Friday, July 31, 2009

Guest Shot: Hidden Evidence

The following editorial was originally published in the print edition of The Economist on July 30, 2009.

Hidden evidence

DNA is changing the way America fights crime, not its policies towards convicts

A JUDGE can tell prospective jurors that in a criminal trial, unlike an episode of “CSI: Crime Scene Investigation”, scientific evidence is not necessary to secure a conviction, an appeals court in Baltimore ruled on July 7th. Quite right, too. The evidence submitted in real courts is often not as cut-and-dried as it seems on television. Yet the use of DNA to secure convictions is growing fast. The people not benefiting from this are those who may have been wrongfully convicted before DNA was routinely examined, and who are being denied access to evidence that could set them free.

Much is being made of a recent Supreme Court ruling that William Osborne, a prisoner in Alaska, has no constitutional right to DNA testing to prove his innocence of the 1994 rape for which he was convicted and jailed. Nina Morrison of the Innocence Project, a New York-based non-profit legal outfit that represents Mr Osborne, fears the decision could lead to many innocent prisoners remaining in jail—or even facing execution.

Since Congress passed the DNA Fingerprint Act in 2005, federal authorities have been collecting DNA samples from everyone they arrest or detain. The FBI’s national DNA database (NDIS) gets more than 1m DNA profiles a year. By last May CODIS, an FBI index that compares forensic evidence at local, state and national level, resulted in 90,900 “cold hits”, where biological evidence from an unsolved crime matches a profile in the database. This has led to many arrests and convictions.

But three states (Alaska, Massachusetts and Oklahoma) give prisoners no statutory rights to a DNA test, even though such a test might exonerate them. Though exonerations have occurred in Massachusetts and Oklahoma by way of appeals from defence attorneys, access to testing is still hard to get. Many other states allow testing only in limited circumstances. Kentucky, for instance, restricts its DNA testing to death-row inmates. Someone serving a life sentence is not eligible.

Texas and Illinois, whose laws do permit simple post-conviction access to testing, boast the highest number of convictions that have been overturned thanks to DNA evidence: 38 and 29 respectively, says the Innocence Project. Texas, which accounts for half of all executions in America, passed a bill in May establishing the Timothy Cole Advisory Panel on Wrongful Convictions, named after a man posthumously exonerated through DNA testing. A team set up to study the causes of wrongful convictions and to devise ways of preventing them is to report to the governor no later than 2011.

Prosecutors can use their state’s statutes of limitations (which set time limits for the introduction of new evidence after sentencing) to decline prisoners’ requests for DNA testing. They argue that cases could be strung along endlessly and expensively by frivolous appeals if there are no such limits. Yet this seems a weak argument when it comes to DNA, which might establish innocence or guilt without much scope for prolonged debate.

Many prisoners might be cleared were DNA testing more routinely available. The American legal system encourages plea bargains, whereby accused people accept a much lower sentence than would be imposed if they were found guilty. In the absence of the DNA evidence that would clear them, even innocent people may conclude that a plea bargain is the safer option. More than 90% of convictions in the United States result from such bargains.

Steven Benjamin of the National Association of Criminal Defense Lawyers contends that the restrictions on post-conviction testing amount to a fear of the truth. He may be right.

Wednesday, July 29, 2009

Guest Shot - You're Probably a Federal Criminal

The following editorial by Brian W. Walsh was originally broadcast on Fox News on July 21, 2009.

You're (Probably) a Federal Criminal

Federal law now criminalizes activities that the average person would never dream would land him in prison. Consequently, every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law and end up serving time in federal prison.

With all the attention that's been paid lately to long federal sentences for drug offenders, it's surprising that a far more troubling phenomenon has barely hit the media's radar screen. Every year, thousands of upstanding, responsible Americans run afoul of some incomprehensible federal law or regulation and end up serving time in federal prison.

What is especially disturbing is that it could happen to anyone at all -- and it has.

We should applaud Reps. Bobby Scott (D-Va.) and Louie Gohmert (R-Texas), then, for holding a bipartisan hearing today to examine how federal law can make a criminal out of anyone, for even the most mundane conduct.

Federal law in particular now criminalizes entire categories of activities that the average person would never dream would land him in prison. This is an inevitable result of the fact that the criminal law is no longer restricted to punishing inherently wrongful conduct -- such as murder, rape, robbery, and the like.

Moreover, under these new laws, the government can often secure a conviction without having to prove that the person accused even intended to commit a bad act, historically a protection against wrongful conviction.

Laws like this are dangerous in the hands of social engineers and ambitious lawmakers -- not to mention overzealous prosecutors -- bent on using government's greatest civilian power to punish any activity they dislike. So many thousands of criminal offenses are now in federal law that a prominent federal appeals court judge titled his recent essay on this overcriminalization problem, "You're (Probably) a Federal Criminal."

Consider small-time inventor and entrepreneur Krister Evertson, who will testify at today's hearing. Krister never had so much as a traffic ticket before he was run off the road near his mother's home in Wasilla, Alaska, by SWAT-armored federal agents in large black SUVs training automatic weapons on him.

Evertson, who had been working on clean-energy fuel cells since he was in high school, had no idea what he'd done wrong. It turned out that when he legally sold some sodium (part of his fuel-cell materials) to raise cash, he forgot to put a federally mandated safety sticker on the UPS package he sent to the lawful purchaser.

Krister's lack of a criminal record did nothing to prevent federal agents from ransacking his mother's home in their search for evidence on this oh-so-dangerous criminal.

The good news is that a federal jury in Alaska acquitted Krister of all charges. The jurors saw through the charges and realized that Krister had done nothing wrong.

The bad news, however, is that the feds apparently had it in for Krister. Federal criminal law is so broad that it gave prosecutors a convenient vehicle to use to get their man.

Two years after arresting him, the feds brought an entirely new criminal prosecution against Krister on entirely new grounds. They used the fact that before Krister moved back to Wasilla to care for his 80-year-old mother, he had safely and securely stored all of his fuel-cell materials in Salmon, Idaho.

According to the government, when Krister was in jail in Alaska due to the first unjust charges, he had "abandoned" his fuel-cell materials in Idaho. Unfortunately for Krister, federal lawmakers had included in the Resource Recovery and Conservation Act a provision making it a crime to abandon "hazardous waste." According to the trial judge, the law didn't require prosecutors to prove that Krister had intended to abandon the materials (he hadn't) or that they were waste at all -- in reality, they were quite valuable and properly stored away for future use.

With such a broad law, the second jury didn't have much of a choice, and it convicted him. He spent almost two years locked up with real criminals in a federal prison. After he testifies today, he will have to return to his halfway house in Idaho and serve another week before he is released.

The other hardened criminal whose story members of Congress will hear today is retiree George Norris. A longtime resident of Spring, Texas, Norris made the mistake of not knowing and keeping track of all of the details of federal and international law on endangered species -- mostly paperwork requirements -- before he decided to turn his orchid hobby into a small business. What was Norris's goal? To earn a little investment income while his wife neared retirement.

The Lacey Act is an example of the dangerous overbreadth of federal criminal law. Incredibly, Congress has made it a federal crime to violate any fish or wildlife law or regulation of any nation on earth.

Facing 10 years in federal prison, Norris pled guilty and served almost two. His wife, Kathy, describes the pain of losing their life savings to pay for attorneys and trying to explain to grandchildren why for so long Poppa George couldn't see them.

Federal criminal law did not get so badly broken overnight, and it will take hard work to get it fixed. It is encouraging that members of Congress such as Reps. Scott and Gohmert are now paying attention to the toll overcriminalization takes on ordinary Americans. Congress needs to begin fixing the damage it has done by starting to restore a more reasonable, limited and just federal criminal law. Today's hearing is an excellent first step.

Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation (

Friday, July 10, 2009

Guest Shot: Judge Sonia Sotomayor Denied My Appeal and I Spent 16 Years in Prison For a Crime I Didn't Commit

The following was originally published at on July 10, 2009.

Sotomayor put procedure over innocence as a federal judge.

My name is Jeffrey Deskovic. At age 17, I was wrongfully convicted of murder and rape, a conviction that was based upon a coerced, false confession, the fabrication of evidence, prosecutorial misconduct and fraud by a medical examiner. I was cleared 16 years later -- almost three years ago -- when DNA evidence proved my innocence, while also identifying the real perpetrator, who subsequently confessed to the crime. Since my release, I have made it my life's mission to battle against wrongful convictions and fight for legislation that would minimize the chances of what happened to me happening to someone else. It is this fight that compels me to speak out about Supreme Court nominee Sonia Sotomayor.

Before I was exonerated, I sought out every legal avenue I could to win my freedom. I defended my innocence before the New York Appellate Division, raising such proof as the fact that the physical evidence found did not match me and arguing that the police violated my rights by coercing a false confession from me at the age of 16. The court ruled against me 5 to 0, concluding that there was nothing wrong with my interrogation and stating that there was "overwhelming evidence of guilt," despite the fact that there was no evidence beyond my forced confession. In truth, the DNA and the hairs found on the victim's body were evidence of my innocence.

When my lawyer was denied a chance to reargue the case on the grounds that the court's decision ran counter to the law and to the facts, we moved to the Court Of Appeals, the highest court in New York. I filed a Writ Of Habeas Corpus, in which I argued that my conviction was a violation of the U.S. Constitution. The year was 1997. The year before, Congress had passed Bill Clinton's Anti-Terrorism-Effective-Death-Penalty Act (often called AEDPA in legalese), which mandated that from then on, all state prisoners would have only one year to appeal to a federal court after being denied an appeal by their state's highest court. As a result, there was some confusion in the federal courts regarding the filing procedure; it was not clear how this new law would apply to cases already in the system. Different jurisdictions were answering the question in different ways; my lawyer called the court clerk and asked whether it was enough that my petition be post-marked on the due date, or if it had to physically be filed and in the building on the due date. The court clerk told my attorney that it was enough that it be postmarked. That information turned out to be false. Consequently, my petition arrived four days too late.

Westchester District Attorney Jeanine Pirro seized on the late petition, arguing that the court should dismiss my case without even considering my innocence claim. The court sided agreed. I then appealed my case to the 2nd Circuit. It was there that I first met Judge Sonia Sotomayor.

My lawyer gave three reasons why Judge Sotomayor and her colleague should overturn the procedural ruling: 1) Upholding such a ruling would cause a miscarriage of justice to continue; 2) Reversing the procedural ruling could open the door to more sophisticated DNA Testing; 3) The late petition was not my fault or my attorney's. To our dismay, Judge Sotomayor and her colleague refused to reverse the ruling. "The alleged reliance of Deskovic's attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance," they wrote. "Similarly, we are not persuaded that … his situation is unique and his petition has substantive merit." A second appeal to Sotomayor's court resulted in the same decision. The U.S. Supreme Court refused to hear my case, and I remained in prison for six more years.

When I first learned that Judge Sotomayor was nominated to the U.S. Supreme Court, I was immediately alarmed. What would it mean for other people who were wrongfully convicted? Judge Sotomayor put procedure over innocence in my case. Could she be trusted not to do so again in the future? Could she be counted on to correct injustices when the facts indicated that and/or the legal arguments could demonstrate that a trial was unfair?

Judge Sotomayor condemned me to serve a life sentence for a murder and rape that I did not commit. That other innocent people could be denied relief based on procedural technicalities is no mere possibility; Take the case of Troy Davis, who faces execution in Georgia despite overwhelming proof of his innocence -- proof that has never been allowed in a court room. Consider, too, the recent U.S. Supreme Court ruling in Alaska V.S. Osbourne, in which the U.S. Supreme Court stated that no prisoner has a constitutional right to access DNA Testing even when such testing could demonstrate innocence. That decision came down to a 5 to 4 vote; if Judge Sotomayor had been on the court, can anybody say with confidence that she would have voted in favor of DNA access?

There are human consequences to these decisions. I can still see the prison cell, the barbed wire, the isolation from my family, the depression, helplessness, frustration, abuse by prison guards, the constant physical danger in prison, no opportunities to build for my future, missing births, deaths, and holidays. We need to awaken this country to the role that judges play in perpetuating wrongful convictions by putting procedure over innocence, by putting finality of conviction over accuracy, and by rubber stamping appeal denials regardless of whether a trial was truly fair.

Judge Sotomayor will appear before the Senate next week. Given that she has been nominated to a lifetime appointment that affects all of our rights, what she did in my case -- condemning me to a life sentence based on procedure in the face of an airtight innocence claim -- should be part of the discussion. I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor's putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.

It is deeply dismaying that neither the Republicans nor the Democrats have introduced my case to the national conversation about Judge Sotomayor. Do people remember Anita Hill? As serious as her allegations of sexual harassment were, I would think that my serving time in prison wrongfully and being condemned to a life sentence for a crime that I was innocent of would be even more serious. I lost 16 years of my life. It seems evident that politics is trumping justice; that I am once again being wronged by the system.

Thursday, July 09, 2009

Guest Shot: Again, man wrongfully imprisoned faces undeserved trouble

The following editorial was published in The Virginian-Pilot on July 8, 2009.

Arthur Whitfield, 55, has spent half his life trying to undo the damage from wrongful convictions for two rapes in 1981. The documented miscarriages of justice include nearly 22 years in prison before DNA test results set him free, a subsequent pardon that took more than four years, and now, absurd legal technicalities that prevent him from getting a paltry $15,000 from the state for the decades he wrongly spent in prison.

Despite all this, Whitfield remains remarkably free of anger and bitterness. He told The Pilot's Michelle Washington, "I understand that life isn't easy, but I thought it would be a little bit better than what it is."

It should be. Whitfield was 27 when he was sent to prison for 63 years for two rapes in Norfolk's Ghent neighborhood, largely on the basis of an identification by a victim. That was before DNA tests were commonplace, before evidence from a crime scene could provide an irrefutable link to a defendant or eliminate him as a suspect.

While in prison - two decades away from his family, away from any chance of earning a wage or putting money away for retirement - Whitfield earned his general equivalency diploma. He took classes in commercial cleaning and brick masonry.

In 2003, when DNA tests on old evidence began clearing a few defendants across Virginia, Whitfield asked the state to see whether the tests could be done in his case.

Two state officials helped Whitfield's case immeasurably. Mary Jane Burton, a state forensic lab analyst who has since died, preserved biological evidence, including Whitfield's, at a time when it was not required. And Norfolk Commonwealth's Attorney Jack Doyle pursued Whitfield's freedom as soon as the DNA tests in 2004 showed he was innocent.

Doyle, now a judge, petitioned the state parole board for Whitfield's immediate release. In April, three months ago, Gov. Tim Kaine pardoned Whitfield. The pardon erases his conviction, removes his name from the state's sex offender registry and takes him off probation.

But it doesn't result in compensation for the time Whitfield spent behind bars, even though his circumstances are exactly the kind the legislature envisioned addressing. Whitfield's lawyer applied for a $15,000 transition grant to help his client until the legislature can study his case and determine how much compensation Whitfield is owed.

Absurdly, the law says such grants can be given only to people still in prison, a condition that essentially requires Virginia to keep innocent people behind bars.

Whitfield now has a job but no car. The gas and water in his apartment have been turned off because he couldn't pay the bills.

He has suffered enough. More than enough.

This latest situation begs for a lawmaker to navigate the system on Whitfield's behalf and get him the help he needs. Sen. Ken Stolle says he will check into Whitfield's case. So should the rest of the General Assembly. Arthur Whitfield deserves help, not further delay in putting back together a life that the state helped take apart.