that Miss Ogg had had consensual sex with someone else just before Criner allegedly raped and killed her. There was absolutely no evidence that Miss Ogg had been sexually active with anyone, ever. And, of course, she was dead, so she couldn't defend her own good name. It took more DNA evidence, showing that the DNA found in a cigarette butt found near her body had been smoked by the same man who raped Miss Ogg, to force the Texas authorities to release Criner from prison.

Nobody has ever apologized to Deanna Ogg's parents for smearing their dead child. Holly Staker's family can expect the same treatment. Because, to answer our own question, they have no shame.

Saturday, July 29, 2006

Guest Shot: Prosecuting Cop Torture in Chicago is NOT Barred by Statute of Limitations

Statute of limitations doesn't prevent torture charges
July 29, 2006

Well, the City of Chicago has done it again. Because the special prosecutor has refused to indict any of the police officers on Cmdr. Jon Burge's team, we are once again in the position of having to ask the federal authorities to try to clean up Chicago. The special prosecutor's report even acknowledges that a number of police officers frequently beat and tortured police suspects. The prosecutor acknowledges that, in some cases, there is sufficient evidence to support a conviction. So, why won't there be any state prosecutions? Because of the statute of limitations, the report says.

The statute of limitations is a very flexible doctrine. There are a number of reasons why a statute of limitations can be atolled -- or stopped. For example, it can be stopped if a defendant flees the jurisdiction. It can be also be stopped by a doctrine known as equitable estoppel. This theory of law says that if the defendant does something to prevent prosecution, then it's the right thing to do (it's a ''consideration of equity'') to stop the statute from running and extend it until the misconduct of the defendant (e.g., fraudulently concealing his wrongdoing) stops. Are we supposed to believe that some of these police officers didn't get together and decide what to say to the special prosecutor? The special prosecutor even admits that ''all police officers refused to talk to us.'' That happened by chance? There are two ways to go with that fact: Either their joint ''strategy'' is another whole new conspiracy to thwart prosecution (and therefore a whole new statute starts to run), or the statute never started to run at all until the officers stopped concealing evidence.

Actually, there's a third theory: obstruction of justice, one of the contemporary federal prosecutors' favorite new tools. Anybody who does something to throw off an investigation (e.g., lying to the investigators) is guilty of a felony.

Then, there's the matter of the grand jury. The report says that ''we should use the Grand Jury after we had completed our investigation.'' Forget that, typically, the grand jury is a tool of the investigation. You bring the people involved before the grand jury and order them to tell all. The public may not be aware that there is no right to remain silent in the face of a grand jury subpoena. You just can't be prosecuted on what you say about yourself. But you certainly can be compelled to talk about everybody else on the team. How many of these officers were cited for contempt for refusal to talk about things other than their own acts?

The report even says that they didn't want to call police witnesses who might then lie to the grand jury because that would be a ''perjury trap.'' I have to remember that one the next time I see a perjury indictment. Isn't that what prosecutors always do? Is there something unethical about giving them a chance to tell the truth and then indicting them if they don't? Then, what about the box of documents from the state's attorney that didn't even show up until January of this year?

The point is, you don't run a statute of limitations until the famous dome of silence among the police lifts and prosecutors can actually ask some questions about some of this evidence.

One more thing: The report is spiced with conclusions about the ''credibility'' of the people claiming torture. I didn't see much about the credibility of the police officers. I thought this is what juries are for. Aren't they supposed to decide who's credible: the police, the witnesses, the defendants or maybe just the physical evidence (like photographs of beatings)?

So, once again, we look to the federal courts to do the job right. Unfortunately, once again, the City of Chicago talks big but does nothing.

Leonard L. Cavise is a professor of law at DePaul College of Law.

Wednesday, July 26, 2006

Verdict in Julie Rea (Harper) Case


July 26, 2006
Verdict Reading

The Judge was notified that the jury had reached a verdict at 4:10 PM.
The proceedings started at 4:24.

Judge Vaughn requested that the court give the jury the respect it deserves and that no outburst of emotion will be tolerated. You would be removed from the courtroom.

The Jury Foreman passed the Verdict to the Judge. The Judge read:


Julie burst into tears and then fainted to the floor. Ron Safer half caught her and brought her to a sitting position. Mark Harper came to the front and comforted her, and eventually she was able to stand.

David Rands requested the jury be poled and one at a time they answered that their verdict given freely was Not Guilty.

The Judge thanked the jury and they were dismissed. He thanked the Lawyers on both sides, and complemented them on their professionalism.

Prosecutor Edwin Parkinson did not attend the Verdict reading

Monday, June 26, 2006

Guest Shot: Overzealous prosecutors, cross-examine yourselves

Originally published in the Los Angeles Times:

Hunger for convictions leads many prosecutors to hide evidence that could prove innocence.
By Alan Hirsch

ALAN HIRSCH, a visiting professor of legal studies at Williams College, created and operates
June 21, 2006

BY ALL APPEARANCES, the sexual assault case against three members of the Duke University lacrosse team involves serious prosecutorial misjudgment, if not downright misconduct.

Michael B. Nifong, the Durham County, N.C., prosecutor, made public accusations long before the conclusion of the investigation and now forges ahead even as DNA, witness statements, medical reports and other evidence lead impartial observers to find the case ridiculously weak.

Sadly, such conduct is not uncommon. Prosecutors blatantly or subtly overstep professional bounds all too frequently. In a 2003 study, the Center for Public Integrity found that, since 1970, trial and appellate courts cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in more than 2,000 cases. In thousands more, courts labeled prosecutorial behavior inappropriate but upheld convictions nevertheless.

The New York-based Innocence Project, whose DNA testing has led to the exoneration of 180 wrongly convicted people in the last 15 years, has studied these cases. It cites the following prosecutorial abuses as contributing to the punishment of the innocent: suppression of information favorable to the defense, knowing use of false testimony, improper closing arguments, coerced witnesses, false statements to the jury and fabrication of evidence.

Maybe such shenanigans will seem unsurprising — just a case of lawyers being lawyers. As the joke goes, what's the difference between lawyers and liars? The pronunciation. (I can make the joke. I'm a lawyer.) But prosecutors are supposed to be different. They are public servants who are supposed to be committed to justice rather than the single-minded pursuit of victory. The Supreme Court has referred to their "twofold aim": to ensure that "guilt shall not escape or innocence suffer."

Why is the second half of that command often neglected? Why do some prosecutors seem indifferent to the risk that their behavior will result in punishment of the innocent? The answer to these questions involves a combination of at least three factors.

First, the asymmetry of the criminal justice system arguably places unrealistic demands on prosecutors. Defense attorneys may pursue acquittals without regard for truth and are subject to few ethical constraints. For example, defense attorneys generally are not bound to share evidence unfavorable to their client, but a prosecutor's failure to share exculpatory material is a serious no-no likely to result in a conviction being reversed. Prosecutors understandably aren't fond of unequal combat. With trials structured as zero-sum competitions featuring a clear winner and loser, they resist allowing their opponent overwhelming tactical advantage.

Personal ambition compounds competitive instincts. Many prosecutors are elected. They wish to be re-elected and often aspire to higher office. One rarely wins popular acclaim for the indictment not brought (because of doubts as to guilt or because evidence was illegally obtained) or the case lost (because of appropriate restraint). Professionalism in prosecution can be subtle and unpublicized, whereas wins and losses are out there for everyone to see. Moreover, restraint is easily mistaken for weakness, rashness for strength. Today, Nifong receives criticism for prosecuting the lacrosse players, but at the time he charged ahead with the decision, public pressure pushed toward aggressive action.

Another cause of prosecutorial misconduct is the deep-seated human need to rationalize away our errors. It would be awfully difficult now for Nifong to admit — to himself — that he shouldn't have brought charges. He retains the discretion to drop the charges, but it would amount to an admission that he has shattered the lives of several innocent people. Who among us is capable of acknowledging mistakes of such magnitude?

The role of rationalization is on clearest display after DNA exonerates those already convicted. The occasional brave prosecutor will apologize and take action to release the man he or his office wrongly put behind bars, but more often the prosecutor refuses to admit the obvious. Though he routinely argues to juries about the infallibility of DNA evidence, now he isn't so sure. Or, though he advanced a theory about the defendant's guilt with certainty, he now abandons that theory while nevertheless maintaining the belief in guilt.

Consider the case of Earl Washington, a mentally retarded man convicted of rape and murder in Virginia who never should have been prosecuted. The case against him consisted of a wildly inaccurate confession, whose errors included misidentifying the race of the victim. Some time after Washington's conviction, DNA testing ruled him out as the source of the seminal fluid found in the victim. The prosecution merely changed its theory of the case, arguing that Washington was not the rapist but an accomplice. They stuck to that story (supported by zero evidence) even after Washington received a pardon and even though no neutral observer has found his guilt a realistic possibility.

Prosecutorial misconduct should not surprise us. Prosecutors are lawyers (intent on victory), politicians (craving popularity) and human beings (needing to rationalize serious errors). The question is what medicine can be prescribed to treat the malignant influences on their behavior. The solution begins with the right kind of public pressure. We must judge prosecutors by much more than how many headlines and convictions they muster.

Tuesday, June 20, 2006

What is Tennessee Afraid Of?

Sometime after 1:30 a.m. on July12, 1985, 19-year-old Suzanne Collins went jogging near a Navy base north of Memphis, Tennessee. She never came back. Suzanne was kidnaped, beaten to death and sexually assaulted with a sharpened tree limb.

Sedley Alley was arrested almost immediately after Suzanne’s body was found. Police had arrested Alley at 12:10 a.m. on the morning of Suzanne’s murder, and after they released him, police kept him under surveillance, so Alley was easy to find. (Over the next 20 years, the authorities "forgot" to disclose Alley’s arrest, release and surveillance.) He admitted the killing, although the story he gave police was significantly inconsistent with the evidence. Alley pled not guilty by insanity, claiming he had multiple personalities and another personality must have killed Suzanne. With Alley’s confession in hand, it wasn’t hard to get a conviction and death sentence.

Famed FBI profiler John Douglas featured this case in his book Into The Darkness. He wrote that he had become friends with the Collins family and had said if anyone deserved the death sentence it was this man. For many, the reprieves Alley received over the years was frustrating. His execution was scheduled for May 17, 2006, but he won a short reprieve (until June 28th) while his attorneys, including Barry Scheck with the Cardozo Innocence Project, sought DNA testing of the murder weapon, Suzanne’s clothes and other items from the crime scene. On May 30, 2006, Judge W. Otis Higgs of Memphis denied Alley’s DNA testing request. The Tennessee Court of Criminal Appeals is now considering an appeal of Higgs’ denial. The same court rejected a similar appeal by Alley in 2004.

Jennifer Smith, a deputy state attorney general, said Alley's guilt is not in doubt and DNA tests, had they been available then, would not have changed his trial jury's verdict in 1987. But, as Scheck pointed out in oral argument, how do they know until they do the testing? And if Alley’s conviction is iron-clad, why does the state so vigorously oppose DNA testing?

Smith accused Alley’s lawyers of trying to open a new murder investigation. If Alley didn’t kill Suzanne, someone else did, and Suzanne deserves nothing less than a new investigation. Smith also says she’s concerned that allowing DNA testing in Alley’s case would "open up a door" to broader use of Tennessee’s post-conviction DNA testing law. To which we respond, so what? What is more important to the State of Tennessee, convictions or truth?

Sunday, June 18, 2006

Larry Peterson, In His Own Words ...

My long struggle for justice
Larry Peterson tells how he overcame prosecutors and prison cruelty to prove his innocence in a murder case.
Reposted from the Philadelphia Inquirer

By Larry Peterson
June 15, 2006

In 1987, as I was trying to place my life in a favorable position to prosper mentally, spiritually and emotionally, my life took a hellish turn.

In 1986, I had begun to attend a treatment center to assist me with my alcohol problems. All appeared to be going well, almost fantastically, for me when in August 1987 the state began investigating the Burlington County rape and murder of Jacqueline Harrison.

I couldn't fathom why investigators had come to interview me and why I was a suspect.

Little did I know the state was building a case against me, maybe because of my arrogance and obnoxiousness and because I didn't care for their rude, insensitive interrogation tactics.

On Sept. 22, 1987, I was at work at Diamond Lumber when the supervisor asked me to join him in his office. Three or four county officers were there, and they began reading me my rights and informing me I was being arrested for Ms. Harrison's rape and murder.

I was taken to the county courthouse, where I was interrogated for hours. I told them the same thing over and over:I didn't commit any crime, and at the time of the murder I was in Wrightstown with a young lady having a good time at a motel.

I was taken to the Burlington County jail and made to wait all day before being processed in. Late that night, about 10:30 or 11, I was placed in a dorm with seven criminals. I was attacked there by inmates and required stitches to my lips.

The next day, I was transferred to the Cumberland County jail in Bridgeton, where I remained in solitary for more than 90 days. In January 1988, I was transferred to the Mercer County Detention Center in Trenton, where I remained until my trial began in January 1989.

From 1987 to 1989, I was treated cruelly in every sense of the word when it came to dental and medical treatment.

On the day I entered Trenton State Prison, facing 50 years, I made up my mind to accomplish two things.

First and foremost, I was going to live for the Lord regardless of whether I got out of what had happened to me.

Second, I would work to prove my innocence.

I worked regularly in the law library, and I studied God's word to know how to live and what life was really about.

I wrote to law clinics, including the Innocence Project, but none would touch my case until I finished all my appeals. The Innocence Project followed my case for years and took it immediately after my appeals.

I must express my deep and sincere appreciation for many, but especially for Vanessa Potkin, a project attorney who spent endless hours, weekends and holidays doing everything she could for me.

For years I was treated as less than human by certain guards and often was abused by the dental department and medical staff. For more than 12 years, until I was moved to a newer section of the prison, the living conditions were horrendous. Roaches and mice ran the units more so than humans.

I was denied DNA testing for years, I believe with all my heart because the authorities in the Prosecutor's Office knew they had framed me, lied about me, and forced others to lie about me.

They knew I was an innocent man, yet they ran me through hell in an attempt to cover up the ugly things they had done.

Then on Aug. 27, I was released from the Burlington County jail, and I felt the beginning of freedom.

That didn't become reality until May 26, when the Prosecutor's Office decided not to retry me - the only right thing it has done in 19 years.

I received word while at work that the state was about to end my nightmare. My tears were uncontrollable.

Now a new day is arising, full of happiness, joy, freedom, and the pursuit of a new, prosperous and fulfilling life.

All honor, praise and glory to the Holy One of Israel.

Now, when does the pursuit of the real perpetrators take place so there can be finality for the victim's family?

Larry Peterson, 55, made bail last year after serving 18 years. Charges against him were dropped last month after DNA tests failed to place him at the crime scene. He works as a carpenter and writes from Pemberton Township.

The End of Innocence - Repost from NYT

The End of Innocence
New York Times By DAVID R. DOW, OpEd Contributor
June 16, 2006

EARLIER this week, the Supreme Court decided, in a 5-to-3 opinion, that a Tennessee prison inmate named Paul G. House was entitled to prove he did not commit the crime for which he was sent to death row. On the same day, I received a letter from Centurion Ministries, which argued for more than a decade that a Virginia man named Roger K. Coleman had not committed the crime for which he was executed in 1992. The letter admitted that Centurion had been wrong.

These cases have something in common: they pivot on the question of innocence. For too many years now, though, death penalty opponents have seized on the nightmare of executing an innocent man as a tactic to erode support for capital punishment in America.

Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed.

Focusing on innocence forces abolitionists into silence when a cause célèbre turns out to be guilty. When the DNA testing ordered by Gov. Mark Warner of Virginia proved that Mr. Coleman was a murderer, and a good liar besides, abolitionists wrung their hands about how to respond. They seemed sorry that he had been guilty after all.

I, too, am a death penalty opponent, but I was happy to learn that Mr. Coleman was a murderer. I was happy that the prosecutors would not have to live with the guilt of knowing that they sent an innocent man to death row.

The day before the DNA results were reported in the Coleman case last January, the Supreme Court heard oral arguments in the Paul House case. In Mr. House's case, the DNA testing has already been done, and it tends to suggest that he is indeed innocent. During oral arguments, however, Justice Antonin Scalia (who was one of the three dissenters when the court decided the case this week) argued that disputes over factual findings in a case can't be endlessly rehashed.

He is certainly right about that. As Justice Scalia has said elsewhere, of course we are going to execute innocent people if we have the death penalty. The criminal justice system is made up of human beings, and fallible beings make mistakes.

But perhaps that is a price society is willing to pay. If the death penalty is worth having, it might still be worth having, despite the occasional loss of innocent life. Paul House might be innocent, but how long will we keep death row inmates alive, waiting to find out?

In Mr. Coleman's case, the Virginia Supreme Court did not address the arguments that he had raised in his appeal, because his lawyer had filed the papers one day late. When the case got to the United States Supreme Court, the court, in an opinion by Justice Sandra Day O'Connor, began its analysis by saying, "This is a case about federalism."

The case did have something to do with the relationship between the Supreme Court and Virginia's highest court. But is that what the case was really about? Mr. Coleman was saying that his trial lawyer had been incompetent, and that the Virginia courts were refusing to address the question of whether his trial lawyer had been incompetent because his appellate lawyer had filed the appeal a day late.

Federalism might be a plot line in this story, but it hardly seems to be the major issue. When the Supreme Court brushed aside Mr. Coleman's appeal 15 years ago, the justices said that a death row inmate cannot complain when his lawyer misses a filing deadline, because the lawyer is the agent of the client, and clients are responsible for the failings of their agents.

As a result of this syllogism, my client Johnny Joe Martinez was executed in 2002, because his court-appointed appellate lawyer neglected to file a proper appeal — a mistake he freely admitted to, attributing it to inexperience. When the Martinez case reached the federal courts, those courts, invoking the Coleman decision, said too bad for Mr. Martinez; the mistake of his lawyer was attributable to him. I could go on with other examples.

Of the 50 or so death row inmates I have represented, I have serious doubts about the guilt of three or four — that is, 6 to 8 percent, about what scholars estimate to be the percentage of innocent people on death row.

In 98 percent of the cases, however, in 49 out of 50, there were appalling violations of legal principles: prosecutors struck jurors based on their race; the police hid or manufactured evidence; prosecutors reached secret deals with jailhouse snitches; lab analysts misrepresented forensic results. Most of the cases do not involve bogus claims of innocence, like the one that swirled for 15 years around Roger Coleman, but the government corruption that the federal courts overlook so that the states can go about their business of executing.

The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.

David R. Dow, a law professor at the University of Houston, is the author of "Executed on a Technicality: Lethal Injustice on America's Death Row."

Sunday, May 07, 2006

The Innocence Project and Arson

The Cardozo Law School Innocence Project is often referred to as "the" Innocence Project. It was the first law school-affiliated innocence project, founded and still directed by Barry Scheck and Peter Neufeld, two lawyers who can legitimately claim international renown. But it was the scientific certainty behind exonerations obtained by the Innocence Project that made it so well known and so influential.

The Innocence Project limited its caseload to those in which DNA could indisputably prove an inmate’s innocence. That’s strong stuff, and it has forced a recognition of the myriad factors underlying those wrongful convictions–faulty eyewitness identification, junk or fraudulent science, fabricated "snitch" and co-defendant testimony, police and prosecutorial misconduct, false confessions and ineffective defense attorneys.

Realizing that if they have identified so many wrongly convicted citizens in cases where DNA could be useful (a small fraction of all criminal cases), Mr. Scheck, Mr. Neufeld and other Innocence Project participants around the country have taken the decision to examine some of those other cases, including arson cases. Their first arson case involves two cases, those of Cameron Todd Willingham and Ernest Willis, both of Texas.

Fire origin and cause expert Dr. Gerald Hurst has said, "If there is a fatal fire and someone survives, the survivor will be charged with arson and murder." That certainly was true in both Willingham’s and Willis’ cases. Willingham survived a fire that claimed the lives of his three, young children. Willis escaped a blaze in which two women perished. The conclusions of the fire investigators that the fires were incendiary was based on low burns and irregular burn patterns, indicators that were once accepted by many, but have now been largely discredited, at least in cases where fires grow to involve the entire room or structure. Other indicators relied upon in these cases included annealed furniture springs, discolored concrete, and crazed glass. In the Willingham case, auto-ventilation was described as an indicator of an incendiary fire, and in the Willis case, the amount of damage to the ceiling was said to correlate to the amount of flammable liquid on the floor, even though all of the samples came back negative.

Both men were charged with arson and multiple counts of murder, precisely because their accounts of the fires were different than what the state’s fire investigators said had happened. That meant they were lying. That meant they were killers. Both were convicted and sentenced to death.

In the summer of 2004, after he had spent 17 years on Death Row, a federal judge ordered a new trial for Ernest Willis. Three months later, the local district attorney conceded there was no evidence to support the charge. "I don't have to decide whether he's innocent or not, but I think that's probably a probability, that he is innocent," said Ori White, the district attorney in the 112th judicial district. Willis was the first man released from Death Row in seven years.

But it was too late for Willingham. Five months before Willis’ new trial was ordered, eight months before Willis walked off Death Row a free man, Cameron Todd Willingham was executed by the State of Texas. Murdered by the State of Texas, on discredited, junk science. "Gee, we had no idea," won’t work to excuse Willingham’s murder. Texas judges, the members of the Board of Pardons and Parole, and Gov. Rick Perry all turned aside a report by Dr. Hurst that concluded, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." Many people doubt any of these authorities bothered to even read Dr. Hurst’s report. Willingham’s February 17, 2004 execution went forward as scheduled.

Dr. Hurst’s report in Willingham’s case was reviewed by three other fire experts–private consultants John Lentini and John DeHaan, and Louisiana fire chief Kendall Ryland. They concurred with Hurst’s conclusions. Even Edward Cheever, one of the state fire investigators who worked on the Willingham fire, conceded, "At the time of the [Willingham] fire, we were still testifying to things that aren't accurate today." He added, "Hurst was pretty much right on. We now know not to make those same assumptions."

Or do we? What passes as expert testimony in too many arson cases continues to be littered with debunked theories passed off as science. In some instances, plain lies turn the key on innocent people. Few judges and even fewer jurors understand the evidence well enough to make informed decisions, and since the lawyers don’t understand it, either, wrongful arson convictions continue to occur.

The report on the Willingham and Willis cases was prepared for the Innocence Project by fire origin and cause investigators John J. Lentini, Daniel L. Churchward, Douglas J. Carpenter, David M. Smith, and Attorney Michael A. McKenzie. They are members of the Arson Review Committee (ARC) of the International Association of Arson Investigators (IAAI). Formation and functioning of the ARC is a significant accomplishment, since the membership of IAAI remains split over the application of science to fire investigation. Many arson investigators continue to believe that fire investigation is a subjective art, not an objective science. [A similar review group, the Tetrahedron Committee, was independently formed six years ago to review arson cases, and its participants met with ferocious criticism from "old school" fire investigators. The IAAI has come a long way in officially sponsoring the ARC. The Tetrahedron Committee continues to review cases. E-mail Truth in Justice for information on how to request assistance.]

We hope that the Innocence Project’s expansion into the science of fire will have the same, far-reaching effects as its efforts with DNA.

The Steven Avery Case

The Steven Avery case in Wisconsin has made things tough for everyone in the Midwest with innocence claims. I received an average of 35 verbally abusive, bordering-on-hysterical e-mails each day for the past week (since the nephew’s “confession”) at Truth in Justice from idiots who think we had something to do with Avery’s exoneration for a rape he did not commit. The “thinking” (I use quotation marks because these people are doing precious little thinking) is that he should have stayed in prison even though he was innocent because then Teresa Halbach would still be alive.

Well, I don’t think Teresa Halbach is dead. I think she ditched and headed way out of town, probably Canada. She had help from at least one person, whoever drove her car out to Avery’s junk yard and left it there, and I expect the key was left in the ignition. They didn’t “find” it in Avery’s dresser drawer with his DNA on it, nor did they find Avery’s blood in Teresa’s car, until after they took blood from Avery. Who carries just an ignition key, not even on a ring? She took the other keys with her, or gave them to the person who helped her run off. I don’t think Teresa in her wildest dreams thought something like this would happen, and once the ball started rolling, she didn’t dare come back. Remember how everyone turned on the “runaway bride” last year when she came back? They were preparing to present a murder charge against her fiancé to the grand jury! When she turned up, they charged her with felonies for lying to police about what happened to her.

The crime lab and FBI have not said that the DNA of tooth and bone fragments in the burn pit match Teresa’s DNA. They said it’s “consistent with” Teresa’s DNA. “Consistent with” is a junk science red flag. DNA from a dog or a cow would be “consistent with” DNA from a human because they are all mammals. “Consistent with” is not the same as “match” and they use the “consistent with” term to deliberately mislead because most people don’t understand the difference. Now, if Teresa had gone down in a terrible airplane crash, you can bet they’d be all over her hair brush, her tooth brush, the shower drain and such for her DNA, and she wouldn’t be declared dead until they made a match with whatever burned fragments they found. No, she isn’t dead.

And his nephew Brendan Dassey’s story is utter poppycock elicited from a kid who’s developmentally disabled and trying to tell the cops what he thinks they want to hear. It is not consistent with the evidence. If you stab someone in the abdomen and cut her throat, you’ll have to dispose of a lot more than the sheets. And just think about trying to strangle someone—for 2 to 3 minutes yet—after you’ve cut her throat. My God, you’d be covered in blood head to toe. It would be everywhere, especially in a trailer. And then, covered in blood, you carry someone who’s gushing blood through the trailer and out to a garage, without leaving a trail. You then shoot her 10 times with a .22 rifle, come back and clean up the mess (which apparently is only in the garage) with gasoline and bleach, but you leave the shells where they fell. Sure. His “confession” is straight out of “Grand Theft Auto,” a violent video game that includes shackling a prostitute begging for mercy. He threw in the story line of the zombie movie “Land of the Dead” with the baloney about how she wouldn’t die so they had to use all those methods to kill her. It doesn’t take much to figure out the sources for this story. Apparently the cops don’t stay up to date on adolescent entertainment. Neither does the frighteningly ignorant general public.

Now they’ve added charges based on the statements of prison snitches stepping on one another to get a deal for themselves, claiming that Avery was already planning to commit a crime like this while he was in prison (like he knew all along he’d get out short of Mandatory Release), and that Avery bought handcuffs three weeks after he got out. That would have been when he was living in an ice shack. Yes, Avery lived in an ice shack for the first six months after his release. The lawyers at the innocence project found out and got someone to donate the trailer so he’d have something better than a shanty to live in.

This is how they do it. What do I think will happen next? Avery and his nephew will be convicted on absolutely every charge the Calumet County DA can concoct. Hell, they have already been convicted. Hopefully, the Department of Corrections won’t toss them into the general population, because they’d be killed. That would make it even worse when Teresa is finally “outed” as alive and well and living someplace like Vancouver. Because, yes, I think she will eventually be found, but she won’t come forward voluntarily—someone who knows her will spot her, or she’ll make contact with family and be discovered that way.