Sunday, August 29, 2010

West Memphis 3 Rally - August 28, 2010

Close Enough Isn't Good Enough

The following opinion was published by the Huffington Post on August 27, 2010.

Close Enough Isn't Good Enough
by Andrea Lyon
Author, Attorney, Professor of Law: DePaul University

August 27, 2010

Yesterday Judge William T. Moore Jr. of the Federal District Court in Georgia denied Troy Davis relief from his death sentence. This is the case that gained international as well as national attention, as the execution of a man who may very well be innocent loomed. In fact, the United States Supreme Court gave him a rare chance to clear his name when a year ago, the Supreme Court directly granted Mr. Davis a federal hearing to put his claim to the test -- a chance afforded no other American in at least 50 years. Mr. Davis had tried for many years just to get a hearing to present new evidence would that he said would clear his name in the 1989 killing of Mark MacPhail, an off-duty Savannah police officer. The Judge concluded after a lengthy 112 page opinion that "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors."

What is interesting about the opinion is that the judge assumes that it would be unconstitutional to execute someone who is innocent, although the United States Supreme Court has not ever quite said so. There is then a long involved and technical discussion of which of three standards should apply in making such a determination, lengthy recitations of various witness's statements, recantations, and his conclusion that Mr. Davis has not met the standard to show his innocence. True, there are recantations from most of the witnesses against him, but the law "disfavors" consideration of recantations, he opines, and besides the pressures put on these witnesses either from internal bias or pressure from the police, don't matter. What is missing from the opinion is a discussion of the fact that nearly everyone recanted, that there is no physical evidence linking Mr. Davis to the crime, or any real consideration as to whether Mr. Davis, Mr. MacPhail's family or the jury were deprived of something important -- a fair trial where all the facts were before them, rather than hidden. In other words, the cumulative effects of all of this error are brushed aside, and the technical rules triumph.

The case against Mr. Davis rested on the testimony most likely to result in a wrongful conviction -- that of eyewitnesses. In fact eyewitness misidentification accounts for 75 percent of wrongful convictions in over 200 DNA exonerations.

I have written before about the triumph of technicalities which may very well imprison, or even execute the innocent or someone whose mail got lost. ("Justice Trapped in a Technical Web", and "A Technical Death"). I recognize that I was not in the courtroom and did not hear the testimony presented to the judge -- but others were, and their impressions are very different. Here is what we should all be worried about -- sure, there is a place for finality in our system. A convicted person should not get to go back to court an infinite number of times. But if technical rules prevent him from presenting relevant, reliable evidence when he discovers it -- for example if a witness gets an attack of conscience about a lie (in this case a deadly lie) as did Kevin McQueen, one of the seven witnesses who recanted his testimony, testifying that he implicated Mr., Davis originally at his trial because he was mad at him, shouldn't there be a way to present that and have it fairly considered in the context of the totality of the evidence before we execute a man? McQueen testified that his earlier testimony that Mr. Davis said he shot someone was a lie. "The man did not tell me he shot anyone. Period." When asked what he hoped to gain by his testimony, he said, "peace of mind."

None of us should feel that same peace of mind about an execution under these circumstances, whatever our feelings might be about the death penalty. An execution is irrevocable, and close enough isn't good enough.

Tuesday, August 17, 2010

Additional Problems with Middle District of Florida U.S. Attorney Nomination

Additional Problems with Middle District of Florida U.S. Attorney Nomination

by James Scanlan

In Truth in Justice editorials of June 23, 2010, and July 11, 2010, I discussed the pending nomination of Robert E. O’Neill for U.S. Attorney for the Middle District of Florida. O’Neill is the prosecutor with the penchant for calling people liars who himself made a false statement in an application for the U.S. Attorney position submitted to the Florida Federal Judicial Nominating Commission. O’Neill stated that a District of Columbia Bar Counsel investigation of his conduct in United States v. Deborah Gore Dean had been initiated by a complaint filed by the defendant when in fact Bar Counsel itself initiated the investigation after reading a court of appeals opinion “deplor[ing]” the conduct of lead counsel O’Neill and his colleagues. I pointed out that if O’Neill made the same misrepresentation before a federal entity, he likely violated 18 U.S.C. § 1001. Irrespective of any violation of law, however, one would expect that making a false statement on an application for a high law enforcement position would disqualify a person from further consideration for the position. But, though for more than a month the Department of Justice and White House have been in possession of a document conclusively establishing that O’Neill’s statement was false, the nomination remains pending.

In the latter part of the July 11, 2010 editorial I discussed remarks O’Neill made in the Nominating Commission application criticizing a former subordinate. The subject of the remarks is former Assistant United States Attorney (AUSA) Jeffrey J. Del Fuoco, who has sued O’Neill on a number of matters, including defamation for statements O’Neill made about Del Fuoco in the Nominating Commission application. Del Fuoco has joined Attorney General Eric H. Holder, Jr. as a defendant as to certain issues. The suit is still in court, though a motion to dismiss is pending. I am not in a position to comment on the likely merits of any of the claims raised by Del Fuoco. But the complaint raises an additional issue concerning O’Neill’s credibility, and the government’s response to it raises an additional consideration regarding the likelihood that O’Neill violated 18 U.S.C. § 1001.

O’Neill’s Alleged Perjury in an Earlier Case. In addition to a claim regarding statements on the Nominating Commission application, Del Fuoco alleges that O’Neill defamed him in a 2005 deposition in an earlier case. In connection with that claim, at pages 6-9 of the complaint (¶¶ 20-22), Del Fuoco alleges that in the federal workplace O’Neill threatened bodily injury to Del Fuoco by means of statements made in the U.S. Attorney’s office to three AUSA’s (each of whom Del Fuoco identifies by name). The complaint also sets out deposition testimony from the earlier case where, while acknowledging that he may have made statements along the lines of those described by Del Fuoco, O’Neill denied that he made such statements in the workplace. Del Fuoco maintains that such denial constituted perjury by O’Neill.

I have no direct knowledge of the underlying facts. But Del Fuoco’s identifying of the three AUSAs would seem to suggest that O’Neill in fact made the statements in the workplace. And I am led to understand that, if asked, the AUSAs would so state. Department of Justice officials must know of the allegations since Department attorneys are representing O’Neill in the case. But neither in the vetting process for the U.S. Attorney nomination nor at any other time has a Department representative asked the AUSAs whether Del Fuoco’s allegations concerning O’Neill’s perjury in the earlier case are true. I am further led to understand that there is some concern within the Middle District U.S. Attorney’s office that the head of the office may soon be a person whom at least several people in the office know to have committed perjury and that, if Del Fuoco’s case goes forward, some of those people may be deposed on the matter. Having AUSAs in a position where their testimony could show the U.S. Attorney to have committed perjury will not be a comfortable situation for the AUSAs or the office, or, one would think, for the Department of Justice. As with varied matters I have raised with the Department about O’Neill’s conduct in the Dean case, if the Department had been willing to pose a few simple questions, it would not now be confronted with a problematic nomination or the prospect of a problematic tenure.

The Department of Justice’s Claims Regarding the Status of the Florida Federal Judicial Nominating Commission. In discussing the possibility that O’Neill violated 18 U.S.C. § 1001 by falsely stating that the defendant initiated the District of Columbia Bar Counsel investigation, I have mainly addressed the likelihood that O’Neill also made to a federal entity the statement that he made on the Florida Federal Judicial Nominating Commission application. But in some places I have suggested that O’Neill may have violated the statute even by making the false statement to the Nominating Commission because the statement could be regarded as involving a matter within the jurisdiction of the Department of Justice or the Office of Independent Counsel. When making such point regarding the statement to the Nominating Commission – which I have variously described as an “unofficial body,” “an arm of the Florida Bar,” or “a body created by Florida Senators” – I was uncertain as to the precise status of the body or the implications of that status, save that I did not regard the Nominating Commission to be federal entity.

I also did not know that in an April 26, 2010 Motion to Dismiss the Del Fuoco complaint (at 6), Department of Justice attorneys representing both O’Neill and the Department, in seeking to claim absolute privilege for O’Neill’s statements about Del Fuoco in the Nominating Commission application, have stated that the Nominating Commission is “a quasi-legislative body, established by members of the U.S. Senate.” Though the motion does not make the point because it is not germane to the argument, it is clear enough that the motion means “a quasi-federal legislative body.” Thus, there may exist another argument as why O’Neill violated 18 U.S.C. § 1001 by falsely describing the origin of the Bar Counsel investigation in his Nominating Commission application.

Additional developments regarding the O’Neill nomination/confirmation are addressed in Addendum 7 to a Robert E. O’ Neill profile on

Friday, August 13, 2010

Bringing Down a Giant

The following opinion, by Father Raymond J. deSouza, was published in The National Post (Canada) on August 12, 2010.

The worst moment of the late Ted Stevens' long political career was the most important.

Senator Stevens died in a plane crash on Monday, having spent forty years in the United States Senate. He devoted himself to bringing home the bacon to Alaska, and by all accounts his pork-barrelling was prodigiously successful. Americans regarded the geriatric senator -- decades in office, gaming the system for ever more extravagant dollops of federal largesse, then proudly cutting the ribbons on projects named in his honour -- as something of a noble figure. They resolutely re-elect such men for tenures that make most crowned heads seem transient.

So entrenched was Stevens that when he was defeated in the 2008 election it was regarded as a career prematurely cut short. Those who marinated in the Senate even longer than he did -- Ted Kennedy and Robert Byrd -- were at least allowed the monarch's privilege of dying in office. But Stevens was defeated by the slimmest of margins in 2008, having been convicted in a criminal trial just days before the election.

Stevens was convicted of something relatively minor but still criminal: making false statements on his Senate financial disclosure forms in relation to renovations on his Alaska home. The federal prosecutors -- from the justice department's public integrity section--claimed that Stevens knowingly underpaid for the renovations, rendering them an illegal gift or perhaps a bribe. Stevens was convicted on all counts and lost the 2008 election a week later by a margin of less than 1.5%. A forty year career apparently had ended in disgrace.

Then in February 2009 an FBI whistle-blower revealed that prosecutors had conspired to withhold exculpatory evidence from the defence and had falsified records. In particular, the prosecutors withheld testimony that the cost of the renovations was actually less than Stevens had paid. They also knew that the star witness was likely lying at trial when he said that a friend of Stevens had told him to ignore the senator's request for an invoice.

It was a monstrous miscarriage of justice. Prosecutors at the highest levels of the justice department had deliberately conspired to convict a man who should never have been charged. It was a wrongful conviction, done with malice aforethought. Absent the whistle-blower, the prosecutors would have gotten away with it. Once it was revealed, the attorney general, Eric Holder, withdrew the charges, vacating the conviction. The presiding judge, Emmett Sullivan, called it the worst case of prosecutorial misconduct he had seen in 25 years on the bench and initiated a criminal contempt investigation of the responsible prosecutors.

Ted Stevens was one of most influential senators in Washington. He could not have been prosecuted without the approval of the most senior and experienced lawyers in the justice department. If America's prosecutorial state could grind him up, then no one before American courts is safe from wrongful and malicious prosecution. Throwing innocent people in jail is not an anomaly in the American criminal justice system, but routine practice. Thanks to the whistle-blower we know what was done to Stevens. Imagine what is done daily to the human debris swept off America's streets.

Prosecutors were no doubt eager to take down the giant of Alaska politics. Such a grand prize required more than the usual abuse of state power by the prosecutors, and Ted Stevens would have died this week a convicted felon, absent one FBI agent who was sufficiently disgusted to blow the whistle on his law enforcement colleagues. Stevens' greatest legacy ought not be his artful manipulation of the appropriations system, but rather how his case exposed the top-to-bottom corruption of American criminal justice -- a scandal that ought to shake the rotten system to its foundations.

When Stevens was convicted in 2008, both presidential candidates called for him to resign, as did many of his longtime Senate colleagues. To their shame, they believed the American criminal justice system to be credible. If it wasn't evident before, the Stevens case has made clear that no one should ever be considered guilty solely because of a verdict in an American court. The abuse of prosecutorial and police power is so rampant that a guilty verdict means nothing in itself. No doubt guilty people are indeed convicted, but a person should not be considered guilty solely by reason of his conviction.

In Canada, we should not be smug. We have our own parade of wrongful convictions. Just this week the Ontario government announced niggardly compensation for parents who were wrongfully convicted of molesting and killing their own children. Here the overzealous prosecutors employed the false testimony of an incompetent pathologist. America's shameful justice system should be a warning to us--it can happen here too.

Sunday, August 08, 2010

They didn't do the crime, but they did the time. How to better prevent wrongful convictions

The following op-ed article by Keith Findley was published in the Milwaukee Journal-Sentinel on August 7, 2010.

Robert Lee Stinson spent more than half his life in prison for another man's crime.

He was a young man, barely 20, in 1985 when he was sent to prison for life for a Milwaukee rape and murder. Twenty-three years later, when he was in mid-life at 44, he was exonerated and freed. New scientific evidence, including DNA, excluded him and identified another man as the perpetrator.

Stinson's wrongful conviction is not unique. Nationwide, at least 255 people have been exonerated by DNA in the past two decades, including at least a half-dozen in Wisconsin. In Milwaukee alone, three men have been exonerated by DNA in murder cases in the past 18 months, including Chaunte Ott and William Avery, as well as Stinson. In Ott's and Avery's cases, DNA testing not only established their innocence but also matched Milwaukee's infamous alleged serial killer, Walter Ellis.

Commendably, Milwaukee County District Attorney John Chisholm has responded by initiating a project to review all Milwaukee homicides since 1992 and obtain testing in those cases in which the DNA can demonstrate innocence or confirm guilt.

The DNA exonerations not only have corrected injustices on a scale previously unimagined, they also have provided an unprecedented opportunity to learn about the causes of and remedies for error in criminal cases. These cases reveal not isolated mistakes, but systemic flaws. They reveal that wrongful convictions have identifiable causes, causes that can be addressed. Because so much is at stake, they must be addressed.

The cases teach that the leading causes of wrongful convictions include eyewitness identification error, police interrogation tactics that produce false confessions, flawed forensic science evidence, false jailhouse snitch testimony, prosecutorial misconduct and inadequate defense counsel.

In response, Wisconsin has adopted significant reforms to minimize eyewitness error (by reforming the methods used by police to obtain identifications) and false confessions (by requiring electronic recording of custodial interrogations). Much more can still be done in these areas. At the same time, Wisconsin also must address other causes of wrongful convictions.

Stinson's case, for example, highlights one of the most significant of these causes: flawed forensic science. Stinson was put away based almost entirely on expert testimony purporting to match bite marks on the victim's body to Stinson's teeth. Subsequent scientific analysis proved that conclusion flat wrong. In fact, Stinson could not have been the source of the bite marks. DNA from saliva on the victim's shirt matched another man, who confessed when confronted with the evidence.

More fundamentally, Stinson's case illustrates an alarming point the DNA exonerations now have confirmed: Most of the forensic sciences we routinely rely on lack solid scientific foundations.

In 2009, the National Academy of Sciences - the nation's pre-eminent scientific authority - issued a congressionally mandated report. It concluded that, with the exception of DNA, no forensic science - including everything from bite marks to ballistics and even fingerprints - has a solid scientific foundation.

Moreover, with the exception of DNA analysis, no forensic method has been rigorously shown to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. These disciplines still have important roles to play, but all need substantial research to validate basic premises and techniques, assess limitations and discern the sources and magnitude of error.

The cornerstone of the NAS' recommendations call for Congress to create a national oversight body charged with improving and regulating forensic sciences. Congress should act promptly to enact that legislation.

Meanwhile, there is much that also can and should be done at the state level. A comprehensive program is needed to increase the incentives for research and training in forensic sciences; establish uniform protocols and standards for analyzing and reporting on scientific evidence; and make crime laboratory work more objective, transparent and accessible to both sides in criminal cases.

Reform is also needed to address other recurrent causes of wrongful convictions. Attention must be paid, for example, to the misuse of jailhouse informants - inmates or co-defendants who snitch on each other, often untruthfully, in hopes of obtaining leniency in their own cases.

Exoneree Chaunte Ott, for example, was convicted of murder based primarily on the testimony of two co-defendants, who received deals for their testimony (testimony they later recanted when DNA cleared Ott).

Serious attention also must be paid to inadequate funding for prosecutors and defense attorneys. Despite the established risks caused by stretching prosecutors and defense attorneys too thinly, the state repeatedly has failed to increase funding. The hourly rate for appointed defense attorneys is lower today than it was more than 30 years ago. Wisconsin's system is so severely under-resourced that it is close to a crisis point.

We must not squander the opportunity for learning and reform provided by the DNA exonerations. DNA evidence does not alone solve all problems, because DNA is available in only a small percentage of cases.

Wisconsin must urgently renew its commitment to best practices in the criminal justice system to ensure both that the innocent are protected and that the guilty are not left free to threaten public safety.

Keith Findley is a clinical professor at the University of Wisconsin Law School, co-director of the Wisconsin Innocence Project and president of the Innocence Network.