Justice Deferred
Will Texas tackle wrongful convictions?
DAVE MANN
OCTOBER 30, 2009
POLITICAL INTELLIGENCE
Anyone who believes the criminal justice system in Texas is
functioning properly should be locked in a room and forced to listen
to Cory Session talk about his half-brother.
His name was Tim Cole. He was a Texas Tech University student falsely
convicted in 1986 of rape. Tainted police lineup procedures led the
victim to misidentify Cole as her attacker. He spent 13 years in
prison for a crime he didn’t commit. He didn’t live to see his name
cleared. In 1999, Cole died in prison of complications from asthma.
On Oct. 13, some of the leading criminal justice experts in the state—
including lawyers, judges, and policymakers—gathered for the first
meeting of the Tim Cole Advisory Panel on Wrongful Convictions. It
was ostensibly an organizational meeting. But the first order of
business was Session. Sitting next to other members of Cole’s family
at a long conference table, Session described Cole as a college
student trying to live the American dream. “This was my brother,”
Session said through tears. “This was my mother’s son. He never met
my children. He never married.”
Session suggested that flags on all state government buildings be
lowered to half-staff on Dec. 2—the date Cole died in prison—to
acknowledge everyone who’s been wrongly convicted.
“Tim died in prison while being oppressed,” Session said. “Let’s not
let it happen again. ... If it can happen to Tim, it can happen to
anyone.”
Last year, after DNA testing proved his innocence, Cole became the
first person exonerated posthumously in Texas. His story made
national news and prodded the Legislature to enact two bills in
Cole’s name (one increased compensation for the wrongly convicted;
the other created the panel). The panel is to deliver recommendations
to the Legislature in January 2011.
Much of the first meeting revolved around reforms that didn’t pass
the Legislature this year, including a bill to fix police lineup
procedures. Had the bill been law in 1985, it might have saved Tim Cole.
Many panelists agreed broadly on the causes of wrongful convictions.
There isn’t much left to study on the topic, and some panelists
argued the committee should focus its energy on a political strategy
to pass the reforms.
“We don’t need to study it anymore,” said Barry Macha, the Wichita
County district attorney and the panel’s representative from the
Texas District & County Attorneys Association. “We know what the
problems are. We know what the solutions are. We just need to pass it.”
Macha said DAs support many of the reform bills, including those
addressing lineups, videotaped confessions, and better access to the
courthouse for wrongly convicted prisoners.
Others at the table disagreed. Rep. Pete Gallego, the Alpine Democrat
who chairs the criminal justice committee in the state House, said
the compromise versions of the reform bills this past session were
weak. “It’s easy to support weak stuff,” he said. Gallego argued that
the panel should debate the details and make specific recommendations.
The open question is whether the inquiry named after Tim Cole can
lead the way to reform. Or will it be another blue ribbon panel that
produces another well-intended report that ends up in a drawer?
Will Texas tackle wrongful convictions?
UT law students help exonerate 2 men in robbery-murder
By Chuck Lindell
AMERICAN-STATESMAN STAFF
October 24, 2009
Two Dallas men, freed Friday after serving 12½ years in prison for a
murder they did not commit, are the first inmates to be exonerated
with help from the University of Texas Center for Actual Innocence.
Applause filled the Dallas courtroom as Claude Simmons Jr. and
Christopher Scott were released from life sentences in an agreement
between prosecutors and defense lawyers. Next, the state's highest
criminal court will be asked to overturn their capital murder
convictions, after which charges will be dropped.
"I never gave up hope because I believe in God, and God knew that I
was innocent," Simmons said, breaking into tears as he recalled
missing his father's funeral while in prison.
Simmons, 54, and Scott, 39, were convicted of killing Alfonso Aguilar
in a 1997 home invasion robbery based almost entirely on eyewitness
identification by Aguilar's wife, who was in their Dallas home during
the shooting.
Simmons contacted the UT innocence center in 2005 seeking help in
challenging his conviction — one of about 1,000 such requests
received annually.
He passed the center's first weeding-out process after filling out a
questionnaire that detailed a potentially valid innocence claim, and
students with the law school's Actual Innocence Clinic were assigned
to investigate.
Students quickly spotted one problem. Aguilar's wife first identified
Scott as a shooter when she saw him handcuffed in a police station,
but she could not pick him out of a photo lineup a short time later.
That raised questions about a tainted identification because she
later pointed to Scott from the witness stand.
But Simmons' most intriguing claim — that Alonzo Hardy, an inmate in
another prison, was prepared to confess to the Aguilar killing — sent
law students Ashley Burns and Dana Scott to visit Hardy's prison in
Lovelady, a small town a half-hour north of Huntsville.
"I went in skeptical because we have to sort through and investigate
so many meritless claims. People will say anything to get out of
prison," Burns said. "But from what Alonzo Hardy told us, we knew for
a fact, when we walked out of that prison, that Claude Simmons was
innocent."
Hardy, serving 30 years for aggravated robbery, perfectly described
Aguilar's house and clothing and the shooting circumstances, Burns said.
He also implicated an accomplice, Don Michael Anderson, as the shooter.
And Hardy answered both students' biggest question: Why confess now?
Anderson had threatened harm to Hardy's mother if the truth came out,
Scott said. "He said his mother passed away earlier that year, so he
felt free to come forward," she said.
Anderson was arrested earlier this week and charged with capital murder.
The UT students also learned that another group, the UT-Arlington
Innocence Network, was investigating Simmons' claims, and the two
organizations combined their efforts.
An investigation by the Dallas County district attorney's Conviction
Integrity Unit and Dallas Police Department followed, leading to
Friday's hearing and Simmons' and Scott's release on personal
recognizance bonds.
clindell@statesman.com, 912-2569.
Includes information from The Associated Press.
UT law students help exonerate 2 men in robbery-murder
Texas justice system getting much needed examination
By Paul Williamson
Columnist
Published: October 15, 2009
In 1985 Texas Tech was hit by a series of rapes. This prompted
Lubbock police to send a female undercover officer to Tech’s campus
to try to lure the Tech rapist.
This is when the officer was approached by Timothy Brian Cole. This
act alone caused him to become Lubbock’s prime suspect and put his
Polaroid picture in a lineup of photos to show to victims.
It was the only color photo (along with four black and white photos)
shown to Michele Mallin, who was a victim of rape on campus. After
police and prosecutors described Cole as a “low-life hood” and showed
her the photo, she immediately identified Cole as the rapist. Her
eyewitness testimony was all that was needed to convict Cole of rape
and sentence him to 25 years in prison.
In 1995, Jerry Wayne Johnson started his attempts to contact Cole and
try to confess to the crimes he committed. This attempt was ignored
by the Texas justice system and his letter never reached Cole.
Cole died in 1999 of an asthma attack in prison.
Last year, DNA evidence proved Johnson was the real rapist and Cole
was proven innocent.
Coles’ story is one that is tragic but is making way for the Texas
justice system to reform itself. Last May, the Texas government
passed legislation creating the Timothy Cole Advisory Panel on
Wrongful Convictions. It is a panel that will discuss and research
ways in which the criminal justice system can prevent something like
this from happening again.
The panel had its first meeting Tuesday.
One of the biggest reasons why wrongful conviction occurs is because
of incorrect eyewitness testimony, as was the case with Cole and
Mallin’s testimony. Mallin is now a major supporter of eyewitness
reform.
There are new developments in eyewitness accounts that increase their
accuracy. According to the Justice Department, law enforcement
agencies should take many precautionary steps to not encourage the
witness to identify someone. Such as describing some as “low-life
hood” and show them the picture. That should be a no-no.
An example is the use of double-blind lineups. This is when not only
does the witness not know which of the individuals is the suspect,
but the person conducting the line up does not know either. This way
the law enforcement person does not accidentally give away clues as
which one is the suspect.
Also, they could show people one by one to prevent a witness from
comparing individuals and seeing which one best fits their
description. This is just one of many things the panel will look into
when it comes to wrongful convictions.
Since DNA testing began in 1989, hundreds of people have been proven
innocent. This includes individuals on death row. Can you imagine
what it is like to be convicted to death for a murder you never
committed?
This is the exact reason why the death penalty should be banned. The
mere chance of killing an innocent person, which has happened, should
be reason enough to ban the death penalty. Even in the age of DNA
testing someone could easily be wrongfully convicted. In my hometown
of Houston, scandals hit our crime lab where DNA evidence was not
handled correctly and lead to many wrongful convictions.
The story of Cole is heartbreaking. But his spirit lives on and his
death hopefully will not be in vain as his story is one that has
inspired reform in our system to provide for real justice.
Texas justice system getting much needed examination
Tim Cole panel begins yearlong look at judicial safeguards
Posted Tuesday, Oct. 13, 2009
BY DAVE MONTGOMERY
dmontgomery@star-telegram.com
AUSTIN — A blue-ribbon panel named after a wrongfully convicted
inmate from Fort Worth is beginning a prolonged mission toward
reforming criminal justice in Texas, fueled by a ballooning
controversy over the possibility that the state may have executed an
innocent man.
The Tim Cole Advisory Panel on Wrongful Convictions will conduct its
first meeting today, starting a yearlong effort toward recommending
new safeguards against erroneous convictions.
The panel’s review parallels an uproar over the shakeup of a state
commission seeking to determine whether a flawed arson investigation
led to the 2004 execution of Cameron Todd Willingham, an unemployed
mechanic from Corsicana.
Cole was wrongfully convicted in 1986 and died in prison 13 years
later before being posthumously exonerated this year. His brother,
Cory Session, also of Fort Worth, said he plans to cite the
Willingham case when he addresses the panel.
"It’s hard to overlook the possibility that an innocent man was
executed," Session said. "Just like my brother Tim till the day he
died, they both said, 'I didn’t do it.’ We just can’t take it lightly
anymore when somebody says they’re innocent."
Willingham case
Willingham was found guilty in the deaths of his three daughters in a
1991 fire. He said he was asleep in his house when the fire started
and reasserted his innocence in a final statement before he was
executed in 2004.
Corsicana officials have vigorously defended the investigation,
pointing to inconsistencies in Willingham’s statements and other
factors. But nationally prominent fire expert Craig Beyler, in a
report prepared for the Texas Forensic Science Commission, denounced
the investigation into the fire at the Willingham home and said it
didn’t "sustain" a finding of arson.
The case touched off an uproar less than two weeks ago when Gov. Rick
Perry dismissed three members of the commission, forcing the
cancellation of a meeting to hear the Beyler report. On Friday, Perry
dismissed a fourth member and named two new appointees, including
Fort Worth attorney Lance Evans.
Authority questioned
Ousted Chairman Sam Bassett, an Austin attorney, told the Chicago
Tribune over the weekend that two top staff members from Perry’s
office sought to apply pressure on him over the direction of the
inquiry. Bassett offered additional details of his February meeting
with the Perry staffers in a telephone interview Monday with the Star-
Telegram.
Bassett said that then-General Counsel David Cabrales, now a Dallas
attorney, questioned whether the inquiries into arson cases against
Willingham and Ernest Ray Willis met the criteria of the 2005 statute
that created the commission. Willis was convicted — but later
exonerated — in a fatal house fire in Iraan, in West Texas, in 1986.
"He didn’t think that type of investigation by the Forensic Science
Commission was the type of investigation that the legislation that
created the commission was intended to address," Bassett said.
Present during the meeting was Mary Anne Wiley, another staff member
in the general counsel’s office who is also the governor’s
representative on the Tim Cole panel.
Bassett said Cabrales also told him that the commission was "supposed
to be more forward-looking and not going back and looking at the old
cases."
'No threats’ made
Cabrales referred questions to the press office. Allison Castle, a
spokeswoman in the governor’s office, said Cabrales told her that "he
was simply wanting to make sure that Mr. Bassett was comfortable"
that their work was within the scope of the 2005 statute.
"The governor’s office and the governor do not micromanage the work
of the boards and commissions," Castle said.
Bassett said that, although there were "some fairly intense questions
about why the commission was conducting these investigations," there
were "no threats."
"They never explicitly said you’ve got to stop this investigation,"
he said. "They never said that."
Perry has defended the dismissals as part of the normal appointments
process, but critics have accused the state’s longest-serving
governor of gutting the commission to avoid potentially embarrassing
findings while he is seeking re-election.
End to 'junk science’
Some issues raised in the Willingham case will likely be included in
the long-range study by the Cole panel as it seeks legislative
remedies to criminal justice flaws in Texas. Session and his mother,
Ruby Session, have joined the Innocence Project of Texas in urging
the panel to review the use of "junk science" — a term that critics
have used to describe the arson investigation in the Willingham case.
Tim Cole became the face of the legislative effort that led to
creation of the panel during the 2009 session. "Texas still has a
long way to go to ensure that the innocent remain free and the guilty
are brought to justice," said state Sen. Rodney Ellis, D-Houston, who
sponsored legislation creating the panel.
The 10-member panel, which will work under the umbrella of the
state’s Task Force on Indigent Defense, will conduct a study and
recommend new laws to the 2011 Legislature. Its goals include
overcoming mistaken eyewitness identifications and false confessions
— which account for a large percentage of wrongful convictions in
Texas — and increased funding to defend indigent people.
Texas ranked 44th in funding for indigent defense in 2005, spending
$6.14 per capita, according to Ellis’s office. Texas has had 41
convictions overturned by DNA, more than any other state.
Tim Cole panel begins yearlong look at judicial safeguards
Man freed after 14 years of sentence
Associated Press
Oct. 12, 2009
DALLAS — A convicted murderer who has been jailed for 14 years is
free after Dallas prosecutors acknowledged his original trial was
tainted.
Thirty-four-year-old Richard Miles was sentenced to 40 years in
prison during his 1995 trial for murder and attempted murder. He was
freed on a personal recognizance bond Monday.
The Dallas County district attorney has acknowledged that police
didn’t disclose evidence that implicated another suspect. Miles’
former attorney never learned that police received an anonymous tip
from a woman who said her ex-boyfriend showed her a pistol he said he
used in the 1994 shootings that left one person dead and another
disabled.
Dallas DA Craig Watkins said authorities are investigating whether he
is innocent.
Man freed after 14 years of sentence
Better late than never, DNA lets innocent people reclaim liberty
Published Date: 12 October 2009
THERE have been 244 "exonerees" since the creation of the Innocence
Project in the United States 17 years ago. Exoneree is an unwieldy
but precise term invented within the Innocence Project to describe
the prisoners it has helped to release not on ambiguous technical
grounds of mistrial but because examination of the DNA evidence from
the crime scene established that they didn't do it. They were
innocent of the crimes they were jailed for.
Seventeen of the 244 had served time on death row. They would have
been executed for crimes they did not commit. Most others had
sentences measured in decades.
The Innocence Project was founded by Barry Scheck and co-director
Peter Neufield. Scheck is best known in this country for his part in
the 1995 OJ Simpson defence team and later as defence lawyer for the
British nanny Louise Woodward.
Scheck and Neufield wanted to apply the still relatively new science
of DNA profiling as its inventor, Professor Alex Jeffreys, originally
envisaged – as proof of innocence. The assumption among the public
and prosecutors of the world had quickly become that DNA evidence was
a failsafe tool for securing convictions.
The first raft of cases on the Innocence Project books involved
people – almost entirely men – whose convictions predated the arrival
of DNA profiling.
But in their rather austere offices downtown on New York City's 5th
Avenue, the banks of filing cabinets contain hundreds more active
cases in which available DNA evidence was ignored, or wrongly
analysed. Exoneree number 245 is likely to be one Ernest Sonnier, who
was freed on bond in August after 23 years in Texas prisons for a
rape he didn't commit. DNA testing eventually proved Sonnier's
innocence of the attack on Christmas Eve 1985 and implicated two
other men.
His conviction had preceded the invention of DNA profiling and had
been based on identification from photographs by the victim and by
evidence from the scientist who examined blood-group evidence and who
gave testimony that implicated Sonnier, even though his own written
report tended to exclude him as the assailant.
Stephen Saloom, policy director of the project, says
misidentification is a factor in a high proportion of wrongful
convictions and in particular rape and sexual assault cases.
Although all participants in the criminal justice process agree that eye-
witness testimony is the least reliable evidence, it remains so often
the clinching moment in the theatre of a trial. A woman who was
undoubtedly raped points to the accused in the dock and says it was
him. How difficult it must be for a jury not to convict. But in
dozens of the Innocence Project cases, she was wrong. Honest, but wrong.
Misidentification is most common when the victim and accused are from
different races. In the project's most recent newsletter, Saloom
lists the other common causes of wrongful conviction.
They include inadequate forensic scientific analysis. It is
extraordinary to discover that, in the land of CSI, there are no
basic general standards of validation for forensic examiners. The
threshold in some counties is very low. In a number of wrongful
conviction cases, forensic scientists have actively engaged in
misconduct.
About a third of cases involved false confessions by young or
mentally suggestible accused. Audio and DVD recording of police
interviews is required throughout Scotland but is still patchy across
the US.
About 16 per cent of cases involved "snitch testimony", in which
other prisoners – and sometimes the actual perpetrator – had given
statements that incriminated the accused in return for deals, special
treatment or the dropping of charges.
In the meantime, how have the 244 exonerees fared after their
campaign for release has at last succeeded and the prison doors have
closed behind them? "Mixed," say Angela Amel and Karen Wolff, the
two- person social work team charged with easing the transition back
to life outside.
"There is very little in the way of support services for any ex-
prisoner on release in most states," says Wolff. "Bizarrely, if you
are released because you turned out to have been wrongly imprisoned
then you may not be eligible for what little there is. That will be
linked to parole conditions and our guys aren't on parole."
Wolff is a lawyer turned social worker. Amel is a career social
worker, previously employed on a youth homelessness project in New
York City. "There were more 'f*** yous' than 'thank yous' in that job
compared to this," she says. "I guess our guys had to be perseverers
in jail to stick with their campaign for release for year after year.
So they understand they have to persevere again when they get out,
usually with just the clothes they stand up in."
More than half the American states have no system of compensation for
wrongful convictions. The others grind extremely slowly. "An exoneree
needs support the day he gets out," says Wolff. "Three years later is
too late."
Their first task is to give the exoneree an identity. "With no bank
account or driving licence or credit record for 20 years, they are
invisible to day-to-day society."
The Innocence Project now boasts a panel of celebrity supporters, and
prolific author John Grisham is on the board of directors. His
"faction", The Innocent Man, told the story from wrongful conviction
to derelict death of exoneree No 59, Ron Williamson.
Optimists might have hoped the project would be beginning to run out
of cases to investigate after 17 years.
Alas not, according to Scheck. "When we founded the project, our
intention was to exonerate as many innocent people from prison as
possible, identify the causes of those wrongful convictions, and use
them to reform the criminal justice system.
"DNA exonerations are just the tip of the iceberg of issues within
our system. Over the past two decades, the exonerations we have
secured have led to sweeping reforms in how line-ups and
interrogations are conducted, how evidence is collected, and how our
system of justice handles claims of innocence.
"We still have a great deal of work to do, but we've made more
progress already than anyone thought possible."
Better late than never, DNA lets innocent people reclaim liberty
Dallas inmate set to be freed after buried evidence found
October 7, 2009
By STEVE McGONIGLE and JENNIFER EMILY
The Dallas Morning News
Dallas County jurors who sent Richard Miles to prison for 40 years
never knew another man had been implicated in the same shooting
incident.
It took 14 years and detective work by a prisoner advocacy group to
unearth reports in police files that suggested others could have
committed the murder and attempted murder that sent Miles to prison.
That discovery is set to get Miles released on Monday.
Dallas County prosecutors have agreed to dismiss his 1995 convictions
because police failed to turn over exculpatory evidence.
State District Judge Andy Chatham is expected to release Miles on
bond pending a final decision from the Texas Court of Criminal Appeals.
Miles' defense attorney, Cheryl Wattley, said she was optimistic he
would not face a second trial.
The claim that Miles, 34, is innocent is still being investigated by
the DA's office.
"We have serious questions as to whether he was convicted of a crime
that was committed by someone else," said Mike Ware, who oversees the
DA's conviction integrity unit.
Miles was convicted in the May 1994 shootings of Deandre Williams and
Robert Ray Johnson Jr. near a gas station in the Bachman Lake area.
Both men were shot multiple times while sitting in a car. Williams
died. Johnson lived but was permanently disabled.
If Miles is exonerated, he would be the second man District Attorney
Craig Watkins has agreed was wrongly convicted in cases that did not
involve DNA evidence.
Miles would be at least the sixth Dallas County inmate in the last
two years to have his conviction voided because exculpatory evidence
was not disclosed.
Miles said Wednesday in a jailhouse interview that he was easy
pickings for police and prosecutors. He was on probation for drug
possession.
"At 3 o'clock in the morning, I'm walking home and I was the only one
there," said Miles.
Miles said he had run away from home at age 18 before finishing high
school. His father was a minister and his mother was a choir director.
He was estranged from his parents at the time of his arrest. But his
time in prison brought them closer together, Miles said. His father
died in May and Miles said he calls his mother every night.
Dallas police arrested Miles about 20 minutes after the shooting
while he walked along Lemmon Avenue. Miles, then 19, told police that
he was going to a friend's house to spend the night.
A witness to the shooting, Marcus Thurmond, identified Miles as the
gunman after he saw police remove the handcuffed man from a patrol
car. He also selected Miles' picture from a photographic lineup about
an hour later.
Miles was the only man in the lineup wearing a white tank top,
clothing that several witnesses ascribed to the gunman. Witnesses
also said the shooter held the gun in his right hand and wore shorts.
Miles is left-handed and was wearing long jeans.
"Richard Miles was in the wrong place at the wrong time wearing the
wrong colored tank top," said Jim McCloskey, president of Centurion
Ministries, which has been reinvestigating the case.
Six other witnesses, including the surviving victim, made no
identification.
Thurmond's identification was the key state's evidence in Miles'
trial in August 1995. The lead detective, Billy Hooker, testified
that he had no suspects other than Miles.
Hooker, who retired before the trial, could not be reached Wednesday.
The trial prosecutor, Tom D'Amore, who is now a defense attorney, did
not return calls.
Miles presented an alibi defense. Two friends testified that he spent
the hours before the shooting in south Oak Cliff and was headed home.
Ed Gray, Miles' court-appointed trial attorney, said he suspected
that police had not been forthcoming. "I knew they were hiding
something," he said. "But it was like, where do you dig when
everybody denies it."
Gray said he never knew about an anonymous tip that police received
in May 1995. A woman said her former boyfriend had admitted the crime
to her and showed her the 9 mm pistol he said he had fired.
The report identified the alleged perpetrator as a 24-year-old drug
dealer. Records show he had a criminal record for gun possession and
assault. The Dallas Morning News is not publishing his name because
he has not been charged with the crime.
The report remained buried until Joan Jennings, a case screener for
Centurion Ministries, found a copy amid the contents of the police
case file she received under an open records request.
Miles said that he first saw the report about the anonymous call in
October 2007. He said that he immediately knew the withheld
information would someday win his freedom.
"You're not supposed to cry in the penitentiary, " Miles said. "I
cried because I knew this was going to be my freedom."
Jennings also found a second police report that showed the victims
had been involved in an altercation with another man five days before
the shooting. That report was also withheld from Miles' defense.
Neither report was found in prosecution files in the case, bolstering
the conclusion that they were never shown to the defense as required
by law.
Centurion learned about the Miles case from Joyce Ann Brown, a Dallas
woman that the organization helped to free.
McCloskey said he had never found a document that so clearly proved
that a conviction had been obtained illegally.
"It's just manna from heaven," he said.
Dallas inmate set to be freed after buried evidence found
DNA proves guilt of Dallas man claiming innocence
© 2009 The Associated Press
Oct. 1, 2009
DALLAS — DNA testing has confirmed the guilt of a Texas man who had
claimed that he was wrongly convicted.
The Dallas County District Attorney's office announced Thursday that
DNA testing showed Timothy Hill was guilty of a 1997 sexual assault
for which he pleaded guilty to a year later. He received a 20-year
sentence.
Hill filed a motion for post-conviction DNA testing, which was
granted in January 2008.
District Attorney Craig Watkins says Hill has "earned himself a
return bus ride to prison," and that he will notify the parole board
of Hill's frivolous innocence claim.
Dallas County leads the nation in DNA exonerations of the wrongly
convicted, having seen 21 guilty verdicts set aside since 2001. Most
of the county's DNA testing has confirmed the original guilty verdicts.
DNA proves guilt of Dallas man claiming innocence
DNA proves guilt of Dallas man claiming innocence
© 2009 The Associated Press
Oct. 1, 2009
DALLAS — DNA testing has confirmed the guilt of a Texas man who had
claimed that he was wrongly convicted.
The Dallas County District Attorney's office announced Thursday that
DNA testing showed Timothy Hill was guilty of a 1997 sexual assault
for which he pleaded guilty to a year later. He received a 20-year
sentence.
Hill filed a motion for post-conviction DNA testing, which was
granted in January 2008.
District Attorney Craig Watkins says Hill has "earned himself a
return bus ride to prison," and that he will notify the parole board
of Hill's frivolous innocence claim.
Dallas County leads the nation in DNA exonerations of the wrongly
convicted, having seen 21 guilty verdicts set aside since 2001. Most
of the county's DNA testing has confirmed the original guilty verdicts.
DNA proves guilt of Dallas man claiming innocence
Mother files lawsuit over son's wrongful conviction
9/25/2009
By: News 8 Austin Staff
The mother of an innocent man who died in prison has filed a lawsuit
against the officers who arrested her son.
Tim Cole was convicted of raping a Texas State University student in
1985. He was sentenced to life in prison, and died there in 1999.
Cole served 13 years behind bars, despite another inmate's confession
to committing the crime.
In 2008, DNA evidence proved Cole's innocence. His mother filed a
lawsuit against four Lubbock police officers and one Texas State
police officer who were involved in her son's arrest.
Mother files lawsuit over son's wrongful conviction
Exonerated man fights $1 million payout to lawyer
Posted Wednesday, Sep. 23, 2009
BY MITCH MITCHELL
mitchmitchell@star-telegram.com
A man freed from prison by DNA evidence has asked a judge to stop his
former lawyer from taking more than $1 million in fees out of his
expected $4 million in state compensation.
Lawyers for Steven C. Phillips, 51, filed a petition in state
district court in Dallas asking the judge to declare an agreement
with his former lawyer "unconscionable and thus unenforceable."
That contract with his former lawyer obligated Phillips to give up
one-fourth of his award from the state for the 24 years he spent
incarcerated for a string of sexual assaults the courts now say he
did not commit.
"I’ve got kids and grandkids out here," Phillips told the Star-
Telegram. "That’s what I’m fighting for now. I’ve seen a lot of
unfairness in my life. If now I get a chance to stand up against some
of that unfairness, well I’m going to."
Phillips’ previous attorney, Kevin Glasheen, said he and his firm
worked on behalf of Phillips and nearly a dozen other exonerees to
win increased payments from the state in exchange for a cut of the
proceeds. He said his firm worked diligently to increase the payments
by steering a new bill through the Legislature.
The law increased the compensation for exonerees from $50,000 to
$80,000 for each year they spent in prison. The law also gives
exonerees monthly annuities as long as they do not get in legal trouble.
"Our law firm has spent thousands of dollars and hundreds of hours of
work for this client," Glasheen said. "Steven Phillips would have
recovered $1.25 million and he will now recover more that $4 million.
We took a tremendous amount of effort and a tremendous amount of
money getting this done."
But Randy Turner, who now represents Phillips, says $1 million is way
too much.
Phillips could have received more than $1 million by simply filling
out a one-page form and sending it to the state comptroller’s office,
Turner said.
"In my opinion, the fee this lawyer is trying to charge is obscene,"
Turner said.
Phillips said he bears no ill will against Glasheen and his firm.
But he said there is a big difference in the deal he was presented
before the law was enacted and what he will actually receive.
Proponents of the legislation originally asked for free healthcare
and $250,000 to be paid to exonerees for each year they spent in prison.
"All that was bargained away," Phillips said.
Glasheen said Phillips never had to accept the state’s money. The
firm would have been happy to sue on his behalf if what was being
offered was not enough.
Glasheen said his firm intends to collect all of what it is owed, in
addition to being compensated for the cost of defending its contract.
Another lawsuit is in the offing, Glasheen said.
"Phillips stands to be out of more than $1 million," Glasheen said.
"Perhaps quite a bit more."
In my opinion, the fee this lawyer is trying to charge is obscene."
Randy Turner, Steven C. Phillips’ attorney.
Exonerated man fights $1 million payout to lawyer
Editorial
Making forensic science scientific
Establishing national forensic science standards is crucial when
evidence determines life or death.
September 21, 2009
With the busiest death chamber in the nation, it was only a matter of
time before Texas positioned itself to become the first state to
admit that it executed a person who was wrongfully convicted. And now
that day is at hand.
According to a nationally respected fire engineer, the so-called
scientific evidence used to convict Cameron Todd Willingham of
setting a blaze that killed his three daughters in 1995 was not
scientific at all. In his scathing report to the Texas Forensic
Science Commission, Craig Beyler found that the arson investigators
on the case had a poor understanding of fire dynamics and based their
conclusions on erroneous assumptions, sloppy research and a dash of
mysticism. For example, one investigator determined that, because the
house fire burned "hot and fast," an accelerant such as gasoline had
been used to set it. But that theory -- still given credence in some
investigatory circles -- is not factual. Gasoline fires are not
significantly hotter than those started with wood, Beyler reported.
Willingham's case is heartbreaking: He lost his children to fire and
his wife to divorce, spent 12 years in prison and died still
protesting his innocence. But his is not an isolated case. There are
thousands of Willinghams in prisons across the country. If not on
death row, they are nonetheless serving decades-long or even life
sentences after having been convicted on the basis of erroneous
scientific conclusions made by poorly trained "experts."
In 2006, Congress charged the National Academy of Sciences with
studying the application of forensic science in the U.S. judicial
system. Its findings, released last year, are grim. Almost every
branch of forensics but DNA testing -- hair and fiber analysis, arson
investigations, comparisons of bite marks -- lacks the extensive
scientific research and established standards to be used in court
conclusively.
Consider: Last year, the Innocence Project, a New York-based public
policy and litigation organization, helped exonerate Kennedy Brewer,
a Mississippi man who had been convicted in 1992 of raping and
killing a 3-year-old girl. DNA testing was not available at the time,
and the primary evidence against him was that bite marks on the
child's body matched his teeth. Examination of the marks by national
forensics experts determined that they were not even made by a human
mouth: Her body had been dumped in a pond and insects had attacked
it. Subsequent DNA testing also excluded Brewer as the rapist.
In February, the science academy issued a report calling for Congress
to create a national institute of forensic science, and there is more
than enough evidence that one is desperately needed. As an
independent agency, not part of the Justice Department, it would be
charged with conducting research, setting national standards for
forensic disciplines and enforcing those standards. Right now,
standards vary wildly. An expert in San Diego, for example, might
testify that a fiber is similar to one found at a crime scene, while
an expert in San Bernardino might testify that a match is impossible
to determine.
Advances in forensics have revolutionized the judicial system, aiding
both prosecutors and defense attorneys, exonerating the innocent and
confirming the guilty in ways that were impossible just a generation
ago. The patchwork state of forensic science should not become an
excuse to shy away from its use; rather, the nation should invest in
the rigorous research required to standardize techniques and
application.
The Senate Judiciary Committee held hearings on the science academy's
recommendations this month, and it is to be hoped that the end result
is a national forensics institute. The fate of thousands hangs on the
correct analysis of a thread, a hair, the fibers of a rug. We can do
better by them, even if it's too late for Willingham.
Copyright © 2009, The Los Angeles Times
Making forensic science scientific
Texas group derides scent IDs as junk science
By JEFF CARLTON
Associated Press
Sept. 18, 2009
DALLAS — Texas advocates for the wrongly convicted are going after a
sheriff's deputy who says his trained dogs have sniffed out bad guys
in more than 2,000 scent identification lineups.
The Innocence Project of Texas says it will release a report next
week that exposes scent identification as junk science that's led to
an untold number of wrongful convictions. The group argues that scent
lineups should be inadmissible in court, and it dismisses what Fort
Bend County Sheriff's Deputy Keith Pikett does as “dog whispering.”
Pikett also faces two federal lawsuits from men implicated in the dog
handler's scent lineups. Charges were later dropped in both cases.
Pikett's attorney said his client believe the scent IDs are accurate.
Texas group derides scent IDs as junk science
Capital Murder Suspect Exonerated by DNA Speaks Out
Bruce Triplett is Asking Why the Murder Charge Can’t Be Removed From
His Record
Andrea Nguyen
KIAH
September 16, 2009
50 year-old Bruce Triplett says his life has been turned upside down
when he was wrongfully charged with capital murder.
"It's like a false accusation remaining for the rest of my life for
no reason," said Triplett. "I'm unemployable because my name has been
slandered."
Triplett spent the last three months in jail, only to be released
last Friday when the Harris County District Attorney dismissed his
capital murder charge because of insufficient DNA evidence.
Police accused Triplett of fatally stabbing, beating, and robbing 66
year-old Elizabeth Williams inside her Humble home back in March. He
had worked for the victim and her boyfriend has a handy man. In June
he was arrested at a motel and had his name and faced plastered all
over the news.
"They dubbed me the handy man killer or something and it shocked
me... It shocked me a lot."
He called upon community activist Quanell X to help clear his name.
"He's still suffering and still being tried for a crime he did not
commit," said Quanell X. "More needs to be done in the legislative
body as well as the district attorney's office to help innocent
people get their arrest record expunged especially when science
vindicated them."
But Triplett won't be able to remove the capital murder charge from
his record, because the law states a charge cannot be expunged if
there's a felony conviction within five years prior, which Triplett
does have for crack possession.
"I think it's really unfair, when I have already been exonerated from
the criminal act itself," said Triplett.
Copyright © 2009, KIAH-TV
Capital Murder Suspect Exonerated by DNA Speaks Out
Patricia Moore: A Continuing Forensics Scandal in Texas
Radley Balko
September 15, 2009
In the late 1990s, Harris County, Texas, medical examiner Patricia
Moore was repeatedly reprimanded by her superiors for pro-prosecution
bias. Yet she was still able to keep her position doing official
autopsies for the county until 2002.
In 2004, a statistical analysis showed Moore diagnosed shaken baby syndrome (already a controversial diagnosis) in infant deaths at a rate several times higher than the national average. Roger Koppl and I noted her case in recommending statistical analysis as one way of checking the integrity of state
forensic specialists.
One woman convicted of killing her own child because of Moore's
testimony was freed in 2005 after serving six years in prison.
Another woman was cleared in 2004 after being accused because of
Moore's autopsy results. In 2001, babysitter Trenda Kemmerer was
sentenced to 55 years in prison after being convicted of shaking a
baby to death based largely on Moore's testimony. The prosecutor in
that case told the Houston Chronicle in 2004 that she had "no
concerns" about Moore's work. Even though Moore's diagnosis in that
case has since been revised to "undetermined, " and Moore was again
reprimanded for her lack of objectivity in the case, Kemmerer remains
in prison.
Now another innocence claim has been filed in a case where Moore
diagnosed shaken baby syndrome. According to the Chronicle, the
Harris County Medical Examiner's Office has "quietly rewritten" the
results of a 1998 autopsy performed by Moore that was used to convict
a nurse of killing a child in her care. The revision downgraded
Moore's homicide conclusion to an "undetermined" cause of death. So
far, the prosecutors in that case are standing by their conviction.
According to the Chronicle, Moore today works for a private firm that
performs official autopsies for six Texas counties.
A Continuing Forensics Scandal in Texas
Sept. 4, 2009
Texas DNA exonerees find prosperity after prison
Thomas McGowan's journey from prison to prosperity is about to culminate in $1.8 million, and he knows just how to spend it: on a house with three bedrooms, stainless steel kitchen appliances and a washer and dryer.
"I'll let my girlfriend pick out the rest," said McGowan, who was exonerated last year based on DNA evidence after spending nearly 23 years in prison for rape and robbery.
He and other exonerees in Texas, which leads the nation in freeing the wrongly convicted, soon will become instant millionaires under a new state law that took effect this week.
Exonerees will get $80,000 for each year they spent behind bars. The compensation also includes lifetime annuity payments that for most of the wrongly convicted are worth between $40,000 and $50,000 a year making it by far the nation's most generous package.
"I'm nervous and excited," said McGowan,50. "It's something I never had, this amount of money. I didn't have any money period."
His payday for his imprisonment a time he described as "a nightmare," "hell" and "slavery" should come by mid-November after the state's 45-day processing period.
Exonerees also receive an array of social services, including job training, tuition credits and access to medical and dental treatment. Though 27 other states have some form of compensation law for the wrongly
convicted, none comes close to offering the social services and money Texas provides.
The annuity payments are especially popular among exonerees, who acknowledge their lack of experience in managing personal finances. A
social worker who meets with the exonerees is setting them up with financial advisers and has led discussions alerting them to swindlers.
The annuities are "a way to guarantee these guys ... payments for life as long as they follow the law," said Kevin Glasheen, a Lubbock attorney representing a dozen exonerees.
2 who served about 26 years in prison for rape will receive lump sums of about $2 million apiece. Another, Steven Phillips, who spent about 24 years in prison for sexual assault and burglary, will get about $1.9 million.
The biggest compensation package will likely go to James Woodard, who spent more than 27 years in prison for a 1980 murder that DNA testing
later showed he did not commit. He eventually could receive nearly $2.2 million but first needs a writ from the state's Court of Criminal Appeals or a pardon from the governor.
McGowan and the others are among 38 DNA exonerees in Texas, according to the Innocence Project, a New York legal center that specializes in overturning wrongful convictions. Dallas County alone has 21 cases in which a judge overturned guilty verdicts based on DNA evidence, though prosecutors plan to retry one of those.
Charles Chatman, who was wrongly convicted of rape, said the money will allow him some peace of mind after more than 26 years in prison.
"It will bring me some independence," he said. "Other people have had a lot of control over my life."
Chatman and other exonerees already have begun rebuilding their lives.
Several plan to start businesses, saying they don't mind working but want to be their own bosses. Others, such as McGowan, don't intend to work and hope to make their money last a lifetime.
Some exonerees have gotten married and another is about to. Phillips is taking college courses. Chatman became a first-time father at 49.
"That's something I never thought I'd be able to do," he said. "No amount of money can replace the time we've lost."
The drumbeat of DNA exonerations caused lawmakers this year to increase the compensation for the wrongly convicted, which had been $50,000 for each year of prison. Glasheen, the attorney, advised his clients to drop their federal civil rights lawsuits and then led the lobbying efforts for the bill.
Besides the lump sum and the monthly annuity payments, the bill includes 120 hours of paid tuition at a public college. It also gives exonerees an additional $25,000 for each year they spent on parole or as registered sex
offenders.
No other state has such a provision, according to the Innocence Project.
Exonerees who collected lump sum payments under the old compensation law are ineligible for the new lump sums but will receive the annuities.
Whether the money will be subject to taxes remains unsettled, Glasheen said.
The monthly payments are expected to be a lifeline for exonerees such as Wiley Fountain, 53, who received nearly $390,000 in compensation minus federal taxes but squandered it by, as he said, "living large."
He ended up homeless, spending his nights in a tattered sleeping bag behind a liquor store.
But after getting help from fellow exonerees and social workers, Fountain now lives in an apartment and soon will have a steady income.
Fountain's story is a cautionary tale for the other exonerees, who meet monthly and lately have been discussing the baggage that comes with the money.
Chatman said he's been approached by "family, friends and strangers, too."
"It takes 2 or 3 seconds before they ask me how much money, or when do I get the money," he said. "Everyone has the perfect business venture for you."
Though appropriately wary, the exonerees say they are excited about having money in the bank.
"You're locked up so long and then you get out with nothing," McGowan said. "With this, you might be able to live a normal life, knowing you don't have to worry about being out on the streets."
(source for both: Associated Press)
Justice is everybody's business
The public needs to hold police and prosecutors accountable
Bill Lueders
09/03/2009
In April 2008 I wrote a web article about an astonishing legal filing
in the Ralph Armstrong case. It alleged that a Dane County
prosecutor, by then retired, not only failed to investigate a tip
that pointed to a wrongful conviction but set out to destroy evidence
that might have proven this.
The article did not take sides. It merely reported what the filing
alleged: In the mid-1990s, Dane County prosecutor John Norsetter was
contacted by a woman from Texas who said Steve Armstrong had admitted
to the 1980 rape and murder of which his brother Ralph was convicted.
Accompanying the filing were detailed affidavits from two women who
described this confession, and their efforts to call attention to it.
One of them purportedly spoke to Norsetter, Ralph Armstrong's
original prosecutor.
Norsetter failed to pass on this information and in 2006 ordered
testing that destroyed what remained of a DNA sample, in violation of
an existing court order.
Steve Armstrong died in 2005, the same year that the state Supreme
Court overturned Ralph Armstrong's conviction on other grounds. He
was awaiting retrial when the revelations about his brother came to
light.
My article promoted an outraged reaction — but not the sort you might
expect.
"Sure we've had our share of mistaken convictions and overzealous
prosecution in Dane County, but this is one [case] where people need
to tread carefully," wrote one poster on TheDailyPage.com Forum.
"What I see is Leuders [real accuracy buff here] being used by
Armstrong's defense attorneys in a PR campaign to make Armstrong look
like a victim of a corrupt DA.... Shame on you Leuders and shame on
Isthmus." Other respondents voiced similar criticisms.
In late July, Reserve Judge Robert Kinney, having heard the
allegations against Norsetter, as well as a vigorous defense of his
actions by the state, agreed that "a series of conscious decisions"
had tainted the conviction beyond redemption. He dismissed the
charges, a decision the DA's office has decided not to appeal.
Ralph Armstrong, who has always maintained his innocence (even though
it's meant a longer sentence), is on his way to becoming a free man,
due to prosecutorial actions Isthmus was skewered for even mentioning.
I tell this story because it points to a larger issue, one that ought
to concern the entire community.
Ordinary citizens and even political leaders rarely challenge the
criminal justice system, no matter how often we're reminded of its
fallibility. Even folks who flock to public meetings on other local
issues sit on their hands when it comes to prosecutors and police.
It's a real problem.
Already, we give these people vast powers — to arrest, to prosecute,
to overlook transgression, to deprive of liberty — and immunize them
from most lawsuits when they screw up. And then, on top of that, we
spare them the bother of having to explain themselves. Indeed, the
most common public reaction to allegations of injustice is to
reflexively defend the system, as though it were too fragile to
withstand scrutiny.
In announcing that it was not appealing Judge Kinney's decision, the
Dane County District Attorney's Office issued a statement, which read
in part:
"[The] record demonstrates that prosecuting attorneys and their
colleagues in the Madison Police Department pursued this case in good
faith at every stage of the process, and that any errors that
occurred during the course of the investigation and prosecution were
the product of innocent mistake or oversight."
That settles that. Thanks.
Except, as Columbo might say, for one little thing: Norsetter heard
from a woman who said Steve Armstrong had credibly confessed,
providing explicit details. He later ordered a DNA test that could
not distinguish between brothers but used up the sample.
What makes the system so certain this was an innocent mistake?
Even if it were, that doesn't eliminate the need for answers and
accountability. Where are the editorials from Neil Heinen and the
dailies? Why hasn't noted local blogger Dave Cieslewicz weighed in?
Because the justice system always gets a pass. We snooze, we lose.
A decade ago I wrote several articles about a 15-year-old girl who
was charged with a crime for slightly changing her account of a
sexual assault. The person she accused was convicted of a crime. So
was the girl's father, for calling her a slut and beating her up
after the DA's charges were filed.
Dane County Judge Maryann Sumi dismissed the charge against the girl
and chided the DA's office for bringing it. Then it was up to the
community to respond. So far as I know, only one person did. Madison
resident Moria Cue circulated a petition expressing outrage. She
ultimately forced a high-level meeting with the DA's office, and I
believe made it less likely that future rape victims will be treated
this way.
We need police and prosecutors, and no community has more honorable
people at the helm than Madison Police Chief Noble Wray and Dane
County DA Brian Blanchard. But we also need citizens like Moria Cue,
looking over their shoulders, asking for explanations.
Justice is everybody's business
Op-Ed Columnist
Innocent but Dead
By BOB HERBERT
Published: September 1, 2009
There is a long and remarkable article in the current New Yorker about a man who was executed in Texas in 2004 for deliberately setting a fire that killed his three small children. Rigorous scientific analysis has since shown that there was no evidence that the fire in a one-story, wood frame house in Corsicana was the result of arson, as the authorities had alleged.
In other words, it was an accident. No crime had occurred.
Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.
It was inevitable that some case in which a clearly innocent person had been put to death would come to light. It was far from inevitable that this case would be the one. “I was extremely skeptical in the beginning,” said the New Yorker reporter, David Grann, who began investigating the case last December.
The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army.
Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.
There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson.
They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but Willingham would have set it?
With no real motive in sight, the local district attorney, Pat Batchelor, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”
Willingham was arrested and charged with capital murder.
When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.
And you could almost have guaranteed that a jailhouse snitch would emerge. They almost always do. This time his name was Johnny Webb, a jumpy individual with a lengthy arrest record who would later admit to being “mentally impaired” and on medication, and who had started taking illegal drugs at the age of 9.
The jury took barely an hour to return a guilty verdict, and Willingham was sentenced to death.
He remained on death row for 12 years, but it was only in the weeks leading up to his execution that convincing scientific evidence of his innocence began to emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case and began systematically knocking down every indication of arson.
The authorities were unmoved. Willingham was executed by lethal injection on Feb. 17, 2004.
Now comes a report on the case from another noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence.
The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.”
He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”
Grann told me on Monday that when he recently informed the jailhouse snitch, Johnny Webb, that new scientific evidence would show that the fire wasn’t arson and that an innocent man had been killed, Webb seemed taken aback. “Nothing can save me now,” he said.
A version of this article appeared in print on September 1, 2009, on page A29 of the New York edition.
Innocent but Dead
09/01/2009
Texas Justice: Where wrongful convictions are the norm
There's growing evidence that Texas executed an innocent man in 2004.
A nationally-known fire expert told a Texas state commission on
forensics last week that the arson investigations that put two Texas
men on death row were poorly conducted and the forensic evidence
couldn't be supported by science, reported the Dallas Morning News.
One of the cases now in question is that of Cameron Todd Willingham,
who was executed in February 2004 for setting his house on fire and
killing his 2-year-old daughter and 1-year-old twins. According to
the study, Texas fire investigators had no basis to rule that the
house fire was arson, a finding that led to Willingham's murder
conviction and execution. Willingham always maintained his innocence,
and according to the New York Times, "refused to accept a guilty plea
that would have spared his life, and insisted until his last painful
breath that he was innocent."
The Chicago Tribune reported that the re-examination of the
Willingham case comes as many forensic disciplines face scrutiny for
playing a role in wrongful convictions that have been exposed by DNA
and other scientific advances. It's also a crucial case for Texas:
The finding comes in the first state-sanctioned review of an
execution in Texas, home to the country's busiest death chamber. If
the commission reaches the same conclusion, it could lead to the
first-ever declaration by an official state body that an inmate was
wrongly executed.
A Broken System
Wrongful convictions are familiar territory for Texas, a state that
has been in the hot seat for the past decade due to the alarming
frequency of exonerations. Texas is the state with the highest number
of prisoners found to be innocent following DNA testing, according to
the Innocence Project, a national organization working to exonerate
wrongfully convicted people.
Of the 241 inmates that were found and had their convictions
overturned as a result of DNA testing since 1989, 38 have been in
Texas. Combined these 38 men have spent more than 500 years in prison
for crimes that they did not commit.
Just last month, DNA tests proved the innocence of Ernest Sonnier, a
Texas man who was convicted for a 1985 rape, and served 23 years of a
life prison sentence before he was released.
Sonnier was convicted of the crime and sentenced to life in prison
largely based on the victim's testimony, even though the forensic
evidence gathered from her body and clothes showed that someone with
a blood type different from the defendant's had raped her, according
the Innocence Project.
Eyewitness misidentification has played a role in more than 84
percent of all wrongful convictions exposed by DNA in Texas (and at
least 40 percent of these eyewitness identifications involved a cross
racial identification) , according to the Innocence Project. In Texas,
witness misidentification has been a large issue for Dallas County,
playing a role in the majority of the county's slew of exonerations.
Since 2001, 21 people in Dallas County have had convictions
overturned after DNA proved their innocence, reported the Associated
Press. That's a rate larger than any other county in Texas, and
larger in fact than many other states in the U.S.
Unvalidated or improper forensic science and forensic scientist
misconduct has also played a large role in wrongful convictions --
accounting for approximately 50 percent of wrongful convictions later
overturned by DNA testing, according to the Innocence Project. It was
a combination of witness misidentification and faulty testimony from
a Houston Police Department Crime Lab analyst that led to Sonnier's
conviction. In fact, Sonnier was the sixth man to be freed by new DNA
testing and revelations of faulty work, sloppy procedurals and false
testimony by the HPD crime lab.
As the Innocent Project said in a recent press statement:
Sonnier's is the latest in a string of cases where DNA testing has
proven inmates' innocence after wrongful convictions involving faulty
forensics at the HPD Crime Lab. Last year, Innocence Project client
Ronnie Taylor was exonerated through DNA testing after serving more
than 13 years in prison for a rape he didn't commit. In Taylor's
case, a forensic analyst claimed to have conducted testing for the
presence of semen on evidence from the crime scene and found none.
Years later, DNA testing on the exact same spot proved Taylor's
innocence - and proved that the testing had either never been done or
had been conducted improperly, according to the Innocence Project.
"For years, Houston has been ground zero in the national epidemic of
faulty forensic science," said Innocence Project Co-Director Barry
Scheck. "There are still thousands of cases from the Houston Crime
Lab that need to be reviewed, and that needs to happen quickly. In
many ways, Houston is a symptom of the root problem, which is a lack
of national standards and oversight for forensic science."
Human rights advocates have been pushing the Texas legislature to
implement a number of safeguards, some that would protect against
faulty forensics and prosecutorial misconduct, and reform
interrogation and eyewitness identification procedures. Earlier this
year, a bill mandating best practices for both photo and in-person
lineups to minimize false identifications died in the Texas
legislature. But in May the Texas legislature did succeed in passing
the Tim Cole Compensation Act. The bill was named for Timothy Cole,
who died in jail before DNA testing revealed that he had been
convicted for a rape which he in fact did not commit.
The Tim Cole Act goes into affect on Sept. 1 and increases lump sum payments to
the exonerated from the current $50,000 to $80,000 for each year of
imprisonment.
The Death Penalty
A Facing South has reported, executions have become a Southern
phenomenon in many ways. In fact, the South has performed 80 percent
of all executions since 1977, according to the Death Penalty
Information Center. In 2008, 95 percent of all executions were in the
South.
More troubling is the fact that almost 50 percent of all executions
in 2008 were performed in Texas. Human rights advocates find it
troubling that Texas not only leads the nation in executions by a
wide margin, but it also leads the nation in wrongful convictions. In
2008 alone, 7 people were executed from Dallas County, a county
soaring with wrongful convictions.
Since 1973, over 130 people have been released from death row with
evidence of their innocence, according to the DPIC. Nationally, 17 of
the 241 people exonerated so far through DNA have served time on
death row.
The Southern death penalty was a hot topic of news this summer. In
Georgia, the high-profile case of Troy Davis got the nation talking
about the possibility of a wrongful conviction. As Facing South
reported, Davis, who has always maintained his innocence, received a
rare ruling from the U.S. Supreme Court in August that would allow
him a new hearing. That same week in Texas, Sharon Keller, the
presiding judge of the Texas Criminal Court of Appeals, went on
trial. She was prosecuted for misconduct after callously refusing to
keep her office open beyond 5:00 p.m. to allow lawyers for a death
row inmate, Michael Richard, to file a last minute appeal for a stay
of execution. Now the nation waits to hear if the charges will be
dropped against her, or if she will be reprimanded or removed from
office.
As the New York Times editorial page noted on these two recent high-
profile cases:
Judge Keller's profound lack of appreciation for the seriousness of
taking a life -- and the obligations it places on the state -- is
similar to the disturbing dissent that Justices Antonin Scalia and
Clarence Thomas delivered this week in the Troy Davis case. They
suggested there was no constitutional problem with executing a man
who could prove he was innocent.
Willingham and Sonnier are just two of the latest cases that
highlight the ongoing problem of wrongful convictions in Texas and
across the nation. Tangentially, the cases of Keller and Davis have
also shone a light on the deep problems intrinsic in the country's
system of capital punishment.
Before his execution, Willingham told the Associated Press: "The most
distressing thing is the state of Texas will kill an innocent man and
doesn't care they're making a mistake."
And the question on many people's minds this week: How many more
Willingham's exist on Texas' death row?
Texas Justice: Where wrongful convictions are the norm
Wrongly convicted to get pay
By Elliott Blackburn
Avalanche-Journal
September 01, 2009
Tim Cole won't see a dime of the money lawmakers approved earlier
this year in his honor.
But his mother made sure this morning her son knew about the people
it will help.
Ruby Session, 72, saves visits to her son in the Mt. Olivet cemetery
for special occasions these days, she said. The Tim Cole Act, which
increases and expands compensation for wrongfully convicted Texas
inmates, became law this morning almost 25 years after a Lubbock jury
convicted its namesake.
She was happy the law would help so many of the living exonerated
inmates she had met after her son's story came to light last year.
"I'm just antsy, waiting to go out to the cemetery," Session said
Monday. "I'm so happy for them, and they said that they were happy
that we stayed the course."
Legislators last spring increased compensation and expanded payments
to include the estates of deceased inmates as part of the law named
for the Texas Tech student who died in prison serving a 25-year
sentence for a Lubbock rape he did not commit.
Cole became Texas's first posthumously exonerated inmate in April
after two days of hearings in Austin.
His survivors had not decided Monday whether to seek payments in his
name, his youngest brother, Cory Session said.
But knowing his brother's story helped give more support to other
surviving exonerees helped his family, Session said.
"We're glad that Tim's life has been a blessing to other people's
lives, and that's the main thing," Session said.
The act pays Texas inmates proven to have been wrongfully convicted a
lump sum of $80,000 for each year they spent in jail.
Prisoners who were released, but forced to register as sex offenders
because of the wrongful conviction, receive an additional $25,000-a-
year lump sum payment for each year they spent on that registry.
A year later, the men begin receiving an annuity on the same total
amount of compensation.
The program could cost $680,000, according to an estimate given to
lawmakers last spring. Exonerees waive their right to sue to receive
the compensation.
Many of the men had begun new businesses and families, said Kevin
Glasheen, a Lubbock attorney who represents about a dozen exonerated
inmates. Payments would begin later this fall, he said.
"It's one thing to file an application; it's another to get paid,"
Glasheen said. "But the clients are excited and they're trying to
move on with their lives."
Ruby Session still had unfinished business for her son. Only a pardon
can finish clearing Tim's name for her, she said - Houston Democratic
Sen. Rodney Ellis has requested an opinion from the Texas attorney
general to look at whether the governor may give a posthumous pardon.
She hoped the new law would help give the other exonerees similar peace.
"It will not replace the years lost because a lot of them lost their
youth, as did my son, just coming into full manhood," Session said.
"That was lost, that could never be replaced. But I'm happy for them,
and I just hope and pray that it will give them some sense of relief."
To comment on this story:
elliott.blackburn@lubbockonline.com
Wrongly convicted to get pay
DNA Frees Man from Texas Prison After 23 Years
Date: August 10, 2009
By: BlackAmericaWeb.com
A 46-year-old man walked out of a Houston prison Friday afternoon after spending 23 years behind bars for a sex crime that the evidence suggests he did not commit.
Ernest Sonnier was convicted of the crime and sentenced to life in prison largely on the strength of the victim’s testimony, even though the forensic evidence gathered from her body and clothes showed that someone with a blood type different from the defendant’s had raped her, lawyers from the Innocence Project in New York told the New York Times.
“It’s just sloppy science, at best,” said Alba Morales, who represents Sonnier.
Over the last 18 months, genetic testing of evidence found on the victim’s clothing and at the scene of the attack had yielded no trace of Sonnier, the Harris County district attorney’s office said. Instead, it has implicated two other men. Both are felons and known associates. One is awaiting trial for a different rape.
In light of the new evidence, Judge Michael McSpadden of Harris County District Court on Friday ordered Sonnier to be released pending further investigation, a first step toward exoneration, which under Texas law can be granted only by the state’s highest criminal court.
Donna Hawkins, a spokeswoman for the district attorney’s office, said the state was not ready to concede Sonnier’s innocence, though prosecutors acknowledge that the new DNA tests cast strong doubt on the conviction.
“There is a lot more legwork that needs to be done before we draw any conclusions,” Ms. Hawkins said.
Sonnier’s case is the latest in a string of faulty convictions linked to the Houston Police Department Crime Laboratory, the center of a long-running scandal over sloppy procedures.
The crime for which Sonnier was convicted occurred on Christmas Eve in 1985. Two men abducted a woman at a gas station in Alief, Tex., and then repeatedly raped her during a seven-hour drive to San Antonio. She escaped at 4 a.m. Six months later, she picked Sonnier’s picture out of a photo array. Later, in a police lineup and at trial, she identified him as one of the attackers.
Sonnier and his family have steadfastly maintained his innocence. As he came out of jail, hugged his relatives and tried to come to terms with freedom, he said he was sure more cases like his would come to light. “There are plenty more left in there who are innocent,” he said.
DNA Frees Man from Texas Prison After 23 Years
A time for hugs and happiness
Twenty-three years after going to prison for a crime that DNA now
seems to show he didn’t commit, Ernest Sonnier gets the chance to
smile again
By BRIAN ROGERS
HOUSTON CHRONICLE
Aug. 7, 2009
Flanked by friends and family outside the Harris County Jail, Ernest
Sonnier said that news accounts over the years of innocent men being
freed from prison always made him wonder: “When's my turn coming?”
His turn came Friday when state District Judge Michael McSpadden
released him on his own recognizance after 23 years behind bars for a
crime that, based on retested DNA, attorneys say he did not commit.
During the brief hearing, the Harris County District Attorney's
Office did not oppose Sonnier's release pending further
investigation. But he has yet to be exonerated.
More than 20 friends, relatives and well-wishers waited in the lobby
of the jail for hours as Sonnier's paperwork was processed. When the
elevator doors finally opened, a cheer went up and he found himself
being hugged from every direction.
“I feel good. I'm glad I'm home, with family,” Sonnier said, his eyes
wide at his reception amid the crowd and surrounded by reporters.
“It's been hard for me,” the 46-year-old said of his years in prison.
“There's no way I can make it up. It's lost.”
He pointed out his nieces and nephews in the crowd.
“When I left, they were little girls and boys. Now they're grown.”
Sonnier said he had not slept since Wednesday when Alba Morales, his
Innocence Project lawyer, called with the news of his release.
“When she told me I was clear, I cried the whole time we talked,” he
said. “I cried the whole time. I haven't been to sleep yet.”
Sonnier was sentenced to life in 1986 for aggravated kidnapping in
the abduction and rape of an Alief woman. The victim was kidnapped on
Christmas Eve and raped by two men as they drove her car to San Antonio.
Sixth county inmate freed
DNA testing over the past 18 months implicated two convicted felons
as the actual perpetrators of the 1985 crime, Morales said. The
Innocence Project conducted nine rounds of DNA testing since March 2008.
“Faulty forensics by the Houston Police Department criminal
laboratory, as well as a bad eyewitness ID — a wrongful, mistaken
eyewitness identification — put him away. Twenty-three years are
gone,” Morales said.
Sonnier is the sixth Harris County man to be freed by new DNA testing
and revelations of faulty work and testimony by the HPD crime lab.
Problems in four divisions of the crime lab — DNA, serology,
ballistics and toxicology — prompted the city to hire a former U.S.
Justice Department official, Michael Bromwich, to investigate the
facility in 2005. The investigation and report, which cost $5.3
million, exposed possible problems with numerous cases and prompted
calls for the creation of an independent regional crime lab.
Supervised release
Earlier this year, a bill mandating best practices for both photo and
in-person lineups to minimize false identifications died in the Texas
Legislature.
Standing behind Sonnier at the jail, his mother said the years apart
were hard.
“It wasn't easy because I knew he was home with me when this
happened,” said Altha Davis. “You hear so much about what happens in
prison, I just prayed that he would make it home.”
Sonnier is prohibited from contacting the new suspects or the victim.
His supervised release means he must not use any drugs or alcohol and
will be monitored by GPS, which will be paid for by the district
attorney's office.
‘Plenty more' innocent
Before his 1986 conviction, Sonnier had been convicted of four
robberies and the burglary of a motor vehicle, Harris County DA's
spokeswoman Donna Hawkins said.
After Sonnier walked out of the jail, free for the first time since
his arrest, he acknowledged that the criminal justice system failed
him and said there are other innocent people in prison.
“It was there,” he said. “The evidence was on the table that I wasn't
the guy. And they failed to show justice.”
He added, “There's plenty more who are in there who are innocent. I
want to be an example. All I can tell them is: Keep fighting.”
Asked how angry he was, Sonnier shook his head.
“I used to be mad, but the past is the past.”
LIST OF RELEASED INMATES GROWS
Inmates who were released after errors were found with evidence
presented by the Houston Police Department crime lab:
• Gary Alvin Richard: Released on April 30 after serving more than 22
years of a life sentence on kidnapping, rape and robbery convictions.
Forensic tests confirmed that incriminating testimony a crime lab
supervisor offered at Richard's trial was false. Although Richard has
been released, the case against him remains.
• Ricardo Rachell: Released in December 2008 after serving nearly six
years of a 40-year prison term in a sexual assault conviction.
Cleared by DNA evidence collected in 2002, but not examined until
last year. In January, the Texas Court of Criminal Appeals overturned
his conviction, clearing the way for him to apply for a pardon on the
basis of actual innocence.
• Ronald Gene Taylor: Released in October 2007 after serving 14 years
of a 60-year-sentence on a rape conviction. DNA testing on the rape
victim's bed sheet revealed another man with a history of sexual
violence committed the crime.
• George Rodriguez: Released in 2004 after serving 17 years in prison
for a kidnapping and rape conviction. In June 2009 , a federal jury
awarded Rodriguez $5 million, finding the city should pay for its
“deliberate indifference” to problems at the crime lab whose false
evidence secured the conviction.
• Josiah Sutton: Released in March 2003 after serving 4 • ½ • years
of a 25-year sentence for a rape conviction. DNA tests discredited
those performed by the crime lab. Gov. Rick Perry granted him a
pardon on the basis of innocence, rather than a lesser “full” pardon,
in May 2004.
brian.rogers@chron.com
A time for hugs and happiness
Commentary
What's the matter with Texas DAs?
By RICK CASEY
HOUSTON CHRONICLE
Aug. 6, 2009
When Lubbock police sought Baytown resident Michele Mallin's help in
identifying the man who raped her 25 years ago when she was a 20-year-
old Texas Tech student, they violated virtually every safeguard now
recommended to minimize false identifications.
• • Arriving in the lobby of her dormitory room, a circumstance
suggesting a breakthrough in their investigation, they showed her a
layout of six photos, rather than one at a time.
Studies indicate that victims given an array from which to pick at
least subconsciously tend to assume the perpetrator is among them
unless clearly warned otherwise. She wasn't.
Nor was she told that the investigation would continue even if she
didn't identify anyone at that time.
• • Five of the photos were black-and-white mug shots complete with
prisoner numbers. The sixth, the man she identified, was a color
Polaroid taken at his home. Having one photo stand out has been found
to strongly affect the victim's judgement.
• • One of the officers was involved in the investigation and knew
which person (the one shown in color) was suspected. Experts say
having the photos shown by someone who believes he knows the culprit
tends to lead, consciously or not, to cues being communicated to the
victim.
• • According to court records, Mallin told the officers, “I think
that is him.”
They should have documented that response. Instead one asked her if
she was “positive.” Feeling encouraged, she said she was, and the
officer wrote “That's him,” next to the suspect. The police report
simply said she “positively identified” the suspect.
In addition, as I noted in Wednesday's column, the police did not
tell Mallin that the man she identified, Timothy Cole, was severely
asthmatic and didn't smoke. Yet the one thing she was actually
positive about, and numerous cigarette butts in her normally smoke-
free car corroborated, was that her attacker was a chain smoker.
But all those mistakes in witness identification were then and not
now, right? ... I wish.
When an Austin district judge held a hearing in February that laid
out all the mistakes and confirmed that the result was that Timothy
Cole died an innocent man in prison, Lubbock County District Attorney
Matthew Powell didn't bother to attend, though he was in Austin on
other business.
And when the Austin American-Statesman asked who was to blame for the
wrongful conviction, he said, “Where it went wrong is you had a
victim who picked him out of a lineup.”
Asked if he studied the case to see if lessons could be learned, he
said, “I didn't think it was necessary. This is the greatest system
in the world, but it is a system built on people and people make
mistakes.”
The biggest mistake in this case came in 1995, four years before
Timothy Cole died in prison, when Larry Wayne Johnson wrote to
Murray's predecessor as Lubbock DA. With the statute of limitations
passed, Johnson confessed that he had raped Mallin and Cole was
innocent. The letter was discarded.
Johnson wrote other officials with similar results. Finally two years
ago, Cole's family learned of Johnson's efforts and the Innocence
Project of Texas got involved.
To his credit, DA Powell sent his investigators to interview Johnson
in prison (for the rape of two subsequent victims) and get a blood
sample. A DNA test confirmed he raped Mallin.
I am astounded that Powell isn't, after being involved in this case,
pressuring law enforcement officials in Lubbock to adopt the best
investigative practices. Instead, he blames the mistake on the
victim, a traumatized 20-year-old who wanted to help the police but
instead was cajoled by them into naming the wrong man.
Worse, Powell is very much in the mainstream of Texas DAs.
I know they don't want to convict innocent people while the guilty
continue to rape, yet DNA tests have repeatedly cleared men convicted
by false victim IDs.
So why aren't district attorneys demanding that police use only the
best techniques for finding the truth?
rick.casey@chron.com
What's the matter with Texas DAs?
Crime and exoneration
Hidden evidence
Jul 30th 2009
NEW YORK
From The Economist print edition
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 Defence
Lawyers contends that the restrictions on post-conviction testing
amount to a fear of the truth. He may be right.
DNA is changing the way America fights crime, not its policies towards convicts
Ellis and Session: Why governor should pardon Tim Cole
July 17, 2009
Imagine if your son or brother was incarcerated for a sexual assault
you know he couldn't commit. You tell everyone, "He's innocent!" but
he languishes in prison for over a decade.
Now imagine that he dies there before his innocence can be proven. He
will never raise a family. You will never be able to hold him again
or love the children he might have brought into this world.
Finally, how would you feel when DNA finally proves his innocence,
the real criminal is identified, and, despite all of this
overwhelming evidence, the governor says, "Sorry, I can't pardon him
because an attorney general opinion from the 1960s says I can't."
Unfortunately, this is not a hypothetical story of injustice. This is
the real life saga of Timothy Brian Cole and his family's quest to
clear his name.
Tim was branded the "Tech rapist" in 1986 and sentenced to 25 years
in prison. He professed his innocence until he died in prison of an
asthma attack in 1999. In May 2008, DNA evidence revealed he was
innocent, and a man named Jerry Johnson was guilty.
In February 2009, the Texas House and Senate passed resolutions
honoring Tim Cole. In April, Judge Charles Baird exonerated Tim Cole
in a "court of inquiry," writing: "The evidence is crystal clear that
he [Tim Cole] died in prison an innocent man, and the court finds to
a 100 percent moral, legal, and factual certainty that he did not
commit the crime for which he was convicted."
Gov. Rick Perry met with the Sessions family and said, "Tim Cole was
a veteran and college student pursuing the American dream, yet he
died in prison in a Texas nightmare of injustice."
In May, Perry signed the Tim Cole Act, which, in part, authorized
compensation for family members of the posthumously pardoned. While
we are grateful he signed this important legislation, he insists he
cannot pardon Tim Cole without a constitutional amendment. Why?
Because a 1965 attorney general opinion said that a pardon must be
"accepted" by the person to be valid.
While this may have been the case law a long time ago, it has since
changed throughout the country. Nowhere in the Texas constitution
does it say that a governor cannot issue a posthumous pardon.
Attempts were made in the legislature to explicitly give the governor
the constitutional authority he wanted. One bill failed to pass;
another was introduced for the special session but the governor
didn't add it to "the call" and it died as a result.
We recently submitted a request for an attorney general opinion on
the matter. During our legal research, we discovered that many other
states, the federal government and England have all granted pardons
to deceased individuals.
Governors in nine states have granted posthumous pardons since 1977.
Former Presidents Bill Clinton and George W. Bush have granted
posthumous pardons.
If two presidents, nine state governors and the queen of England can
issue posthumous pardons, shouldn't the governor of Texas be able to
as well? We hope that Attorney General Greg Abbott will rule on this,
so Perry will pardon Tim Cole like he has so many other wrongfully
convicted men in the past.
Then next session we hope the governor will join us in pushing for
other reforms to Texas' criminal justice system so that wrongful
convictions are prevented and another Tim Cole never has to be
pardoned again.
State Sen. Rodney Ellis represents District 13, which includes parts
of Harris and Fort Bend counties. Cory Session is Tim Cole's brother.
Readers may contact the authors through rodney.ellis@senate.state.tx.us.
Why governor should pardon Tim Cole
17 years wrongful imprisonment = $5 million, but who pays?
July 16, 2009
We’re going back a few weeks here, so forgive me, but recently
(26th June) George Rodriguez was awarded $5 million by a federal jury
after spending 17 years in prison for a kidnapping and rape which he
did not commit. DNA tests in 2004 led to his exoneration, his being
just one of a number of cases in which the findings of the Houston
Police Department Crime Lab were discredited.
A few questions to muse on from this decision –
1) Is $5 million adequate compensation (or indeed too much) for 17
years spent in prison?
Mr. Rodriguez’s reaction was that he was grateful for the money but
“no money could replace what I lost”. His lawyers had asked the jury
to consider awarding $35 million and emphasized the importance of
hold the city accountable for the endemic problems at the crime lab.
Bringing me to my next question –
2) In a case like this, should such a payment function as a
punishment for the institution at fault (in this case HPD) or purely
to compensate a man who was wrongly sent to prison for many years of
his life?
Lawyers for the city of Houston argued that argued that Mr. Rodriguez
should not be paid anything because his conviction wasn’t the result
of a policy problem, but rather the wrongful actions of one man
(James Bolding, manager of the crime lab). One of the jury’s findings
was that Houston did have an official policy or custom of allowing
crime lab personnel to be inadequately trained and supervised. So
should money only be paid in cases like this when it can be shown
that a wrongful conviction is the result of a rotten system rather
than just rotten (or purely incompetent) individuals?
3) Why won’t the authorities recognize the injustice of this wrongful
conviction and if they did how would the city of Houston and Mr.
Rodriguez be better off?
The Texas Court of Criminal Appeals vacated Mr. Rodriguez’s
conviction in 2004. Prosecutors agreed not to retry him but have
refused to say he was innocent, barring him from receiving a pardon
and compensation from the state. Perhaps such an action would have
left the city with a smaller bill and Mr. Rodriguez’s name would have
been cleared into the bargain.
The above questions are not just interesting in theory but are also
likely to be raised practically in the near future, given that Mr.
Rodriguez was one of four men to be released from prison as a
consequence of HPD Crime Lab errors and is the first to sue.
Any thoughts…
For more info - Click Here.
(Houston Chronicle story 06/26/09)
17 years wrongful imprisonment = $5 million, but who pays?
Jul. 06, 2009
Texas governor’s inaction in granting posthumous pardon of Timothy
Cole is an affront to justice
The cry for justice for Timothy Cole can be heard from the grave, and
yet Gov. Rick Perry turns a deaf ear.
Cole was the Fort Worth man wrongly convicted of rape in 1985 and
sentenced to 25 years in prison. He died there in 1999 before DNA
testing proved that he did not commit the crime to which another
inmate confessed.
In posthumously exonerating Cole, District Judge Charles Baird said:
"This is the saddest case I’ve seen. . . . I find that Timothy
Cole’s reputation was wrongly injured, that his reputation must be
restored and that his good name must be vindicated."
Cole’s family believes that only a full pardon can restore that good
name. Perry said he was willing to grant one if legislators passed a
bill that gave him the authority to do so. While some argue that the
governor doesn’t need that additional authority, lawmakers in this
year’s regular session passed such a measure. It, like many others,
died during a parliamentary standoff in the session’s last days.
Perry could have added the posthumous pardon bill to last week’s
special session. He refused, despite pleas from Cole’s family and
others. Perry’s inaction was added pain to a hurting family and an
affront to justice itself.
Texas governor’s inaction in granting posthumous pardon of Timothy
Cole is an affront to justice
Jury awards Rodriguez $5 million
By ROMA KHANNA
Copyright 2009 Houston Chronicle
June 25, 2009
A federal jury on Thursday awarded $5 million to a Houston man who
spent 17 years in prison for a kidnapping and rape he did not commit,
finding the city should pay for its “deliberate indifference” to
problems at the crime lab whose false evidence secured the conviction.
George Rodriguez, 48, gained his freedom in 2004 after DNA tests
discredited the findings of the troubled Houston Police Department
crime lab on his case. By that time, he had served nearly two decades
in prison. His father had died. His daughters faced abuse from men
their mother lived with.
“Ain’t no amount of money is going to even my scale,” Rodriguez said
after hearing the verdict. “I lost my dad and my girls have been
through hell. I am grateful, but no money could replace what I lost.”
A jury of five women and three men deliberated for about two days
after hearing testimony from former Mayor Lee P. Brown, who was
police chief in 1987, James Bolding, a crime lab manager who
testified at Rodriguez’s trial and from Rodriguez himself.
Lawyers for Rodriguez had asked jurors to award $35 million to hold
the city accountable for the chronic problems at the crime lab.
“This verdict says what I think we all know to be true about the
Houston Police Department crime lab,” said Barry Scheck, one of
Rodriguez’s lawyers and a co-founder of the Innocence Project, which
helped secure his release from prison. “They convicted innocent men
and the city was indifferent.”
Three other men have been released from prison after the exposure of
crime lab errors in their cases. Rodriguez is the first to sue.
Lawyers for the city, the only defendant in the case, argued that
Rodriguez deserved nothing because his conviction resulted from the
lie of one analyst and not a problem with policy.
In reaching its verdict, the jury found Bolding’s testimony played an
important role in Rodriguez’s conviction and that the city had an
official policy or custom of allowing the crime lab personnel to be
inadequately trained and supervised.
The panel also found, after hours of deliberation and one declaration
that it was deadlocked on the issue, that Brown, as the city’s policy
maker, showed deliberate indifference to the lack of training and
supervision at the crime lab and the chance that someone’s
constitutional right to a fair trial could be violated.
Rodriguez was convicted in the 1987 kidnapping and sexual assault of
a 14-year-old girl. Bolding testified at his trial that tests on body
fluids from the crime scene eliminated another suspect, Isidro Yanez,
but not Rodriguez.
Years later, after the Innocence Project took the case, DNA tests
were performed on a hair from the crime scene. Those tests eliminated
Rodriguez as the source of the hair and, instead, pointed to Yanez.
Further review of Bolding’s testimony also revealed that his
conclusions contradicted accepted theory at the time and his own
testimony in other court cases.
A judge ordered Rodriguez’s release from prison in 2004 and
prosecutors agreed not to retry him. The Texas Court of Criminal
Appeals vacated the conviction, but prosecutors never would say
Rodriguez was “actually innocent,” which barred him from receiving a
pardon and compensation from the state.
City Attorney Arturo Michel, whose office defended the city, said
officials would take a close look at the trial transcript to review
questions of evidence and evaluate how the city would assess the case
if it were retried before deciding whether to appeal.
“The jury was deadlocked on the issue of whether Lee Brown was
deliberately indifferent,” he said. “That meant that they had
difficulty coming to a conclusion on the evidence.”
One juror did tell attorneys for the city that the panel spent the
majority of their deliberations discussing whether Brown had shown
deliberate indifference. All eight declined to comment to the
Chronicle.
roma.khanna@chron.com
Jury awards Rodriguez $5 million
Supporters of the Wrongly Convicted to March on State Capitols
Glenbrook, NV
June 24, 2009
Supporters of the wrongly convicted and those committed to criminal
justice reform will march on state capitols in 12 states on Saturday
The state involved are: Alabama, Arkansas, Arizona, California,
Colorado, Florida, Idaho, Michigan, New York, North Carolina, South
Carolina, Texas.
About Freedom March 2009: an opportunity to raise united voices for
justice. Modern science and technology have shaken the once strong
faith many once placed in the accuracy of judgments made by our
criminal justice system. Thanks to DNA analysis of biological
evidence, hundreds have been exonerated—many after spending years on
death row. Research by Seton Hall law professor D. Michael Risinger
indicates that 3.3%-5% of those convicted of crimes are factually
innocent. Those who value justice demand that the justice system
apply the lessons to be learned from the many cases of wrongful
conviction, and support policy initiatives that:
1. Raise the accuracy rate in judgments of guilt and innocence.
2. Resolve credible post-conviction claims of innocence.
3. Remedy the tragic impact of wrongful convictions.
For those who are guilty of crimes, we support enlightened approaches
to incarceration that nurture genuine rehabilitation and
reintegration of productive citizens whenever possible.
FACTS ABOUT OUR CRIMINAL JUSTICE SYSTEM:
The United States incarcerates more people than any country in the
world, including the far more populous nation of China
[1] One in 100 Adult Americans is incarcerated in a prison or jail
One in 31 Adult Americans is incarcerated, on probation or parole.
Incarceration rates heavily concentrated among men, racial and
ethnic minorities, and 20-and 30-year olds 1 in 9 Black men 20-34 years old ,
1 in 15 Black men 18+, 1 in 36 Hispanic men 18+ Texas leads the nation in verified wrongful convictions.
To date, 38 people have been exonerated in Texas using DNA.
Nationally, 133 people have been exonerated from death row.
[2] Expert estimates of wrongful convictions range from 3% to 12%, based
on data from DNA & other exonerations.
[3] Executed But Possibly Innocent: Of the 8 cases frequently cited as
those executed despite strong evidence of innocence, 5 are Texas cases.
[4] How many innocent people are in prison? No one knows, but experts
agree that "any plausible guess at the total number of miscarriages
of justice in America in the last fifteen years must be in the
thousands, perhaps tens of thousands."
[5] For more details, visit www.freedommarchusa.org
SOURCES:
[1] Pew Research Center - http://www.pewcenteronthestates.org/
uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf
[1] http://www.deathpenaltyinfo.org/innocence-and-death-penalty
[1] Research by Seton Hall law professor D. Michael Risinger and
other expert estimates
[1] http://www.deathpenaltyinfo.org/executed-possibly-innocent
[1] http://truthinjustice.org/exonerations-in-us.pdf
John J. Bradley
Managing Director
Justice on Trial
Glenbrook, NV
775-749-5522
888-241-5057
Supporters of the Wrongly Convicted to March on State Capitols
June 21, 2009
National Freedom March For The Wrongly Convicted
NEW YORK - An estimated 10% of all prisoners in the U.S. have been
wrongfully convicted. According to a recent report released by the
Pew Center on the States, the U.S. correctional population -- those
in jail, prison, on probation or on parole -- totaled 7.3 million, or
1 in every 31 adults. This means that up to 730,000 people in the
correctional population may have been wrongfully convicted. In the
last 3 decades 238 Americans have been exonerated with DNA evidence
after spending an average of 12 years incarcerated.
The severity of this problem has begun to be recognized in New York
and other states. The New York Bar Association earlier this year
released their Final Report of the New York State Bar Association’s
Task Force on Wrongful Convictions.
Also in April, Jonathan Lippman, the chief judge of New York’s Court of Appeals, said he is creating a permanent task force to examine wrongful convictions and recommend ways to minimize them.
In order to raise public awareness of a national problem that has
become a national shame, a National Freedom March for the Wrongfully
Convicted is being held simultaneously in many states on June 27th.
The New York march will be held in New York City on June 27th
starting on the Steps of City Hall from 10:00 to 11:00, to follow
with a march to Foley Square Park where there will be speakers and
informational materials from 11:00 to 2:00.
Speakers at the March will include Jeffrey Deskovic, Richard Aborn,
Colleen Eren and representatives from the Campaign to End the Death
Penalty and the ACLU.
Jeffrey Deskovic served 16 years in prison for a murder he did not
commit and is now working to bring about reforms which will help
reduce the number of wrongful convictions. Mr. Deskovic’s speech will
provide insights into the devastation a wrongful conviction can cause
to the innocent and their families as well as the need for systematic
reform to help reduce these injustices. Another aspect will be the
role that judges play in perpetuating wrongful convictions by putting
procedure over innocence, rubber stamp denying appeals, and generally
looking for any and every means possible to affirm convictions no
matter what the facts are or the quality of the legal arguments which
are based upon the fairness of trials.
Richard Aborn is a candidate for Manhattan district attorney. He
was a member of the NYS Bar Association Task Force on Wrongful
Convictions and a leader in helping pass a new state law calling for
expanded use of DNA to fight crime and quickly exonerate the
innocent. He has also long pressed for overturning the draconian
Rockefeller Drug Laws, and has been a firm and consistent opponent of
the death penalty.
Colleen Eren is Organizing Director with New Yorkers for Alternatives
to the Death Penalty (NYADP) and a doctoral candidate in Sociology at
the CUNY Graduate Center. She became involved in the abolitionist
movement at the age of 16, after starting a chapter of Amnesty
international in her high school. She has served on Amnesty's
National Steering Committee for the Program to Abolish the Death
Penalty, and has been with NYADP five years. She has taught
undergraduate Sociology courses at Hofstra University, Queens College
and Hunter College.
More information on the National Freedom March for the Wrongfully
Convicted, Click HERE
Copyright 2006-2009 The Hudson Valley Press.
National Freedom March For The Wrongly Convicted
Innocents Lost
A Supreme Court decision increases the risk that the wrongly convicted could be kept behind bars.
June 21, 2009
A MAJORITY OF the Supreme Court ruled last week that prisoners do not
have a constitutional right to post-conviction DNA testing. The
decision was based in large part on the assertion that federal
judicial intervention was unnecessary because the great majority of
state legislatures already had passed laws to give prisoners adequate
access to the revolutionary technology. The majority's argument has
merit, but the decision in District Attorney's Office v. Osborne was
nonetheless wrong.
The decision sprang from the case of William G. Osborne, who was
convicted of the brutal 1993 kidnapping, rape and assault of an
Alaska woman. A rudimentary DNA test performed on semen found at the
crime scene excluded two suspects but not Mr. Osborne. Mr. Osborne's
trial lawyer declined a more advanced DNA test for fear that the
results could definitively implicate her client.
On appeal, Alaskan courts denied Mr. Osborne's request for further
DNA testing, concluding that eyewitness accounts and other evidence
against him were so strong that DNA tests would likely not be
dispositive. A federal appeals court ultimately ruled that Mr.
Osborne was entitled to further testing; the Supreme Court by a 5 to
4 majority overturned this decision last week.
The federal government and 46 states have laws outlining prisoners'
rights to DNA testing. Alaska is one of the four states that does
not. Yet even some jurisdictions that recognize prisoner rights to
testing put strict limits on that access.
For example, some states allow post-conviction testing only for those on death row; those serving life sentences are excluded from the potentially exonerating
benefits of DNA testing. Other states do not allow defendants who
declined more advanced DNA tests at trial to seek such testing post-
conviction.
Mr. Osborne is not a sympathetic character. He was released after
serving 14 years and after telling a parole board he was guilty of
the rape. Not long after his release, he was charged with kidnapping,
armed robbery and burglary for a home invasion in which he allegedly
duct-taped and pistol-whipped four people.
It is easy to understand why many prosecutors and judges get fed up with prisoners, especially those convicted of violent crimes, who try to game the system. Yet DNA testing, in the words of Chief Justice John G. Roberts Jr.'s
majority opinion, has an "unparalleled ability both to exonerate the
wrongly convicted and to identify the guilty."
Indeed, it has been credited with freeing some 240 innocent people convicted after what appeared to have been fair and thorough proceedings.
Access to DNA evidence should not be based on the luck of the draw.
All states should enact laws guaranteeing ample access to DNA testing
to prisoners, especially those facing capital punishment or lengthy
sentences. The Constitution' s promise of due process demands no less.
Innocents Lost
Ex-inmate tells of unjust verdict, family’s hardship
He testifies in a case that's weighing whether the city of Houston
should compensate him for wrongful incarceration in sex assault
By ROMA KHANNA
Copyright 2009 Houston Chronicle
June 19, 2009
A wrongfully convicted Houston man told jurors Friday of his family’s
struggles during his 17 years of incarceration, including his
daughters’ physical and sexual abuse and his father’s death just one
month before new DNA evidence prompted his release from prison.
“I have been through a lot of pain,” George Rodriguez, 48, said
during more than two hours of tearful testimony in his case to
determine whether the city should compensate him for his ordeal.
“I wish I could have been there for them,” Rodriguez said, overcome
with tears, “But I couldn’t.”
Rodriguez was convicted in the 1987 kidnapping and sexual assault of
a 14-year-old girl. At his trial a Houston Police Department crime
lab analyst testified that body fluids from the crime scene excluded
another suspect, Isidro Yanez, but not Rodriguez.
Jurors sentenced Rodriguez to 60 years in prison on each count.
“I did approximately 17 years, five months and seven days,” Rodriguez
told jurors.
DNA tests found that a pubic hair from the crime scene indeed
belonged to Yanez and raised questions about the HPD analysts’
conclusions. Rodriguez’s lawyers have argued that the false testimony
was allowed because of the city of Houston’s deliberate indifference
to chronic problems at the police lab.
Since 2003, four men have been released from prison after the
exposure of flawed HPD crime lab work on their cases.
In court Friday, Rodriguez, wearing a dark suit and blue tie, spoke
haltingly about his time in Texas prisons, where he witnessed
violence and felt the threat of gangs. He also talked about his
family’s hardship.
During his incarceration, three of Rodriguez’s daughters bounced
between the care of their mother, their grandmother and foster care.
While living with their mother, he said, the girls were abused by two
of her boyfriends — one of them physically, and another one sexually.
Wiping tears from his eyes, Rodriguez told jurors that the girls’
ordeal still is a source of distress.
“Every time I see them … I blame myself,” he said. “I was angry, but
what can I do? I am behind bars and I can’t get out.”
Rodriguez also spoke of the grief he felt at not being able to see
his father before his death nor attend his funeral.
Although DNA tests had already raised questions about his conviction,
when Rodriguez applied for a release to attend his father’s funeral,
it was denied.
One month later, he walked out of prison for good.
“He told me he was going to see me when I got out,” Rodriguez said of
his father, “but when I was out, he was gone.”
Attorneys representing the city will have the opportunity to question
Rodriguez on Monday when his trial is scheduled to continue.
roma.khanna@chron.com
Ex-inmate tells of unjust verdict, family’s hardship
Innocent? Who cares?
JUNE 20, 2009
Determining whether a defendant is guilty or innocent is apparently
not what the U.S. Supreme Court views as the top priority in criminal
justice.
In a stunning decision, the Court ruled by its usual 5-4 ideological
majority Thursday that prisoners have no constitutional right to DNA
testing that might prove them to have been wrongly convicted.
The case came from Alaska, one of four states (the others are
Alabama, Massachusetts and Oklahoma) that don't have laws dealing
with DNA testing after a conviction. Alaska prosecutors concede that
DNA tests could establish the guilt or innocence of William Osborne,
who was convicted in 1994 of kidnapping and sexually assaulting a
prostitute. Indeed, the state seemed unable to offer a coherent
argument for opposing the tests.
Like most such cases, this one is messy. Mr. Osborne's attorney
refused sophisticated DNA testing at trial, and Mr. Osborne confessed
to the Alaska Board of Parole — though he later said he lied in the
hope of speeding up his release. It's politically confusing as well,
since the Obama administration inexplicably and shamefully backed
Alaska's case.
But the constitutional safeguards governing defendants' rights should
not be so easily sidetracked.
Nevertheless, Chief Justice John Roberts, though noting DNA's
"unparalleled ability" to determine guilt or innocence, placed
greater emphasis in his majority opinion on the ability of states to
legislate rules governing DNA evidence. The minority, reflected in a
dissent by Justice John Paul Stevens, appropriately argued that the
Constitution's guarantee of due process for all Americans should have
taken precedence.
The Innocence Project at Cardozo Law School says DNA testing has
played a role in 240 exonerations, including 103 cases in which the
real perpetrator was identified. The nation's highest court now says
that statistic takes a back seat to its deference to legislative
process.
Innocent? Who cares?
Court finds convicts have no right to test DNA
By MARK SHERMAN
The Associated Press
June 18, 2009
WASHINGTON -- The Supreme Court said Thursday that convicts have no constitutional right to test DNA evidence in hopes of proving their innocence long after they were found guilty of a crime.
The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence.
Testing has led to the exoneration of at least 232 people who had been found guilty of murder, rape and other violent crimes.
The court ruled 5-4, with its conservative justices in the majority, against an Alaska man who was convicted in a brutal attack on a prostitute 16 years ago.
William Osborne won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Osborne argued that testing its contents would firmly establish his innocence or guilt.
In parole proceedings, however, Osborne has admitted his guilt in a separate bid for release from prison.
The high court reversed the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco. States already are dealing with the challenges and opportunities presented by advances in genetic testing, Chief Justice John Roberts said in his majority opinion.
"To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response," Roberts said. Alaska, Massachusetts and Oklahoma are the only states without DNA testing laws. In some other states, the laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.
But Justice John Paul Stevens said in dissent that a simple test would settle the matter. "The court today blesses the state's arbitrary denial of the evidence Osborne seeks," Stevens said.
The woman in Alaska was raped, beaten with an ax handle, shot in the head and left for dead in a snow bank near Anchorage International Airport. The condom that was found nearby was used in the assault, the woman said.
The woman identified Osborne as one of her attackers. Another man also convicted in the attack has repeatedly incriminated him. Osborne himself described the assault in detail when he admitted his guilt under oath to the parole board in 2004.
Osborne's lawyer passed up advanced DNA testing at the time of his trial, fearing it could conclusively link him to the crime. A less-refined test by the state showed that the semen did not belong to other suspects, but could be from Osborne, as well as about 15 percent of all African-American men.
Osborne is awaiting sentencing on another conviction, a robbery he committed after his parole.
The case is District Attorney's Office v. Osborne, 08-6.
Court finds convicts have no right to test DNA
Innocent man imprisoned for 17 years sues Houston for millions
June 15, 2009
By Lee McGuire
11 News
HOUSTON -- A federal district judge has refused to dismiss a multi-
million dollar civil lawsuit against the City of Houston, clearing
the way for George Rodriguez’s claim that he was wrongfully
imprisoned to go to trial Tuesday.
His attorney, Mark Wawro, declined to comment except to say he is
seeking compensation for what he has lost.
Court documents indicate that Rodriguez believes the city was
complicit in his wrongful conviction by looking the other way as
conditions in the city’s crime lab deteriorated over a period of
several years.
The 11 News Defenders first exposed widespread problems with
mishandled evidence, poor training and faulty test results five years
ago. In 2004, a judge allowed Rodriguez to be released on bond after
DNA testing cleared him in the kidnapping and rape of a 14-year-old
girl in 1987.
Houston City Attorney Arturo Michel said the problems at the crime
lab were not the source of the conviction. Instead, Michel points to
the dishonest testimony of a crime lab supervisor.
“I think what you have here is a person who was simply not honest,”
Michel said. “It doesn’t matter how many funds you put into something
and how good a program you have, you cannot guard against a person’s
dishonesty.”
“What we are going to show here is that you have someone who was
lying on the stand and it was a tragic consequence,” he said.
On Wednesday, the Houston City Council will consider extending the
contract with a private law firm that is representing the city in
court. The City Attorney has already paid $50,000 to the law firm of
Feldman & Rogers, and Wednesday’s vote would extend that to up to
$200,000.
Neither Michel nor Wawro would comment on exactly what financial
relief Rodriguez is seeking in the case, but Michel said “they began
with tens of millions of dollars that they would like the city to pay
them in this process.”
Since then, Michel said, confidential discussions between the parties
have been underway.
Rodriguez’s suit began with a wide range of defendants, including the
City of Houston, Harris County and individuals involved in the case.
The other defendants have either been dismissed from the case or have
reached private settlements, Michel said.
11 News legal expert Gerald Treece says that Rodriguez’s legal claim
his civil rights were violated is traditionally difficult to prove.
“There has to be a conscious indifference by a policy or practice of
the government,” he said. He added Rodriguez would have to prove city
leaders knew the evidence that helped lead to the conviction was
faulty and they “simply didn’t care."
Jury selection begins Tuesday morning in United States District Judge
Vanessa Gilmore’s courtroom.
Innocent man imprisoned for 17 years sues Houston for millions
Public defender discusses DNA testing's role in exonerations
June 13, 2009
By Jennifer Emily
Dallas County public defender Michelle Moore has represented seven of
the 20 people proven innocent by DNA testing after they had been
unjustly convicted and served time in prison. As their attorney, she
requests DNA testing and has worked with the district attorney's
office to investigate cases. She has also represented inmates whose
guilt was confirmed by DNA testing.
Moore works with the Innocence Project of Texas, the Wesleyan
Innocence Project and the University of Texas at Arlington Innocence
Network and the Center for Actual Innocence.
She took some time to talk to The Dallas Morning News about her work.
When did you start working on post-conviction requests for DNA tests,
and how did you become the attorney who handles many of these cases?
In 2001 when the law passed [allowing DNA tests]. Because it was a
frustratingly slow area of the law and the pay wasn't worth it for
most private attorneys, cases out of courts began to be handed to me
in an increasing number.
Dallas County has so many exonerations because officials kept the
evidence. Why do you think they kept it?
The word at the Dallas County courthouse has always been that the
tests were ordered to be kept by Henry Wade for future prosecutions.
I have never seen anything in writing to confirm this mandate from
Wade, but I think we have to give credit to the man for at least
keeping the evidence.
What do you say to inmates when their guilt is confirmed? Are you angry?
I am more angry at the man who will not admit his guilt after the
test comes back. I don't understand this attitude. If you ask for the
test, you should at least be enough of a man to admit the crime at
that point. My favorite response so far has been the guy who said,
"Oh well, I tried."
I appreciate the honesty at this point – even though it's a little
too late.
When someone is exonerated, it's a thrilling day. What happens next?
Then reality sets in. Where will he stay as time goes on? How do we
take care of his basic needs? How do we deal with the psychological
issues of wrongful incarceration and being institutionalized?
Why do you think these men were originally convicted since they
obviously were innocent?
I definitely believe that cross-racial misidentification is a huge
factor in these exonerations. In any of the cases, I believe that the
police were making a valiant effort to solve the crimes very quickly.
In doing so, the police developed tunnel vision and made the evidence
fit the person that they believed committed the crime.
Some of the cases involved prosecutors who did not turn over evidence
that should have been turned over according to the law. I believe
that these cases occurred because the DAs could not get promoted
without wins under their belt. Thus, Dallas County became a "win at
all costs" county to the detriment of these innocent men.
Eyewitness identification played a big role in these exonerations.
Why is that?
It was all we had before DNA came along. But we need to do the
eyewitness identification correctly. That is why we need police
departments to implement blind sequential photo lineups [where those
showing the photo lineup do not know who the perpetrator might be or
even if he's in the lineup]. That is why we need to do away with
"showups," where the defendant is brought to the witness for
identification, usually immediately after the crime.
Do you think there will be many more exonerations in Dallas County?
I have several cases on the radar at present that I would bet money on.
Public defender discusses DNA testing's role in exonerations
Perry can't pardon Timothy Cole because amendment proposition didn’t pass Legislature, his office says
BY DAVE MONTGOMERY
dmontgomery@star-telegram.com
AUSTIN — Gov. Rick Perry cannot grant a posthumous pardon to
wrongfully convicted inmate Timothy Cole of Fort Worth because a
proposed constitutional amendment that could have given him that
power died in a parliamentary standoff during the closing days of the
just-ended 2009 Legislature, Perry’s office said Thursday.
"Because the measure failed, the governor does not have the
constitutional authority to grant a posthumous pardon," said the
governor’s deputy press secretary, Katherine Cesinger.
Cole, who died in prison in 1999, was exonerated by a Travis County
judge this year after DNA testing cleared him of the rape of a Texas
Tech student.
Another man, Jerry Wayne Johnson, sent a letter to Cole’s mother
confessing to the crime.
A posthumous pardon has been a long-standing goal of Cole’s Fort
Worth-based family, who won passage this year of legislation bearing
Cole’s name to increase state compensation and benefits for other
wrongfully convicted Texans.
Passage of the proposed constitutional amendment, Senate Joint
Resolution 11, was also one of the family’s top-priority goals during
the 2009 session. But Cory Session of Fort Worth, one of Cole’s
brothers, contended that Perry could still pardon Cole without the
amendment and criticized the governor for not fulfilling what Session
said was a promise to the family to grant the pardon.
"We’re extremely disappointed in this," Session said. "He said he
would take care of it. If taking care of it is letting it wait for
another two years, no. It’s been 25 years. We’re tired of waiting."
Session said the family plans to turn to President Barack Obama in
hope of getting a presidential pardon.
SJR11, co-sponsored by Sen. Royce West, D-Dallas, and Rep. Senfronia
Thompson, D-Houston, was one of hundreds of measures that died after
Democrats waged a parliamentary slowdown known as a "chub-a-thon"
that was aimed at killing legislation toughening voter identification
requirements.
The constitutional amendment, which would have required voter
approval in the Nov. 3 election, was designed to "clear up any
questions about whether the governor can grant posthumous pardons,"
according to an analysis of the proposal by the House Research
Organization.
Cesinger said the governor would have been unable to grant the pardon
unless voters approved the amendment.
Officials at the Texas Board of Pardons and Paroles said the governor
currently is not empowered to grant a posthumous pardon. "Today, it
can’t be done," board Chairwoman Rissie Owens said.
But Amarillo attorney Jeff Blackburn, who has worked closely with the
Cole family as chief counsel for the Innocence Project of Texas, said
he hopes the governor can eventually grant the pardon. He commended
Perry for supporting legislation to help wrongfully convicted former
inmates.
"I believe we are going to find a way to grant clemency to Tim Cole,"
he said. "We’re pretty optimistic."
DAVE MONTGOMERY
512-476-4294
Perry can't pardon Timothy Cole
Wrongful conviction bills die
By Elliott Blackburn
AVALANCHE-JOURNAL
June 02, 2009
Texas legislators increased compensation for innocent residents who
spend years behind bars, but passed none of the reforms intended to
avoid future wrongful convictions as the session melted away Monday.
Proposed laws to expand prisoner access to DNA testing, clarify how
to handle pardoning innocent Texans after their death and change how
departments interrogate and collect eyewitness evidence died while
legislators fought over a different kind of identification problem.
"Our entire agenda, except for compensation, really ... all those
things were sitting on the House calendar when voter ID killed
everything off," Innocence Project of Texas policy director Scott
Henson said.
Justice reforms introduced in dramatic fashion a few months earlier
retired quietly in the background of a high-profile fight over
whether Texans should present photo identification to vote.
The Innocence Project and supportive legislators rolled out proposed
reforms as an Austin court heard testimony on the state's first
posthumous exoneration.
Tim Cole, a Fort Worth man who a Lubbock jury convicted of the rape
of a fellow Tech student in 1986, died in prison nine years before
DNA testing requested by his family and the Lubbock County District
Attorney's office proved his innocence.
His conviction relied heavily on mistaken identification by the
victim, who earlier this year came out supporting efforts to clear
Cole's name.
His family described an emotional welcome from legislators in
February. Cole's mother, Ruby Session and his youngest brother, Cory,
spent months lobbying for the reforms - Cory logged 14,000 miles and
three blown tires as he traveled from Fort Worth to Austin to testify
and lobby.
"We had everything in place," Cory said. "We really did have it, and
it would have been sweeping changes."
Senators unanimously passed legislation filed by Sen. Rodney Ellis, D-
Houston, requiring police departments to use more strict procedures
for photo and live line-ups to reduce false identifications. Senators
sent another bill encouraging police to videotape suspect
interrogations to the House in late May on a 28-2 vote.
The bills never made it any further as House Republicans insisted on
a vote on voter ID before pursuing other major business and House
Democrats ground the legislative process to a crawl to block it.
Ellis could not be reached for comment Monday.
A proposed state constitutional amendment carried by Sen. Royce West,
D-Dallas, to certify that Perry could pardon Cole suffered a similar
fate.
"It was unbelievable that it died," Henson said. "There were so many
things that had to go wrong all session long."
Legislators instead sent reforms Session considered long shots to the
governor - pay increases for the wrongfully convicted, a panel to
study how the convictions occur and rules to corroborate testimony
from jailhouse informants.
The study panel and jailhouse informant bills still wait for a
signature. Gov. Rick Perry signed the Tim Cole Act in late May,
calling the increase state compensation for wrongfully convicted
Texans from $50,000 to $80,000 a year and creating an annuity for a
lifetime of payments a "significant step for justice" in a statement.
The act, written by Dallas Democrat Rafael Anchia and Lubbock
Republican Sen. Robert Duncan, also introduced education benefits for
exonerees and allows heirs of an inmate who dies but is later cleared
to receive compensation.
"The compensation reform was huge," said Kevin Glasheen, a Lubbock
attorney who represents 12 exonerated men in cases in Dallas. "It's
been a long struggle."
Texas still needs to pass health-care coverage for exonerees next
session, he said.
The losses on the remaining legislation had been a disappointment, he
said.
"Criminals don't have a very big constituency, " Glasheen said. "There
aren't a lot of people that stand up and say, 'Hey, let's be fair to
criminals.' But I think we see these wrongful convictions, we see
that, hey, it's important that the criminal system work well to
protect the rights of the innocent."
The success rate didn't discourage Cory Session.
He didn't believe the governor needed a proposed constitutional
amendment to grant his brother the posthumous pardon for which their
mother longs. The governor's office did not return requests for
comment Monday.
Pressure on the remaining reforms would continue to build until next
time, whether the issue came up in a special session or two years
down the road, he said.
"We'll go back next session with a stronger will," Session said.
"We'll know that more people will have gotten out of prison by then."
To comment on this story:
elliott.blackburn@lubbockonline.com
766-8722
walt.nett@lubbockonline.com
766-8706
DNA testing, innocence panel bills still alive
By JIM VERTUNO
Associated Press Writer
© 2009 The Associated Press
May 29, 2009
AUSTIN, Texas — With the legislative session grinding toward its
conclusion, criminal justice advocates tried to rally support Friday
for bills they say will help keep innocent people out of prison.
Gov. Rick Perry has already signed into law a boost in compensation
for people who have been convicted and sent to prison for crimes they
didn't commit.
The session ends Monday. Other bills still percolating include some
that would improve access to post-conviction DNA and appeals,
recording of police interrogations of suspects, and another to create
a state innocence panel to review cases of wrongful conviction and
report on how similar mistakes can be avoided.
Texas DNA testing has exonerated about 40 former inmates in Texas,
the most in the nation, according to the Innocence Project. The 40th,
Jerry Lee Evans of Dallas County, was released Wednesday after
serving 23 years in prison for a rape he did not commit.
"We know the system is broken," said Sen. Royce West, D-Dallas. "But
we haven't done enough to try to fix it."
The lawmakers pushing for the changes are now wondering if there is
enough time.
Evans was at the Capitol on Friday and met with several legislators.
Sen. Rodney Ellis, D-Houston, said the former inmate could help push
through some reforms.
"Timing is everything," Ellis told Evans. "I'm trying to use this as
a lightbulb moment."
Ellis' post-conviction DNA testing bill would allow inmates to ask
for DNA testing of biological evidence that has not been previously
tested, and to retest material if new techniques provide a reasonable
likelihood that the new results would be more accurate and possibly
different than the original.
The bill also requires that any unidentified DNA profile discovered
during post-conviction DNA testing be compared to profiles already in
the FBI database to look for a match.
The innocence panel would review Texas' dozens of cases of wrongful
convictions and study what went wrong, look at how mistakes could
have been avoided and send its findings to the governor and state
lawmakers.
One bill that didn't make it to the final weekend would have directed
law enforcement agencies to have written policies for taking
eyewitness evidence and suspect lineups. Many of Texas' wrongful
convictions cases involved a victim or eyewitnesses identifying the
wrong person as the perpetrator.
In Evans' case, the rape victim identified him during trial.
"It was devastating," Evans said. "I thought she would say, 'That's
not him.' That was my whole defense."
Evans will be eligible for the increased compensation that Perry
signed into law the same day Evans was released.
The new law boosts from $50,000 to $80,000 for every year of
confinement and grants an annuity to provide a lifetime of income.
Exonerees also can get 120 hours of paid tuition at a career center
or public college.
The law is named the Tim Cole Act after a Fort Worth man who died in
prison in 1999 while serving time or a rape that DNA testing later
showed he did not commit.
DNA testing, innocence panel bills still alive
Victim of Circumstance?
Ed Graf was sentenced to life for burning his two young stepsons
alive. Two decades later, science may exonerate him.
DAVE MANN
MAY 29, 2009
This is the second story in an Observer series investigating how
widespread use of flawed arson science wrongly convicted dozens,
perhaps hundreds, of innocent people in Texas. You can read the first
story in the series, published on April 3—about Plano gun-shop owner
Curtis Severns—here.
Their deaths seemed suspicious from the start. Joby and Jason Graf
never played in the storage shed behind their house; they weren’t
even allowed inside it. So how—neighbors and family members in
Hewitt, Texas, just outside Waco, would wonder—could the 8- and 9-
year-old boys have locked themselves in that shed and set it on fire?
The only adult on the property on that hot Tuesday afternoon in
August 1986 was the boys’ stepfather, Ed Graf. He had left work
early, picked up the boys from day care, and arrived home just before
5 p.m. About 10 minutes later, neighbors on Angel Fire Drive saw
smoke billowing from Graf’s backyard. Flames tore the shed to the
ground in minutes.
By the time Clare Graf got the news and rushed home from the
elementary school where she taught kindergarten, the shed was a
smoldering, charred ruin. Walking into the house, she saw the pained
looks of neighbors gathered around the driveway and knew something
was wrong. Ed met her in the garage. Her boys were gone, he told her.
Gone where, she asked. She thought maybe they had run off somewhere.
She would never forget the words he said next: “Clare, Joby and Jason
are dead.”
“Just that cold, that callous—to me, the mother of the boys,” Clare
remembers. “It’s just engraved in my soul.”
A moment later, a firefighter walked in to tell Ed that rescuers had
found a second body. The fire department apparently had informed Ed
of only one death, though he had just told Clare that both boys were
dead. How, she would wonder, did he know unless he had set the fire?
The next day, Clare left Ed to stay with her family. Sequestered
together, Clare and her relatives and friends would piece together
many other suspicious moments that incriminated Ed. Two months before
the fire, according to court records, Graf had bought a $50,000 life
insurance policy on each boy. Days after the deaths, Graf filed a
claim for the insurance money. He had a history of breaking rules in
pursuit of fortune. In 1985, he had been caught embezzling more than
$70,000 over three years from the local bank where he served as vice
president, according to court records. After leaving the bank, Graf
became a claims adjuster with State Farm Insurance, where he helped
work on arson cases. One day in early 1986, family members would
later testify, he gave a discourse about the elements of arson he had
learned in his new job, how arson was among the most difficult crimes
to solve because fires burned up their own evidence. There were other
incidents that seemed innocuous at the time, but appeared suspicious
in retrospect. For instance, Graf had insisted that the boys keep the
price tags on shirts the family bought for the new school year. After
the fire, he returned the clothes for a refund.
“It was like a puzzle. We put all the pieces together, and it was
just clear as could be,” Clare says. “I had no doubt in my heart even
before they first ruled it arson.”
In a small community like Hewitt, rumors whip around fast. Within
days the perception set in that Graf had burned his stepsons alive.
Clare’s best friend and sister-in-law penned six-page letters to the
district attorney’s office, detailing their suspicions about Ed. With
pressure from the family and the town buzzing about a gruesome
murder, McLennan County prosecutors began to build a criminal case.
At the 1988 trial, prosecutors portrayed Ed Graf as a man with two
sides—a “Jekyll-and-Hyde” type, as Vic Feazell, the McLennan County
district attorney at the time, told jurors. He might appear a mild-
mannered banker and insurance adjuster, Feazell said, but underneath,
he was a controlling, jealous, and violent man. Clare would testify
that she and Ed were having marital problems, and that she had
planned to leave him. She told the jury Ed had behaved strangely in
the days before the fire. He was always obsessively organized. But in
late August 1986, he had neglected to refill the boys’ medications
and had let their breakfast cereal run low—lapses that had never
happened before. “Everything indicated that Ed knew that those kids
wouldn’t be around,” Feazell said.
Defense attorneys offered explanations for Graf’s behavior—he had
just neglected to go food shopping; he wanted the kids to keep the
tags on the shirts in case the clothes didn’t fit; he believed life
insurance a good investment. But prosecutors kept piling one small
piece of suspicious, circumstantial evidence on top of another to
convince the jury that Ed had planned all along to kill his stepsons.
Circumstantial evidence filled in a believable narrative, but
forensic testimony cinched the case. The physical evidence wasn’t
ideal. The crime scene had been destroyed just hours after the fire.
Firefighters bulldozed the shed as a favor to the family, so Clare
and Ed wouldn’t see its charred remains when they woke in the
morning. The physical evidence was hauled off to a dump.
Prosecutors brought in two arson experts—one from the Texas State
Fire Marshal’s office and a private expert from New York—who used
photographs of the scene to reconstruct how the blaze started. Both
testified that burn patterns on the shed floor indicated that someone
had intentionally started the fire with an accelerant, probably
gasoline. They told the jury that because the boys were found on
their backs, they must have been unconscious at the time of the fire.
Moreover, a door latch was found at the scene in the closed position.
All that evidence, the experts said, meant Graf had knocked out his
two young stepsons, dragged them into the shed, and locked the door
before setting the fire.
Defense attorneys tried to counter the forensic testimony. They
brought in their own arson expert to dispute some—but not all—of the
physical evidence. Their man wasn’t as polished and couldn’t refute
all the evidence. When both prosecution experts confidently testified
that, without doubt, the crime of arson had been committed, the jury
believed them.
On April 28, 1988, Ed Graf was convicted of capital murder by arson
and sentenced to life in prison. He’s remained jailed ever since.
But a few people around Waco have long believed Graf is innocent.
They told anyone who would listen that Graf was actually a victim: He
lost the stepsons he loved, lost his marriage and his family, and has
now spent more than two decades in prison for a crime he didn’t
commit. Until recently, they didn’t have much evidence to back their
claims. But in the past few years, arson science has undergone a
revolution. Scientific advances have undercut the key evidence that
sent Graf to prison. The people who have insisted for so many years
that Graf was innocent may have been right all along.
Even 21 years after Ed Graf went prison, Don Youngblood recalls
nearly every aspect of the case. He remembers the jury foreman’s
name, testimony from specific firemen, the look on the judge’s face
when the verdict was read. Youngblood was the investigator for Graf’s
defense team, and he believes Graf is innocent.
Youngblood is a former cop who’s worked as a private investigator for
three decades. He’s handled about 50 capital murder cases over the
years. Quite a few defendants, he says, were obviously guilty. A few
others he wasn’t sure about. “Mr. Graf is the one case out of 50 that
I’m thoroughly convinced that he did not do it,” Youngblood says. The
case haunts him. He chokes back tears. “It’s one case I never forget
about,” he says.
Ed and Clare Graf began dating in early 1984, two-and-a-half years
before the fire. They married seven months later. Ed adopted her two
boys, and the family moved into Ed’s house on Angel Fire Drive. But
Ed’s and Clare’s personalities never meshed. Ed is a numbers man,
rigid and meticulous. He tracked the family’s finances to the penny,
carried daily to-do lists in his shirt pocket, and kept a notebook in
his car that detailed the distances he drove and the mileage between
oil changes. Ed kept a neat home, everything in its place. He
instituted stern rules on Joby and Jason, who, neighbors would
testify at trial, were unruly kids who lacked discipline and
roughhoused too much when Clare and Ed first married. (Ed Graf, still
serving a life sentence in state prison, refused an interview request
from the Observer for this story.)
Clare was more free-spirited and less tidy. She was less strict with
the kids and felt they should have more fun than Ed would allow.
Clare would later testify that they fought frequently about these
issues. But in early 1986, six months before the fire, Clare gave
birth to a third son, her only child with Ed. The boy was two years
old when his father went to prison. For a time, Ed would see his son
occasionally. Before she died, Ed’s mother would bring the boy with
her on prison visits. As he grew up, though, the boy began to believe
that his biological father was a murderer who had killed his half-
brothers, and the visits ceased.
In Youngblood’s view, one of the most damaging pieces of evidence
against Graf was the life insurance he bought for Joby and Jason.
Graf testified that he bought the policies on all three children,
including their infant son, to save money for college. In fact,
Graf’s father had bought a similar policy for Ed when he was a child,
from the same insurance company—a policy that acts as a savings
account for tuition. Youngblood says Graf’s purchase of life
insurance just before the fire was coincidence.
As he got to know Ed Graf, Youngblood says, he didn’t believe the man
capable of such a gruesome crime. Graf has a cool exterior,
Youngblood says, but is kind. He had no history of violence. While he
embezzled money, that doesn’t mean he was capable of burning two
children alive. “Usually the embezzlers are very passive people,”
Youngblood says, which is why they steal money by secretly siphoning
cash into their own accounts instead of, say, robbing a bank.
Youngblood believes the more likely explanation for the fire is that
the boys ignited it themselves. He suspects they snuck into the shed
to experiment with fire and it got out of hand. Neighbors testified
at trial that they had seen Joby and Jason smoking cigarettes and
playing with fire. A teacher at their school testified that she had
caught them playing with matches in the schoolyard. Two children who
played with Joby and Jason testified that the boys had started a
small grass fire in a neighbor’s yard a few months before their
deaths. Another neighbor told Graf’s attorneys that she wouldn’t
allow Joby and Jason in her house because she worried about their
misbehavior, including starting fires.
“It’s a tragic situation,” Youngblood says. “I feel comfortable
saying without any doubt in my mind that these were two little boys
who liked to play, liked to play hard and play a little dangerous.
They liked to play with fire. That was substantiated.”
It’s an example of why circumstantial evidence doesn’t prove guilt.
There are always alternative explanations. Once you move past the
circumstantial evidence, the case against Graf begins to look flimsy.
No witnesses saw Graf drag the boys into the shed, though his yard
was visible to several neighbors that afternoon.
Recently Walter Reaves, a Waco attorney who works on innocence
claims, began looking into Graf’s conviction. He talked with
Youngblood and discerned right away that the case was mostly
circumstantial. In Reaves’ view, the only hard evidence that linked
Graf to murder was the expert forensic testimony.
Last year, as Reaves began working to win exoneration or a new trial
for Graf, he asked Dr. Gerald Hurst in Austin, one of the country’s
leading arson experts, to re-examine the case. The two men had worked
together on the case of Cameron Todd Willingham, who was executed in
2004 for starting a house fire in North Texas that killed his
children. Willingham was convicted on flawed arson evidence and was
almost assuredly innocent. (The Texas Forensic Science Commission is
studying the Willingham case and could release its report as early as
June.)
Hurst, who has helped exonerate dozens of defendants wrongly indicted
or convicted by junk arson science, produced a report on the Graf
case in September 2008 that picks apart the physical evidence. He
concluded that nearly every piece of forensic evidence that sent Ed
Graf to prison for life was seriously flawed.
Perhaps the biggest problem with the case was the lack of a crime
scene. After the shed was bulldozed and the evidence hauled to a
dump, fire investigators had little to examine. When the investigator
from the state Fire Marshal’s office arrived, he had to visually
examine the remains of the shed from the lip of a pit at the dump
site. All that remained of the fire scene was a handful of grainy,
poorly exposed photographs taken by volunteer firefighters. Yet the
prosecution’s experts claimed they could discern exactly how the fire
started.
Hurst says that’s ludicrous. He found the forensic evidence against
Graf was a collection of “old wives’ tales” that researchers have
disproved in the two decades since the trial. He sees no evidence
that gasoline was poured on the floor. Nor does he see evidence that
Graf rendered the children unconscious. Hurst calls the Graf case one
of the most inept arson investigations he’s ever seen. It would be
comical, he says, if it hadn’t sent a man to prison.
The fire in Graf’s shed on Aug. 26, 1986, quickly mushroomed to
intense burning known as flashover, or full involvement. The
phenomenon occurs when heat and gas build until an entire room or
building explodes in flames. After the intense damage caused by
flashover, determining how a fire started can be difficult.
Nearly 23 years ago, when state Fire Marshal Investigator Joseph
Porter arrived in Hewitt, investigators didn’t fully understand
flashover. They certainly didn’t know that flashover could make an
accidental fire look like arson.
Porter was 29 in 1986. He had worked with the Fire Marshal’s office
for one year. Before that he had served as a fire safety inspector in
College Station, where he resigned amid allegations that he falsified
reports, according to court records.
At the time, Porter, like many investigators, believed a fire
couldn’t have reached flashover in just a few minutes unless an
accelerant such as gasoline had started it. Porter—like many
investigators then and now—mistakenly believed that arson fires burn
faster and hotter than accidental fires. So he began with the flawed
assumption that because the shed achieved flashover so quickly,
someone probably used gasoline to start the fire.
When he studied photographs of the scene, Porter testified, he saw
what he thought were pour patterns—burn marks that investigators once
thought indicated where someone had poured gasoline. (Charles King, a
private expert brought in by prosecutors from New York to bolster the
case, provided almost identical testimony.) The notion that pour
patterns and burned holes in wooden floors indicated the presence of
gasoline was once widely accepted among fire investigators (and still
is in some quarters). Such unscientific assumptions were part of the
inherited knowledge passed from one generation of fire investigators
to another and used for decades to convict thousands of defendants.
When these assumptions were put to the test, many proved wrong.
In 1991, three years after Graf’s conviction, investigators in
Jacksonville, Florida, ran a groundbreaking experiment. They were
investigating a fire scene that, like the one in the Graf case,
contained clear pour patterns from a fire that had quickly gone to
flashover. They thought it was textbook arson. To be certain, the
investigators ran a test fire in an abandoned house to determine if
an accidental fire with similar furniture in the room could cause
similar damage without gasoline. It could. Flames and heat from
normal flashover, they found, can severely scorch a floor, and burn
patterns they thought resulted from gasoline were actually caused by
an accidental fire going to flashover. Later research would show that
accidental fires can burn as fast as arson fires, sometimes faster.
An accidental fire on a couch can send a room to flashover in less
than three minutes.
When Hurst studied the evidence in the Graf case, he saw that the
prosecution experts had mistaken burn patterns caused by normal
flashover for evidence of gasoline. (When gasoline does ignite on
wood floors, it burns off and hardly darkens the wood.) Hurst says
that given the highly flammable furniture in the shed—including a
fold-up bed—an accidental fire could easily have sent the shed to
flashover in minutes.
Hurst saw several other major flaws in the forensic evidence.
Porter and King testified that because their bodies were found on
their backs in a “relaxed position,” the boys were unconscious at the
time of the fire. The two experts testified that conscious people who
had tried to crawl out of a fire would be found lying on their
stomachs. “Any fire victim that is awake and alert during the fire
and makes any effort to escape, the odds are very, very high that
they will always be found face down,” Porter testified. “You will
very, very seldom find one face up.”
In fact, there is no evidence that the boys were unconscious during
the fire. Toxicology tests from two autopsies showed no trace of
sedatives or suspicious chemicals in their systems. Moreover, it’s
not uncommon to find victims in accidental fires lying on their
backs. Fire victims often pass out from inhaling smoke or other
noxious fumes. When they collapse, some victims fall forward, some
fall backward. Hurst says the position of the bodies in this case has
little to do with how the fire started.
Perhaps the most obviously flawed forensic testimony from Porter and
King was their interpretation of cracks and char patterns on the
shed’s wood beams. They claimed these cracks indicated the direction
in which the fire had burned. They asserted that when fire burns
upward, it leaves horizontal cracks in charred wood. When fire burns
downward, they said, it leaves vertical cracks. Using this odd
theory, they testified that the photos of the scene clearly showed
the fire had started on the floor. They could tell this because there
were horizontal cracks across the burnt beams that once supported the
shed’s walls. On the joists that had supported the floor, they saw
vertical cracks. These patterns showed that the fire had burned up
the walls and down below the floor, meaning it had originated on the
floor, Porter testified.
In reality, cracks in the wood have nothing to say about the
direction in which a fire burned. When wood burns, it cracks across
the grain. On the standing wall beams in the shed, the grain of the
wood ran up and down, so the cracks in the shed beams were
horizontal. On the floor and ceiling joists, the wood grain ran
parallel to the floor, so the cracks were vertical. Hurst says that
Porter’s and King’s theory about the cracks appears to have been
simply made up.
Charles King died in 2002. Joseph Porter left the state Fire
Marshal’s office a decade ago and couldn’t be located for comment.
Porter worked for the Fire Marshal for more than 13 years and led
investigations into at least 121 fires, according to partial agency
records (files from that period are sketchy). At least 10 of those
defendants remain in prison, including Graf.
Hurst also casts doubt on another key prosecution claim—that Graf
locked the kids inside the shed. Porter and King testified that they
believed the shed doors were closed because of the burn patterns on
the door hinges. (Hurst contends the shed was so thoroughly burned
that it would be impossible to discern any valuable information from
a piece of scorched door hinge.) Moreover, a neighbor, William Flake,
testified at trial that he had a good view of Graf’s yard from his
patio during the fire and clearly remembered seeing one of the shed
doors open.
In his report on the case, Hurst contends that the fire’s thirst for
oxygen makes it highly unlikely the doors were closed. The shed had
no windows. Had the doors been closed, the fire would have died down
for lack of oxygen. It’s nearly impossible that the fire could have
achieved flashover so quickly—which everyone who’s looked at the case
agrees it did—unless the door was open, giving the fire a steady air
source.
In Hurst’s view, the amount of burning in the shed, along with the
demolition of the scene, makes it difficult to discern how the fire
started. He believes the likeliest scenario is an accidental fire
started by the kids near the door. The door was open, but the flames
may have prevented escape. Trapped in the windowless shed, they had
no way out. Before long, the fumes overwhelmed them.
That’s his theory. It’s impossible to know for sure. One thing Hurst
does know: No competent fire investigator could take the evidence in
this case and conclude the fire was intentionally set by Ed Graf.
Last year, after 21 years in jail for murdering his stepsons, Ed Graf
came up for his first parole hearing. He was turned down. Given the
nature of his crime, it seems unlikely he’ll ever earn release—unless
he’s exonerated.
After the tragedy of losing her sons and seeing her ex-husband
convicted of murder, Clare has pieced her life back together in a
Dallas suburb. She’s been happily re-married for 19 years. She still
teaches elementary school. The son Clare had with Ed is 23 years old
and attending graduate school. He’s changed his name and disowned his
biological father. He hasn’t seen Ed in more than nine years.
“I feel very fortunate to even be sitting here talking to you and not
be some person who fell apart at the seams,” Clare says. “I feel very
fortunate to have gone on with my life. My kids are always with me.”
She says that even if a re-examination of the forensic evidence finds
problems, it won’t change her opinion.
Vic Feazell, who resigned as D.A. of McLennan County not long after
the Graf trial in 1988 and now practices civil law, says the
challenges to the forensic evidence haven’t changed his mind, either.
“You can always come up with this stuff after the fact,” he says. “I
wouldn’t have been able to stand up and argue the case unless I
believed beyond a reasonable doubt that he did it. ... I also know
there’s plenty of room for differing opinions on these expert
opinions. You need to look at the case as a whole, which is what the
jury did.”
Walter Reaves says he will request a new trial for Graf in the coming
months. He has submitted the evidence to a panel of arson experts
assembled by John Jay College of Criminal Justice in New York to
examine questionable arson prosecutions. He’s waiting for their report.
Meanwhile, Ed Graf sits in jail. Twenty-three years ago, he had a
life many would envy—a steady job, a wife, two stepsons, a new baby.
He went to church. He owned a home in a quiet neighborhood. That all
changed on a hot Tuesday in August 1986. Some people will tell you
that Graf has suffered for good reason and even that he hasn’t
suffered enough, that they know in their hearts he’s a murderer and
should have received the death penalty. They hope he burns in hell.
Others will tell you—with equal conviction—that Graf had his life
taken from him unjustly.
It’s impossible to bridge these two perceptions of the man. It’s also
difficult to say conclusively that Graf is innocent. What does seem
clear is that, given the botched forensics in the case, he never
should have been convicted.
Victim of Circumstance?
EDITORIALS & OPINIONS
May 29, 2009
The Tim Cole Act helps, but more work remains to eliminate wrongful
convictions in Texas
At the Texas Capitol in Austin and at a courthouse in Dallas, two
scenes played out Wednesday that highlighted grave miscarriages of
justice and demonstrated valiant efforts to right wrongs done in the
name of the state.
Gov. Rick Perry signed into law the Tim Cole Act, named for a young
Fort Worth man who was wrongly convicted of raping a fellow Texas
Tech student in 1985. Cole, who died in prison in 1999, is the first
person in Texas to be exonerated posthumously by DNA evidence.
The new legislation increases lump-sum payments to exonerees from
$50,000 to $80,000 for every year of confinement and grants an
annuity to provide income for the rest of their lives. It also pays
for up to 120 hours of tuition at a public college or career center.
On the same day, Dallas County released Jerry Lee Evans, its 20th
exoneree since 2000. DNA testing proved that he was not guilty of the
rape for which he had served 23 years in prison.
More than 40 former Texas inmates have been proved innocent through
DNA testing. Many of them were charged after being picked from a
photo lineup and were convicted based on eyewitness testimony.
The state can’t give Cole his life back, and it is impossible to
restore the years taken from Evans and the others who were locked up
for so long. What the state can do — and is doing through this
legislation — is try to correct the injustice and assist these
innocent men in reclaiming their lives.
The governor lived up to the promise he made Cole’s family when he
said that he would sign any bill with Tim Cole’s name on it that
reached his desk. He is to be commended for that.
Other worthy criminal justice legislation supported by the Innocence
Project of Texas — a nonprofit organization that works to exonerate
the falsely accused — will likely die in the Legislature before the
session ends Monday. Those bills call for new procedures for
eyewitness identification, including photo lineups; major writ
changes; and mandatory video or audio recording of interrogations.
There is a slim chance that those measures could be added as
amendments to other bills and be passed this session, but supporters
are not counting on that. If all the bills fail in these final days,
their sponsors and supporters have one other hope.
Because one of the governor’s pet bills, the voter-identification
legislation, also died — with the help of House Democrats’ stalling
tactics — it is believed that Perry will call a special session this
summer to take up the matter.
While we don’t think there should be a special session to deal with
voter ID, if Perry does call one, he should add the criminal justice
legislation to the agenda.
We see no evidence of massive voter fraud in Texas, but there’s more
than enough proof that serious problems exist with correctly
identifying suspects in criminal cases.
Just ask Jerry Lee Evans and the grieving family of Timothy Cole.
The Tim Cole Act helps, but more work remains to eliminate wrongful
convictions in Texas
Dallas County's 20th DNA exoneration expected
May 26, 2009
Jerry Lee Evans matched the description of the man who abducted and
raped a woman in Deep Ellum in 1986. He even had a similar speech
impediment.
But today Evans, 47, is expected to walk out of the courtroom a free
man because DNA testing shows he is not the man who raped an 18-year-
old Southern Methodist University freshman at knifepoint.
Dallas County prosecutors Tuesday pointed to questionable witness
identification procedures as a leading reason for his wrongful
conviction.
When the woman looked at a six-picture photo spread, Dallas police
officers "were leading and encouraging" her to pick Evans out of the
photo lineup, said Mike Ware, who oversees the DA's conviction
integrity unit. Officers were also "enthusiastically encouraging"
after the woman selected Evans.
The Dallas Police Department changed its policies this year in an
attempt to eliminate intentional or unintentional encouragement of
witnesses through words or body language. Now, photo lineups are
shown by an officer not involved in the case and are shown sequentially.
Traditionally, photo lineups are displayed with all photos on one
page by the investigating officer.
Evans' DNA exoneration marks the 20th in Dallas County, which has
more than any other jurisdiction in the nation since 2001, when Texas
began allowing post-conviction genetic testing. Unlike other
counties, Dallas County preserved much of the valuable DNA evidence
that could conclusively prove a convict's innocence or guilt.
Evans' exoneration will be the 19th in which a man was convicted in
Dallas County based on faulty eyewitness testimony.
The good news
Evans, who did not respond to an interview request at the Dallas
County Jail, wasn't told that DNA cleared him until Tuesday
afternoon, said Michelle Moore, the attorney who agreed to help him
obtain DNA testing.
Moore said that Evans was excited by the news but had expected it.
"I knew it would happen," he told Moore. "It was just a matter of when."
Evans' physical description was so similar to that of the rapist – he
was the right height and he owned gloves with metal spikes – that
even his attorney was skeptical.
"I would have sworn to you that he did it," Moore said. "The
description was so right on."
Moore said she believes Dallas police had "tunnel vision" when making
their case. She said that once they saw Evans, they built the case to
support his guilt. He ended up with a life sentence.
"They had a guy they wanted to pin it on, and they made it fit," she
said. "I want to say it's a setup by the police, but I have no
evidence."
Abduction and attack
Court records show that on Aug. 29, 1986, the victim and a friend, an
18-year-old University of North Texas student, were going dancing in
Deep Ellum. The women were abducted at knifepoint as they were
leaving a friend's apartment on Exposition Avenue.
A man told the women to drive to an alley where two other men were
waiting with knives. The men held knives to their throats and
threatened to kill them.
The original abductor told the women to drive to a secluded area
behind a baseball field where he forced the SMU student to perform
oral sex on him, and he then raped her. He then took the women's
money and left.
One of the other men forced the other woman to perform oral sex and
tried to rape her but could not.
The two men threatened to cut the women into pieces and "throw them
into the woods." But the women persuaded the men to walk to a nearby
apartment complex.
A passer-by offered the women a ride because he thought they were in
trouble. He took them back to SMU where they called police.
Court records say that Dallas police Detective Paul Lachnitt went to
a nearby day labor bunkhouse to see if anyone matched the description
of the rapist. People told him that the description matched a guy
known as "Hercules," whose real name was Jerry Lee Evans.
Lachnitt, who has been retired for 10 years, said Tuesday in an
interview that he did not recall the case and was never the lead
detective in sexual assault cases.
He said it was "more than likely" that he was helping another
detective with the case.
Evans testified at the trial that he did not rape the woman and said
he had an alibi, according to court records.
He testified that he worked that day and got to the bunkhouse at 5:30
p.m. and then walked to a nearby restaurant to get coffee. He then
went back to the bunkhouse before leaving at 10 p.m. to take a bus to
a pool hall on Grand Avenue.
No one at those places remembered seeing him.
Evans has prior convictions for misdemeanor theft and carrying an
illegal knife, court records show.
Dallas County's 20th DNA exoneration expected
May. 17, 2009
CRIMINAL JUSTICE: Dallas County DA leading the way to fixing Texas’
inequitable system
The criminal-justice system in Texas is riddled with injustices. But
that’s nothing new. The people of this state have found ways to live
with profound inequities in this dark system for more than a century.
What is new is the light that has appeared on the horizon over the
past few months.
As horrible as the experience has surely been for Timothy Cole’s
family, the case they kept alive after Cole’s death in a Texas prison
brought attention to the issue of wrongful convictions, an issue that
touches on all of the criminal-justice system’s most basic flaws.
Cole, a Fort Worth native and Texas Tech student, was convicted of a
rape he did not commit in Lubbock in 1985, died behind bars in 1999
and was formally exonerated by a state judge in April.
The Tim Cole Act, which passed the Texas House and Senate and awaits
Gov. Rick Perry’s signature, would raise the figure the state pays to
wrongfully convicted inmates from $50,000 to $80,000 for each year
spent behind bars. At the very least, the public notice his case has
generated ensures that Cole did not die in vain.
A reality show, of all things, is shining an even brighter light on
the issue of wrongful convictions. Dallas DNA, airing Tuesdays on the
Investigation Discovery channel, follows Dallas County District
Attorney Craig Watkins, who is providing more leadership than anyone
else in the state in reforming the system. Watkins established a
Conviction Integrity Unit and partnered with The Innocence Project of
Texas to take a fresh look at convictions in which DNA evidence could
prove the actual innocence of convicted criminals. Those re-
examinations have resulted in 19 exonerations since 2001 in Dallas
County alone, with more sure to come.
It seems strange to have to argue that the first goal of a prosecutor
should be to ensure that he is placing only guilty people behind
bars. Stranger still, Tarrant County has been slow to follow Watkins’
lead. There are good reasons for doing so, not the least of which is
economic.
The prospect of paying a victim’s family $80,000 per year of wrongful
incarceration ought to provide ample incentive for getting
convictions right on the front end and to rectify mistakes as soon as
possible.
It costs money to imprison the wrongfully convicted, of course, and
wrongful convictions allow the guilty to go free.
Watkins also claims that his prosecution rate is up since he
instituted the Conviction Integrity Unit — because juries are
increasingly inclined to believe that Watkins’ evidence against
defendants must be solid if prosecutors are bringing cases to trial.
I don’t believe that Texas prosecutors intentionally send innocent
people to prison or to Death Row, but I know that they’re human. I
also know that humans make mistakes and operate within flawed
systems. (According to the Texas Moratorium Network, nine men have
been freed from Texas Death Row with full exonerations, and three who
have been executed were probably innocent.)
I would like to think that Tarrant County prosecutors never send
innocent people to prison, but I would feel better if we had more
structural assurances like those Watkins has put in place in Dallas.
Tarrant County routinely destroys DNA evidence from criminal cases
after a given defendant’s first round of appeals has been exhausted.
Saving the physical evidence that could later establish innocence and
devoting resources to guarantee the integrity of convictions more
proactively would begin to put those assurances in place.
In Fort Worth we’re fond of saying that life is too short to go to
Dallas.
If that is true, then it’s really too short for us to sit back and
watch Dallas County do something so basic so much better than we’ve
managed to do it.
J. Todd Moye of Fort Worth is
a member of the Star-Telegram’s
2009 Community Columnist Panel.
E-mail; moye@unt.edu
Dallas County DA leading the way to fixing Texas’
inequitable system
Bill paying wrongly convicted more passes
May 15, 2009
By Jeff Carlton
Associated Press
DALLAS — With the help of DNA testing, Texas has freed more wrongly
convicted people than any other state. Soon it will compensate them
better than any other state, too.
The Texas House has agreed with changes made in the Senate on a bill
to boost payments to the wrongly convicted, voting 132-13 for the
measure Thursday.
Gov. Rick Perry is expected to sign the legislation, which is named
for Tim Cole, a Fort Worth man who died in prison in 1999 while
serving time for a rape that DNA testing later showed he did not
commit. Last month in Austin, Perry met with Cole’s family and was
photographed hugging Cole’s sobbing mother.
The bill increases lump-sum payments from $50,000 to $80,000 for
every year of confinement and grants an annuity to provide a lifetime
of income. Exonerees will get 120 hours of paid tuition at a career
center or public college. Senators removed a provision to provide
health insurance coverage for exonerees.
It also provides an additional $25,000 for each year a wrongly
convicted person spends on parole or as a registered sex offender. No
other state has such a provision, said Barry Scheck, the co-director
of the Innocence Project, a New York-based legal center specializing
in overturning wrongly convictions.
The bill would give the wrongly convicted in Texas the most generous
compensation package in the nation.
“It is a landmark bill,” Scheck said. “For a fixed damage award, it’s
the highest in the country.”
Cory Session, Cole’s brother, said his brother died “a martyr for
innocence.” The likely passage of the bill, he said, makes “you walk
a little taller and stick your chest out a little farther.”
“Almost 25 years ago, the only thing people knew about Tim Cole’s
name was he was a convicted rapist,” Session said. “Now they know his
name stands for a lot more.”
The compensation applies only to wrongly convicted people who were
actually innocent. Those whose convictions are reversed on
technicalities such as insufficient evidence would not be eligible.
Also ineligible would be exonerees who are subsequently convicted of
felonies.
By accepting state compensation, the wrongly convicted must agree not
to sue the state, a factor in attracting support from municipalities
such as Dallas, where many of the wrongly convicted are from. There
are 39 people in Texas who qualify for compensation, said Kevin
Glasheen, a Lubbock attorney who represents some of the exonerees and
led the lobbying efforts for the bill. Nineteen are from Dallas.
“The fact that Texas did have such a problem also means these guys
had comparatively good claims,” Glasheen said. “It is a local
government cost-saving measure, ultimately.
“It’s a good trade-off. It gives guys a quick, fair way of resolving
claims without having to go through lengthy court battles.”
Bill paying wrongly convicted more passes
James A. Fry: I put away an innocent man
May 14, 2009
When I prosecuted Charles Chatman for aggravated rape in 1981, I was
certain I had the right man. His case was one of my first important
felony cases as a Dallas County assistant district attorney. Chatman
was convicted in a court of law by a jury of his peers. They, like
me, were convinced of his guilt.
Nearly 27 years later, DNA proved me – and the criminal justice
system – wrong. Chatman was freed from prison in January after DNA
testing proved him innocent. He spent nearly three decades behind
bars for a crime he did not commit – a stark reminder that our
justice system is not immune from error. No reasonable person can
question this simple truth.
I am proud of having been a prosecutor; it is honorable work. In
fact, I still have a portrait of former Dallas County District
Attorney Henry Wade in my law office. He was a good man, and he gave
me a chance to be a trial lawyer. However, my unknowing involvement
in prosecuting an innocent man has been a troubling experience.
Chatman's story is tragically not unique. The staggering number of
exonerations attest to just how easily the innocent can be convicted.
Nationally, 225 people have been released from prison after DNA
testing proved their innocence. Seventeen of them had been sentenced
to death. Twenty DNA exonerations were from Dallas County alone, the
most of any U.S. jurisdiction. The vast majority of those exonerated
in Dallas County would still be in prison but for the fact Dallas
preserved its DNA evidence.
As with so many of these cases, Chatman was convicted on the
testimony of one eyewitness. Witness misidentification is one of the
greatest causes of wrongful convictions nationwide, playing a role in
more than 75 percent of cases with DNA exonerations.
The fault in Chatman's case, however, lies not with the victim, who
honestly believed she had identified the right man. Instead, it lies
in part with the flawed witness identification procedures used by law
enforcement agencies. Research has shown that relatively small
changes can greatly improve witness accuracy, changes we urgently
need to implement.
Witness identification is not the only contributor to wrongful
convictions. Far from it. Politicians – a category that includes
elected officials, district attorneys and judges – need to be less
concerned about remaining in office and more concerned with
determining the truth. More effort needs to be given to see that
court-appointed attorneys have adequate compensation and
investigation funds. Until these issues are addressed and reforms put
in place, the number of innocent men and women sent to prison will
continue to rise.
Chatman's case was not a capital crime, but the problems that led to
his wrongful conviction raise the question: How can we continue
carrying out executions in Texas when we know the system is so prone
to error?
For years, Texas has led the nation in the number of executions. Why
don't we now strive to lead the nation in a new direction: reforming
a justice system in urgent need of reform?
For years I supported capital punishment, but I have come to believe
that our criminal justice system is incapable of adequately
distinguishing between the innocent and guilty. It is reprehensible
and immoral to gamble with life and death.
I am no bleeding heart. I have been a Republican for over 30 years. I
started my career as a supporter of removing violent people from
society for as long as possible, and I still believe that to be
appropriate.
But I also believe that the government should be held to the
strictest burden before it deprives a citizen of his freedom. It is
not too much to ask that we not convict and execute innocent people
in our quest to enforce the law. Let's get this system fixed.
James A. Fry was a Dallas County assistant district attorney from
1980 to 1982 and currently practices family law in Sherman.
His e-mail address is; jamesfrypc@verizon.net
James A. Fry: I put away an innocent man
Texas Justice on Trial
A new movie and TV show spotlight the legacy of race and injustice in
the Lone Star State
Radley Balko
May 8, 2009
The new movie American Violet is based on the real story of Regina
Kelly, a woman from the small town of Hearne, Texas who was wrongly
arrested during a drug sweep on a public housing complex. Residents
say the sweeps happened every year. Cops toting big guns and dressed
in SWAT gear would jump out of moving vans (and once even a
helicopter) and proceed to weed out a large portion of the town's
black population. In November 2000, Kelly was one of 26 arrested. All
but one of them were black. She was innocent. (At first she thought
she had been arrested for overdue parking tickets.)
Facing 15-20 years in jail for selling drugs in a school zone, Kelly
was pressured by her public defender to take a plea that would have
given her probation. Other women in the complex had already done so,
including some that Kelly suspects are also innocent. She refused.
Pleading guilty would have made her a felon, costing her to forfeit
her housing and possibly lose custody of her children. So she waited
for her trial.
Five months later the charges were dropped. During the first trial
that resulted from the mass arrests, it came out that the police
informant—whose word was basically the only evidence that the police
had in many of the cases—had been lying. But by that point several
people had already accepted plea aggrangements and been duly convicted.
Thus far American Violet has been warmly reviewed. But some critics
have balked at the movie's ham-handedness, noting that the villains—
the racist district attorney and the hapless public defender—come off
as flat and cliched. They're right. Much of the movie does follow the
worn template of the southern courtroom drama, right down to the fish-
out-of-water Jewish lawyer from the American Civil Liberties Union
who awkwardly arrives in town to save the day.
But there's no reason to blame screenwriter Bill Haney. That's how
the story actually happened. Sure, it would be nice to show a
district attorney who had learned from his mistakes, who vowed to
temper his pursuit of future convictions by admitting that launching
broad drug sweeps based only on the word of shady informants will
sometimes result in the arrest of innocent people.
The problem is that if the film had shown that sort of character
development, it would no longer be true to the story it's based on.
Texas District Attorney John Paschall didn't change one bit. After
dropping the charges against Kelly and the others who hadn't yet
accepted plea bargains, he said he was still certain they were guilty—
just as he does in the movie. He told the Dallas Morning News, "The
only way I'd watch [American Violet], I'd have to be handcuffed, tied
to a chair and you'd have to tape my eyes open."
If American Violet feels preachy and overbearing at times, it's
because the truth itself is sometimes hard to believe. The new
reality show Dallas DNA, which debuted last week on the cable network
Investigation Discovery, is a good illustration. The show follows
Dallas District Attorney Craig Watkins as he attempts to uncover and
correct the wrongful convictions of his predecessors, most notably
the longtime law-and-order legend Henry Wade.
Watkins, a former defense attorney, became Texas's first black
district attorney after being swept into office in the anti-GOP
backlash of 2006. He has since made national headlines by setting up
what he calls a Conviction Integrity Unit, which consists of
assistant district attorneys whose sole job is to work with groups
like the Texas Innocence Project to find possible incidences of
wrongful conviction.
In an interview with Reason last year, Watkins discussed how he's
trying to purge his office of the poisonous culture that long
pervaded its halls, a culture so corrupt that Watkins says
prosecutors considered getting the innocent convicted as guilty to be
a badge of honor—a testament to their power in the courtroom.
That might seem far-fetched until you consider that DNA testing has
so far exonerated 18 people in Dallas, which is more than any other
city in the country (and more than most states). And by Watkins own
admission, he is really just getting started. His office is currently
reviewing more than 100 other cases, and there are hundreds more to
sort through. And these, of course, are only those cases for which
DNA testing could be dispositive of someone's guilt.
Dallas' hang 'em high culture was uniquely oblivious to concepts like
fairness and justice over the years, and the high number of
exonerations is likely to rise. Consider this: Facing a budget
shortfall in the the early 1980s, the county started sending its
biological evidence to a private lab for storage. That evidence has
been preserved, allowing Watkins' Conviction Integrity Unit to go
back 30 years in search of wrongful convictions. In other
jurisdictions, evidence from older cases has usually deteriorated, or
has been destroyed.
Dallas DNA isn't fictionalized, but it's just as moving in places as
American Violet. More notably, viewers unfamiliar with groups like
the Innocence Project or with the spate of DNA exonerations we've
seen over the last decade may well find parts of the show just as
implausible as the more melodramatic portions of the movie.
After 40 years of "get tough on crime" rhetoric and policies, we can
now clearly measure the impact on the country's criminal justice
system. The sort of multi-jurisdictional drug task forces that led to
the raids and wrongful arrests in Texas may have been phased out in
that state, but they still thrive—complete with federal funding—in
most other states. Watkins has made headlines precisely because he's
such a rare specimen, a prosecutor who is actively seeking out and
correcting wrongful convictions, instead of fighting like hell to
preserve them.
In that sense, both Dallas DNA and American Violet have satisfying
endings. You're left with the feeling that justice prevailed, even if
it took a long time coming. For productions dealing with the
inadequacies of the criminal justice system, that may be the most
glaring "truth is stranger than fiction" moment of all.
Radley Balko is a senior editor at Reason magazine.
Texas Justice on Trial
Editorial: Exonerees deserve better compensation
April 28, 2009
There's probably no adequate way to compensate people who serve
prison time for crimes they didn't commit. The psychological effects
alone can be devastating. Once freed, exonerees often are ostracized
like real felons, and the state provides no help finding them jobs
and rebuilding their ruined lives.
It's no wonder that many Texas exonerees, including at least one here
in Dallas, wind up homeless and walking the streets.
Last week in Austin, the House passed a bill sponsored by Rep. Rafael
Anchía of Dallas, boosting compensation for exonerees and helping
ensure they rejoin the ranks of productive citizens. It's dubbed the
Timothy Cole Act, honoring a former Texas Tech student who died in
prison after serving 14 years of a 25-year sentence for rape.
DNA evidence exonerated him.
Currently, exonerees receive lump-sum payments by the state of
$50,000 for each year of imprisonment, $100,000 in death-row cases.
Total payments so far by the state in 46 wrongful-conviction cases
have been paltry, averaging less than $200,000 per person.
Lawyers typically get the bulk of that money. What little remains
tends to be quickly blown by the exonerees in a wild celebration of
their newfound freedom. Little of it goes toward helping them get
their lives back on track in a constructive, organized way.
Anchía's bill would boost lump-sum payments to a maximum of $80,000
for each year of imprisonment. But it offers a far better option: a
strict schedule of monthly annuity payments, guaranteeing exonerees
and their families an income for life. It also provides for health
insurance and tuition payments so they can learn skills or attend
college.
Exonerees who accept the payments waive their right to sue for
additional compensation, potentially saving the state millions in
litigation costs.
An identical bill, with bipartisan support, is pending in the Senate.
It deserves quick approval.
Without this measure, the state will continue committing a double
injustice to these people – once for their wrongful imprisonment and
again for the failure to help them rebuild their lives once they're
set free. Two wrongs make the Timothy Cole Act the right thing to do.
Editorial: Exonerees deserve better compensation
'Dallas DNA' spotlights county's conviction integrity unit
April 27, 2009
By JENNIFER EMILY
The Dallas Morning News
jemily@dallasnews.com
Some Dallas County courtroom dramas are going prime time.
A new television show, Dallas DNA, focuses on the work of local
prosecutors to free the wrongly convicted and ensure convictions are
fair. It premieres Tuesday night on Investigation Discovery.
The program features men exonerated for crimes they did not commit,
the trial of a man linked to a rape and murder by DNA two decades
later and people who claim innocence but are shown through genetic
testing to have committed crimes. It also features Dallas County
District Attorney Craig Watkins' ambivalence about capital punishment
even as he participated in a death penalty case.
"I think a lot of people thought we were just concerned with the
innocence side," Watkins said. "But you get to see the integrity side
where we see how we're concerned with how our convictions are obtained."
Investigation Discovery will air six episodes of Dallas DNA on
consecutive Tuesdays. Depending on response to the show, more
episodes could be ordered.
The conviction integrity unit was formed after Watkins took office in
January 2007 in response to the county's DNA exonerations. So far 19
men have been exonerated. That's more than any other county in the
nation since 2001, when Texas began allowing post-conviction DNA
testing.
Christo Doyle, executive producer of Dallas DNA, said Investigation
Discovery was drawn to the "revolutionary" work of the conviction
integrity unit.
"What I like most about this series is that every case is very
unique," Doyle said. "The strength of the series is the variety."
Doyle said although he cannot pick a favorite episode, he is most
drawn to the first, called "Sweet Justice." That episode features
Johnnie Lindsey, who spent 26 years in prison for a sexual assault he
did not commit.
"After you see him exonerated after 26 years, you literally see him
coming to life," Doyle said.
This isn't the first time the criminal justice system in Dallas has
debuted on national television. The Dallas Police Department has
appeared in numerous episodes of A&E's The First 48. The popular
series documents detectives as they work to solve crimes.
Like the Dallas Police Department and The First 48, the district
attorney's office has veto power about what appears on Dallas DNA.
Patrick Waller, who was exonerated in July after nearly 16 years in
prison, said he is looking forward to seeing the episode that
features him. That show, which also features the death penalty case
that Watkins helped prosecute, airs May 26.
"I'm really curious. I saw the first episode," Waller said. "I can't
wait to see how it turns out."
'Dallas DNA' spotlights county's conviction integrity unit
New tests show man jailed in 1987 attack is innocent, defense attorney says
By ROMA KHANNA
HOUSTON CHRONICLE
April 24, 2009
HARRIS COUNTY EXONERATIONS
Three local men have been exonerated in cases in which new scrutiny
discredited work done at the Houston crime lab.
• Josiah Sutton: Released in 2003 after serving more than four years
for a sexual assault.
• George Rodriguez: Released in 2007 after serving 17 years for a
sexual assault and kidnapping.
• Ronald Taylor: Released in 2007 after serving 14 years for a sexual
assault.
Harris County records
A 53-year-old Houston man is innocent and should be released from
prison after serving 22 years for a rape and robbery, his lawyer said
Friday, because faulty forensics and false testimony from the Houston
crime lab secured his conviction.
A jury convicted Gary Alvin Richard in a 1987 attack on a nursing
student in a trial based largely on blood-typing evidence from the
Houston Police Department crime lab. But, prosecutors and the defense
attorney agree, new tests completed Friday show that an HPD analyst
misled jurors at Richard’s trial and failed to report evidence that
may have helped him.
Based on the new tests, both sides will ask a judge next week to
release Richard on bond while they sort out what happened in his case.
“This is a new chapter, among many, of mistakes that were made, of
sloppy work at the crime lab,” said Bob Wicoff, Richard’s lawyer.
“Most troubling are the results that were not passed on to people who
needed them.”
Richard’s case abounds with issues common to wrongful convictions.
Among them:
The victim identified him some seven months after the attack. HPD
crime lab analysts came to conflicting conclusions about the
evidence, but reported only the results favorable to the case.
Physical evidence collected in what is known as a “rape kit” has been
destroyed, a victim of poor evidence preservation practices, leaving
nothing for DNA testing now.
“The real crime is that another rape kit has been destroyed or
discarded,” Wicoff said. “The standards for preserving evidence were
less stringent in 1987, but that is no excuse.”
Without the rape kit, analysts at a California lab tested Richard’s
body fluids and drew conclusions that Wicoff said establish his
innocence.
“He could not have been the source of the semen at the crime scene,”
Wicoff said.
Prosecutors are less certain. They agree Richard should be released,
but do not yet know if he should be cleared.
“It is too early to say,” Assistant District Attorney Donna Hawkins
said.
Call for independent lab
District Attorney Pat Lykos used Richard’s case to again call for a
regional crime lab independent of a police agency.
“This is yet another reason why we need an independent crime lab,”
she said. “How many more reasons will it take?”
If exonerated, Richard would be the fourth Harris County man cleared
because of HPD’s shoddy crime lab work.
Richard’s case is receiving new scrutiny because of a massive review
of cases with problematic HPD blood-typing evidence. The review
started in October 2007, days after DNA evidence cleared Ronald
Taylor of sexual assault in a case where HPD analysts performed
faulty tests on body-fluid evidence, known as serology, a precursor
to DNA testing.
Wicoff is leading the review of some 160 cases that an independent
investigator identified as having problematic serology tests.
Richard’s case is the first in that group to prompt a claim of actual
innocence.
Student abducted in ‘87
Richard was convicted in the January 1987 attack of a 22-year-old
nursing student abducted at knifepoint from a laundromat. The man
forced her into her car, took her jewelry and drove her to an
abandoned apartment where he repeatedly raped her.
In the months that followed, the victim twice called police after
seeing a man she believed was the one who attacked her. Both times,
police did not respond.
In August 1987, seven months after the attack, the woman identified
Richard, whom she saw at a store, as her attacker. Police responded
that time, arresting him and charging him with aggravated sexual
assault, aggravated kidnapping and aggravated robbery.
It was the first time Richard was accused of a violent crime.
His criminal history includes a string of drug offenses, a burglary and
several theft convictions, most of them misdemeanors.
At his trial on the robbery charge, testimony from HPD crime lab
supervisor James Bolding played a crucial role. Bolding testified
about tests performed by another analyst, Christy Kim, the same
analyst who helped wrongfully convict Josiah Sutton, who was
exonerated in 2003.
‘Non-secretor’ issue
Neither Kim nor Bolding still works at the lab. Kim, who survived
attempts to have her fired, retired, and Bolding retired under the
threat of termination.
Bolding told jurors that Richard’s body fluids, such as saliva and
semen, give no indication of his blood type, a status known as “non-
secretor.” Only 20 percent of the population share this trait. He
also told jurors that semen from the rape kit showed no signs of the
suspect’s blood type — a coincidence that he said pointed to Richard.
The prosecutor, Rob Kepple, emphasized those conclusions.
“Perhaps the most important evidence, the things she couldn’t even
tell you about when he was arrested, the blood type,” Kepple told
jurors. “Right there. That 20 percent alone is good evidence.”
Jurors found Richard guilty and sentenced him to life in prison.
Prosecutors dropped the other charges after securing the sentence.
New tests conducted
Nearly 20 years later, an independent investigation, led by former
U.S. Justice Department official Michael Bromwich, uncovered results
entirely different from what Bolding told jurors at trial.
Those results, obtained from the lab’s notes, showed that semen from
the rape kit came from a non-secretor, but also showed that Richard
does display his blood type in his body fluids, meaning the semen was
not his.
“You can’t have it both ways,” Wicoff said. “So, we ordered tests.”
He received the results confirming Richard is a secretor on Friday.
“Therefore,” Wicoff said, “he is innocent.”
roma.khanna@chron.com
New tests show man jailed in 1987 attack is innocent
House votes to boost payouts for wrongly convicted
April 24, 2009
By JIM VERTUNO
Associated Press Writer
AUSTIN, Texas — Texas House lawmakers on Friday voted to boost the compensation the state pays to people who were wrongly sent to prison for crimes they didn't commit, and give them health insurance and pay for a college education.
The bill approved 136-1 raises the lump sum payout from $50,000 to $80,000 for every year spent in prison. It also provides a monthly annuity based on the same amount to give them a lifetime of income.
The measure also provides the exonerees with health insurance similar to what is provided to state lawmakers and pays for up to 120 semester hours at a college or university.
The bill now goes to the Senate, which is considering similar legislation.
DNA testing has exonerated 38, the most in the nation, according to the Innocence Project. Overall, Texas has paid about $9 million to 46 people who were wrongly convicted.
"This gives me new belief in the justice system," said Charles Chatman, who was 20 when he was convicted of a rape he did not commit and spent the next 26 years in prison before his release in January 2008.
"I'm overwhelmed, " he said.
Chatman and about a dozen exonerees and their family members watched from the gallery as the House passed the bill on a voice vote with no debate.
Wiley Fountain said the annuity, education and financial counseling would have greatly helped him when he was released in 2002.
Fountain collected $390,000 — minus federal taxes — after spending 15 years for a rape he did not commit. But he's now broke and living on the streets of Dallas, recycling aluminum cans for 35 cents a pound. Fountain, 52, said he had no idea how to handle his money and his freedom.
"You're not used to all that, and then all of a sudden you've got it. You help this person, you help that person, trying to be nice. Then it's all gone," Fountain said.
While Fountain has already collected his lump sum payment, he will be eligible for the annuity and other benefits in the bill.
Rep. Rafael Anchia, the Dallas Democrat who sponsored the bill, said exonerees get less help then adjusting to their new freedom than a typical parolee.
"These exonerees were pushed out the door, told 'Congratulations, we'll see you later," Anchia said. "This bill cannot make people whole. There's truly no amount of money that can make people whole."
The bill is named the "Tim Cole Act" in memory of a Fort Worth man who died in prison in 1999 while serving time for a rape he did not commit. DNA evidence later showed he was innocent and a state district judge formally exonerated Cole earlier this month.
"We're very happy for them," said Cole's brother, Cory Session. "We knew it couldn't do anything to help Tim, but we wanted it to do something for them."
The bill would allow Cole's family to collect a lump-sum payment because he died in prison. It also allows a lump sum payment equal to $25,000 for every year someone wrongfully convicted was required to register as a sex offender.
The bill does have some restrictions. If an exoneree takes the money, they give up their right to sue the state. And they will lose the money if they are convicted of another felony.
___
The wrongful conviction payments bill is HB1736.
___
House votes to boost payouts for wrongly convicted
04/18/2009
Living A Life Sentence
What Happens After The Innocent Are Exonerated For Crimes They Didn’t
Commit? For Many, It's Tougher Than A Prison Yard
Larry Peterson was found innocent and released more than three years
ago after being sentenced to life plus 20 years for the 1987 killing
and sexual assault of a young woman in New Jersey. He just recently
got his first job.
(CBS) In Chicago Friday, 55-year-old Alton Logan, who spent 26 years
in jail for a murder he did not commit, was exonerated. Over the
years who knows how many Americans have been wrongly convicted and
imprisoned - or even executed? And even when the mistake is realized,
as it was for Logan, what then? Kelly Cobiella reports our Sunday
Morning Cover Story:
At 51, Beverly Monroe was practically central casting for an
accomplished middle class mom:
"I had a great life, absolutely great life," she said. "I had a super
job, career. I had my own home. I was financially secure. My daughter
Katie had just finished law school, my youngest daughter Shannon was
a senior at William and Mary. My son was living with me and going to
college.
"Things could not have been better."
"And then this happens," Cobiella said.
"Yes."
In March of 1992 Monroe found her longtime companion Roger de la
Burde dead in his Virginia home, a bullet in his head, a pistol by
his side.
By all appearances, it was a suicide. But the police told Beverly
Monroe she was suspected of murder ….
"I had no experience, no thought of ever being accused of anything,"
she told Cobiella. "I mean, it's incomprehensible."
It was equally incomprehensible to Beverly's daughter. But, as a
young lawyer beginning a new job, Kate Monroe also knew that
"incomprehensible" did not make her mother's conviction impossible.
"I think I understood immediately when Mom was charged that she could
be convicted," Kate said. "And I understood when then she was
convicted that she might never come home."
It turns out she was half-right. In October of 1992, a jury believed
not her mother but the prosecutor. Beverly Monroe was sentenced to 22
years in prison.
"I was convicted on not only no evidence, but just sheer
speculation, " Beverly said.
Lawyer Kate Monroe quit her job and spent the next six years
searching for proof of her mother's innocence.
She found it in 1999. Prosecutors, she discovered, had withheld
evidence showing that the likely cause of Roger de la Burde's death
was suicide, not murder.
Seven years after her conviction, Beverly Monroe was released.
"The minute you're falsely accused, your life is gone," said Beverly.
"Your life as you knew it will never be the same."
She was 62 … and starting over.
"In that time, what do you think you lost?" Cobiella asked.
"You lose everything that you had in a normal life," Beverly said.
"For me it was house, job, career, income, separation from my family.
You lose health insurance, life insurance, all of the security that
you had."
Monroe tried to get it all back, starting with a job. And though she
had a good earlier job history, along with a masters degree in
chemistry, she also had a prison record.
"See, what I did, and also the most honest approach, is just to talk
to people and tell them what happened."
"Did that work?" Cobiella asked.
"No," Beverly laughed. "Everybody was extremely empathetic and
shocked and stunned. And didn't quite know what to do with that."
"But they didn't want to hire you."
"Exactly."
"I don't think any of these people realize what they're up against,"
said Peter Neufeld, co-director of the Innocence Project, the group
that - using DNA evidence - so far has helped free 235 people falsely
convicted of serious crimes, 17 on death row.
You lose everything that you had in a normal life. For me it was house, job, career, income, separation from my family. You lose health insurance, life insurance, all of the security that you had.
Beverly Monroe
"And the reason is that, when they first come out, not only is there the fame that comes with the media sort of capturing that moment of freedom, but also, they feel, 'Okay, now I've been vindicated. Now everything will come to me, finally, that's been kept from me for so many years,'" said Neufield.
"So there's an expectation. Unfortunately, reality is different than expectations, particularly for these wrongly convicted."
Just ask Larry Peterson. He was found innocent and released over three years ago after being sentenced to life plus 20 years for the 1987 killing and sexual assault of a young woman in New Jersey.
"Yes, I always knew I would get out," Peterson told Cobiella. "I just didn't know when. I didn't know how, you know, but that day came."
"And what was that day like?"
"Oh, man, it was joy. It was joy!"
He was 37 when he went to prison. He was 54 the day he walked out, freed because a DNA test had proved his innocence.
"Prison is capital H-e-l-l, it's hell," Peterson said.
We met Peterson in the parking lot of the truck driving school from which he'd just graduated. He was hoping that, after years of failure, it might lead to what he says would be his first job since being released from prison.
"When I went out to seek employment, any place that you go - and they do a criminal background check, when it come back and I have 'murder' upon my jacket, if you have 'rape' up on your jacket, you can't get a job."
"But you were exonerated," Cobiella said.
"What's that?" Peterson laughed. "What does that mean? It simply means that you are out of prison. It doesn't mean it erases your record."
"When they go to an employer and they bring the newspaper saying they were exonerated, the employer says, 'Well, that's wonderful. But, you know, you've got a 20-year black hole. And besides, even if you were innocent, you hung around some pretty mean characters for 20 years. I'm f------ sorry, you just don't have the skill set I need. I wish you well, but I can't hire you.' And, 'I can't give you this apartment.' And, 'I can't give you credit.'"
"Are you angry about all of this?" Cobiella asked.
"Mad as hell. Yes. Mad as hell, yes."
In the courtroom Thomas McGowan heard a judge express sympathy: "Words cannot say how sorry I am for the last 23 years."
Twenty-three years - that's how long McGowan was in prison for a burglary and rape he didn't commit.
"April 16th, that's a good day, good day," he said.
Cobiella met McGowan just thirteen days after his release.
"I'm still on this high," he said. "It's the best high. It is. New life. You know, I want to know how that feels to get a job. How it feels to get out there amongst the people. You know, just the whole different thing now, Life. It's a whole different life."
And while Thomas McGowan's life has changed … "It feels good to go down the street, I am not there at a place with barbed wire, and fences. I am free" … the world around him has changed even more.
Cobiella took him for a tour of a Circuit City store. "Ever been to a big store like this?" she asked.
"Not like this."
"Welcome to the world of electronics!"
She showed him large flat screen TVs, home theatre systems. "When I went in, could only see that at the movies," he said.
She showed him a laptop computer and its finger control. "That's the cursor. You've seen that?" she asked.
"No," he said.
"What is new to you?" she asked.
"Everything is new, all that. Everything is new, a whole new world."
But it turns out that "whole new world" can be tougher than a prison yard.
"I ain't got no choice but to say it will be beautiful," McGowan said.
For twelve full months now, Thomas McGowan has been searching for work. He's still unemployed.
Larry Peterson finally found work as a deliveryman.
As for Beverly Monroe, she's working, but as a low-paid administrative assistant with no benefits.
She says playing piano brings some peace. Still, she misses the lifestyle she lost:
"It would not be enough to survive on if I did not have still some savings, and Social Security," she said.
Her mother's ordeal has also changed her daughter, Kate. After Beverly was freed, Kate moved to Utah to head the Rocky Mountain Innocence Project.
"I've seen far worse cases," she told Cobiella. "I've seen cases where you know equally and wholly innocent people, police have manufactured physical evidence. You know forensic scientists have manufactured evidence. You know prosecutors have known that their witnesses were lying."
Last year, she watched Utah Governor Jon Huntsman sign a compensation law that she helped push through the state legislature. It gives exonerated prisoners about $35,000 for every year of false imprisonment, up to 15 years. Their criminal record is expunged.
But 25 states have no such program.
The other half provides a patchwork of compensation.
The laws in Virginia provide nothing for Beverly Monroe.
But Kate, who knows so well what can happen to innocent people wrongly convicted, still considers her mother lucky:
"The reality is, this is a triumphant story. We had a happy ending. And so if anybody were to say, you know, 'Your mom's doing really well-off, considering,' I would say, 'Absolutely.'"
"Well, I think most people believe 'it'll never be me,'" Cobiella said.
"Well, I thought that, too!" Beverly said. "And I can now tell anybody in this country, including the prosecution and anyone else, it can happen to anyone, regardless of your economic status, regardless of your education, regardless of your record. It can happen to you."
Living A Life Sentence
Confessed kidnapper says he's sorry innocent man did time for 1992 Dallas crime
April 15, 2009
By JENNIFER EMILY
The Dallas Morning News
jemily@dallasnews.com
Lemondo Simmons has admitted that he and a friend kidnapped a couple
from Dallas' West End years ago, and that they raped the woman and
terrorized another couple. But neither Simmons nor his friend, Byron
Bell, ever served time for the crime.
And because the statute of limitations has expired, they never will.
Instead, another man, Patrick Waller, was convicted in the case
despite proclaiming his innocence. He was in prison for nearly 16
years before prosecutors agreed last year that he was wrongly
convicted and he was set free in July.
Now Simmons, 36, sits behind bars – where he likely would have been
all along – accused of another violent crime and facing a possible
life sentence. He said in an interview this week from the Dallas
County Jail that he wishes Waller hadn't gone to prison for something
he did.
"I was sorry for what we had done," Simmons said in explaining why he
confessed last year to the 1992 crime. "I was young, but now I'm a
Christian and remorseful."
Waller, who is taking classes at the University of Texas at
Arlington, said Wednesday that he has never spoken to Simmons or Bell.
"That's the first time I've heard something from either of them about
me," Waller said when told of Simmons' apology. "I don't know what to
think about it."
Simmons said that he didn't know Waller wrongly went to prison until
prosecutors told him about it last year. DNA linked Bell to the
attack, and Bell implicated Simmons.
Had Waller, now 39, been granted post-conviction DNA testing when he
first asked (before Dallas County District Attorney Craig Watkins
took office in 2007), the information could have been used to deny
parole to Simmons and Bell. Simmons was paroled in 2004 for assault
of a public servant; Bell, whose whereabouts are unknown, was paroled
a few years later on a burglary conviction.
Watching the case
Waller said whether Simmons ends up in prison now shouldn't matter to
him because Simmons will never face a trial for the crime for which
Waller was wrongly convicted. But Waller said he wants to follow the
outcome of the case.
"I don't sit back and wish for him to go to jail," Waller said. "But
if you do wrong, you've got to be punished."
Waller said that if the jury convicts Simmons of his current charge,
aggravated assault with a deadly weapon, jurors should hear about the
1992 attacks during the punishment phase of the trial. Simmons and
Bell admitted they committed crimes to a Dallas County grand jury and
prosecutor Mike Ware, who investigated Waller's claims of innocence.
Ware declined to speak about Simmons' new case Wednesday.
In the old case, Simmons and Bell took the couple to an ATM and then
to an abandoned building in Oak Cliff that they called "the castle."
The woman was sexually assaulted there by both men, but DNA was only
found for Bell. Another couple then unexpectedly drove up to the
house, and one of the men forced that couple inside at gunpoint.
Wrong charge?
Simmons is currently jailed for assaulting his uncle, Melvin Griffin,
who Simmons said accused him of sleeping with his girlfriend. They
were roommates and constantly argued about it.
Simmons said his uncle attacked him and he defended himself. But
Simmons said he did not use a gun, only his hands.
Griffin is also in the Dallas County Jail on an aggravated assault
charge of his own, accused of choking his girlfriend. He did not
respond this week to a request for an interview. Griffin was
previously convicted of attempted murder in 1977 and forgery in 1986,
according to his indictment for aggravated assault.
Simmons said the current charge against him is wrong. He said that he
should have been charged with a misdemeanor family violence assault.
He said the district attorney's office doesn't know that Griffin is
related to him.
"It can't be regular aggravated assault because we're blood
relatives," Simmons said. "They don't know it's a domestic violence,
that we're family."
Confessed kidnapper says he's sorry innocent man did time
Reality show on DNA exoneration stirs ethics issues
By Kevin Johnson
USA TODAY
April 13, 2009
For the first time, reality TV will explore the growing use of DNA
evidence to exonerate the wrongly convicted, in a series that is
raising ethical questions before its first episode airs this month.
Dallas County District Attorney Craig Watkins, who has assisted in
the release of 10 wrongly convicted men since taking office in 2007,
says the goal of Dallas DNA, scheduled for launch on Investigation
Discovery on cable April 28, is to "make justice better by showing
the good, the bad and the ugly."
Some legal analysts say the series could exploit the suffering of
victims — including the wrongly convicted — in the name of
entertainment.
"I'd find that very troubling," says Rob Warden, executive director
of Northwestern University's Center on Wrongful Convictions. "I
wholeheartedly favor calling attention to the innocence movement, and
I'm delighted with what Craig Watkins has done while in office, but
there are ethical obstacles that have to be negotiated very carefully."
Jeff Blackburn, chief counsel to the Innocence Project of Texas, says
the show is a vehicle to boost Watkins' political career.
Watkins denies that the series poses ethical risks or that he was
motivated by politics. He says the public needs to see how the
process works. "At the end of the day, it will build better trust,"
he says.
Investigation Discovery, part of Discovery Communications, focused on
Texas because Dallas County has had more convicts exonerated after
DNA testing than any county in the nation.
Since 2001, 19 people there have been exonerated based on DNA
evidence, including some who served more than two decades in prison.
Nationally, there have been 235 post-conviction DNA exonerations
since 1989, according to the Innocence Project, a New York City-based
group that uses DNA evidence to free the wrongly convicted.
"When you are talking about a person's personal freedom, there are no
higher stakes," says Clark Bunting, president of Discovery's emerging
networks. "This is shining a light in a dark corner."
Bunting and Christo Doyle, Dallas DNA's executive producer, say the
series avoided ethical problems by letting Watkins view "rough cuts"
of the six-part series in advance. If he felt the content breached
attorney-client privilege, jeopardized pending cases or violated
other legal rules, that material was cut, Bunting says.
Watkins says cameras and network employees were barred from meetings
in which the district attorney and staffers decide whether to pursue
the death penalty. Watkins has been reviewing about 40 death penalty
convictions.
The first episode features the September exoneration of Johnnie
Lindsey, 56, who was convicted in a 1981 rape case and spent 26 years
in prison.
Blackburn, whose group had been approached to participate in a
similar series by an undisclosed network, says he was concerned that
his group would "have to stage things" to appeal to an audience. "We
couldn't produce what they wanted," he says.
Watkins says the criticism may reflect his colleagues' disappointment
at failing to win their own TV deals. "Obviously," he says, "we're
doing good work here, and I'm benefiting politically from it."
Find this article at:
Reality show on DNA exoneration stirs ethics issues
Exonerated call for reform through a bill revamping ID system, DNA testing, appeals
April 1, 2009
The Associated Press
AUSTIN – Some are sad. Some were angry. All are innocent.
More than a dozen men who spent more than 200 years in prison for
crimes they did not commit asked Texas lawmakers Tuesday to pass
bills to improve eyewitness testimony, expand post-conviction appeals
and DNA testing, and pay more compensation to the wrongly convicted.
"I'm still not completely free. I'll never be completely free," said
Billy James Smith, who spent 20 years in prison on a charge of
aggravated sexual assault but was exonerated by DNA testing in 2006.
"There was no joy in my release," Smith said. "I knew for 20 years I
didn't do it. There's something inside of me I lost."
DNA evidence has freed 36 wrongly convicted people in Texas, the most
in the nation, according to the Innocence Project, which works on DNA
exoneration cases. Another exonerated person, Timothy Cole, who was
cleared in February, died in prison in 1999.
Many of those exonerated have a common thread: a false eyewitness
identification.
That's what happened to Johnnie Earl Lindsey, who was picked out of a
photo lineup by the victim. The woman, who had been attacked a year
earlier, described her assailant as shirtless. In the six-photo
lineup police mailed to her, Lindsey was one of only two men not
wearing shirts.
She also identified him at trial even though he could produce time
cards that showed he was at work when the crime occurred. Lindsey
served 20 years of a life sentence before he was finally cleared.
"It was the only thing that put me in prison," Lindsey said of the
testimony.
The eyewitness identification bill by Sen. Rodney Ellis, D-Houston,
requires lineups to be conducted under industry "best practices."
Those include having lineups conducted by someone who doesn't know
which person is the suspect and getting a statement from the witness
about the confidence in the selection. All individuals in the lineup
would have to fit the description of the suspect.
The bill passed the Senate Criminal Justice Committee 5-0. At least
eight other states require some of the same or similar standards, and
some are already being used by local police and sheriffs.
The exonerees also say it's critical that Texas boost the
compensation and care for the wrongly convicted.
A bill filed by Rep. Rafael Anchía, D-Dallas, would increase lump sum
compensation from $50,000 to $80,000 for each year of incarceration.
It requires the state to pay some of the compensation in annuities,
ensuring an income. It also would give them the same health insurance
given to state employees, a crucial benefit for those who often
emerge from prison with severe health problems but no way to get
medical coverage.
More hearings were to be held today.
The Associated Press
Exonerated call for reform
Texas Senate panel to weigh changes in eyewitness identification procedures
March 31, 2009
By STEVE McGONIGLE
The Dallas Morning News
smcgonigle@dallasnews.com
Despite more than 30 wrongful convictions in Texas involving faulty
eyewitness identifications, police chiefs and prosecutors have sought
to block legislative attempts to change their outdated procedures.
Law enforcement, fearing prosecution will be hindered, wants
legislation limited to more training for police on identification
issues. Those seeking change argue that law enforcement has ignored
reform for decades and cannot be trusted to act on its own.
All this has occurred behind the scenes until today, when the debate
goes public in a Senate Criminal Justice Committee hearing in Austin.
Key law enforcement interests and reform advocates have reached a
general agreement on legislation to require police agencies in Texas
to adopt new written policies on eyewitness identifications, said
Edwin Colfax, state director of The Justice Project, a national
reform group.
The agreement stops short of dictating how police should conduct
eyewitness identifications. But, if enacted, it would make Texas one
of a handful of reform states.
The effort got a boost from a series of high-profile wrongful
convictions exposed by DNA testing. Led by Dallas County, Texas has
had more DNA exonerations than any other state over the past eight
years.
Faulty eyewitness identifications have been the leading cause of
wrongful convictions. Eighteen of 19 exonerations in Dallas County
involved a bad eyewitness identification, an investigation by The
Dallas Morning News found last year.
The exonerations have not convinced all police and prosecutors that
sweeping changes are needed. They don't want lawmakers to mandate
policies they believe are unworkable, and they fear losing court
evidence because of honest police mistakes or technical violations.
But leading law enforcement figures have agreed that eyewitness
identifications could be improved.
Those pushing for reform, including defense lawyers and public
interest groups, want language stiff enough to compel mandatory
identification procedures.
'Pathetic response'
Sen. Rodney Ellis, D-Houston, dropped his original version of the
bill that would have ordered police agencies to follow specific
lineup methods or face exclusion from trial of identification
evidence. Gov. Rick Perry vowed to veto any bill that applied laws on
evidence exclusion to eyewitness identifications, said Keith Hampton,
legislative director of the Texas Criminal Defense Lawyers.
The compromise legislation requires police agencies to have written
policies on identifications that reflect the latest scientific
research. But it specifies that the judicial rule governing what is
admissible evidence does not apply to eyewitness identifications.
"I'm more optimistic [about reform legislation becoming law] than
I've been in my 19 years in the Senate working on these issues,"
Ellis said in an interview last week.
Hampton said prosecutors had gutted the aim of the original bill.
"This is a pathetic response," he said. "It's a bill that does nothing."
Prosecutors do not want real reform, Hampton said, and are conducting
a "whisper campaign" to prevent Ellis' bill from being debated on the
Senate floor even if, as expected, it clears committee.
Colfax agreed that the original bill was softened by opposition. But
he said it would establish a framework for future meaningful change.
"It's not as if the defense lawyers are not coming off better than
they were before," he said.
The compromise bill calls for the Law Enforcement Institute at Sam
Houston State University to draft a model policy on eyewitness
identifications within six months of the law taking effect in
September. Police agencies would have a year to adopt the policy.
Instead of mandating that police use an identification procedure
favored by reformers, known as a double-blind, the compromise would
have the model policy be based on the latest research of best
practices. Any police agency that did not adopt the model policy
could have its identifications subject to court challenges.
Double-blind procedures require that the investigator who conducts a
lineup not be involved in the case to reduce the risk of police bias
that might influence witnesses.
While police agencies in a few states have adopted the practice –
some under orders from lawmakers or state officials – its
effectiveness is debated by law enforcement authorities nationwide.
No written policies
Police agencies have been slow to make changes in their eyewitness
procedures, despite mounting evidence of their role in wrongful
convictions. Most police departments in Texas do not have written
policies, The Justice Project said it found.
The Texas Police Chiefs Association suggested that eyewitness
procedures could best be improved by legislative funding for officer
training.
James McLaughlin, the association's executive director, said police
did not want to be ordered to use an identification policy that might
prove ineffective.
"Our concern is that if we legislate something in, and that turns out
not to be the best way, we're two years away from fixing anything,"
he said.
John Bradley, the Williamson County district attorney who was
involved in the negotiations, said he did not believe the state's
high exoneration rate was sufficient reason to outlaw procedures that
had worked well for decades.
"Most of the exonerations that have occurred were the result of
practices that were in place 20 and 30 years ago, practices that have
largely been, I hope, abandoned," Bradley said.
Texas Senate panel to weigh changes in eyewitness identification procedures
Bill would improve services to Texas DNA exonerees
By JEFF CARLTON
Associated Press Writer © 2009 The Associated Press
March 30, 2009
DALLAS — Wiley Fountain spent 15 years in a jail cell for a rape he
did not commit.
Now the wrongly convicted man is serving another kind of time. He's
free, but he's homeless.
After squandering nearly $390,000 he received from the state as
compensation for his time behind bars, Fountain, 52, spends his days
collecting aluminum cans for 35 cents a pound. He spends his nights
in a tattered sleeping bag on the asphalt behind a liquor store in a
run-down South Dallas neighborhood.
To other exonerees and their lawyers, Fountain is the worst-case
example of the need for reforms in how the wrongly convicted are
compensated. They are asking the Texas Legislature to increase
compensation and to expand its offering of social services to give
newly freed men a better shot at a second chance.
"First they lock you up and throw away the key, and when they turn
you loose, they unlock the door and act like they've never known
you," said Billy Smith, a Dallas exoneree who served about 20 years
of a life sentence on a wrongful conviction of aggravated sexual
assault. "I had no money, no place to stay, no medical assistance, no
anything."
DNA evidence has freed 36 wrongly convicted people in Texas,
including 19 in Dallas County. That's the most in the nation,
according to the Innocence Project, which works on DNA exoneration
cases. But unlike parolees, exonerees get almost no help from the
state when they first re-enter society.
That could change this year.
State Rep. Rafael Anchia, D-Dallas, filed a bill to increase lump sum
compensation from $50,000 to $80,000 for each year of incarceration.
The bill also would require the state to pay some of the compensation
in annuities, assuring exonerees a lifetime income. The payments
would be retroactive to exonerees who already received lump sum
payments, including Fountain, and would cease if there was a
subsequent felony conviction.
"I don't imagine any of us locked up more than 20 years have a lot of
experience managing personal finances," said Charles Chatman, who was
exonerated in January 2008 after nearly 27 years.
The bill also would provide exonerees the same health insurance given
to state employees, a crucial benefit for those who often emerge from
prison with severe health problems but no way to get medical coverage.
Smith's lawyers attempted to sign him up for Social Security
disability, which would have made him eligible for Medicare coverage.
But the government rejected Smith's application, saying he hadn't
paid enough into the system to qualify for benefits.
"It's critically important," Innocence Project policy analyst Rebecca
Brown said of services for exonerees. "The needs people face upon
release are profound. They require everything from housing to
clothing to transportation to medical attention."
The outcomes for exonerees are mixed. Anthony Robinson, an exoneree
from Houston, became a lawyer. Larry Fuller, who received $1 million
in state compensation, "is doing pretty well," said Clay Graham, a
Dallas-area attorney who works with exonerees. James Giles, who spent
10 years in prison on a wrongful rape conviction, lives with his wife
in Lufkin, where they run accounting and bail bonding businesses.
Those are the success stories. At the opposite end there is Fountain
and other exonerees who find themselves in trying circumstances.
Keith Turner, wrongly convicted of a 1982 aggravated sexual assault,
served four years of a 20-year sentence and now lives in a boarding
house, Graham said.
Eugene Henton's situation was more complicated. He pleaded guilty to
a 1984 sexual assault he did not commit to avoid a lengthy sentence.
After serving 18 months in prison, he was arrested again on unrelated
drug possession and assault charges and this time received a 40-year
sentence, based on his prior violent criminal history. After DNA
testing proved he was innocent of the original sexual assault, he was
released on time served.
Henton said he spent years searching for a job, toting news clippings
and court rulings to prove to employers that he was wrongly
convicted. Until recently, no one would hire him.
"I'm shunned," Henton said. "They get a background check, and they
say, `I can't hire you because of this rape case.'"
Of the 25 states that provide some form of compensation to exonerees,
Vermont's program is considered the closest thing to a model, Brown
said. It offers up to $60,000 for each year of incarceration, 10
years of state health coverage and repayment for lost wages and
attorney's fees.
Vermont, however, has had no DNA exonerations, according to Innocence
Project figures. Texas' nation-leading number of exonerees was fueled
by a stream of bad convictions in Dallas, which alone has had
exonerations than all but two states.
Exoneration hearings have become common events in Dallas courtrooms
in recent years. They've also highlighted the lack of social services
available to the wrongly convicted.
Such services are commonplace for convicts paroled out of prison.
Parolees receive $50 and a bus ticket to anywhere in Texas upon
release, and another $50 when they meet up with their parole
officers, said Jason Clark, a spokesman for the Texas Department of
Criminal Justice.
There are re-entry centers in major cities that offer employment
help, counseling and substance abuse treatment, and there are halfway
houses for parolees who need additional supervision.
"We're not releasing people so they can be homeless," Clark said.
"That doesn't happen."
But that's what routinely happens to exonerees, who are released
suddenly and with no place to go.
"It's really terrible," Smith said. "People who get out on parole
have a better chance of getting started on the right foot than a
person who has been exonerated."
An ad hoc support system has sprung up in the absence of services
from the state. Fellow exonerees have become fixtures at hearings for
the newly freed.
They offer whatever help they can. Chatman has organized clothing
drives and other exonerees have chipped in for prepaid cell phones.
Giles presents a $100 bill to newly freed men, a nod to the money
parolees receive.
Outside help tends to come from faith groups. Jaimie Page, a
professor at the University of Texas-Arlington, has started a
counseling program that earlier this month attracted several
ministers and a Catholic church volunteer. Paige said faith-based
groups have helped out, but so far there has been no assistance from
government agencies. Funding for her program runs out in October.
Also at the recent counseling session were 11 exonerees, 10 of them
from the Dallas area and an 11th from Houston who has since become a
lawyer. It had the feel of an Alcoholic Anonymous meeting, with
exonerees introducing themselves and briefly telling their stories:
"My name is Patrick Waller, and I was wrongly convicted of aggravated
robbery and aggravated kidnapping. I spent 16 years, two months and
24 days in prison before I was exonerated."
On the day of the meeting, Fountain was about five miles away,
outside the liquor store where he spends most of his time. On cold
days, he finds shelter in a nearby vacant home.
"I'd do it a whole lot different," said Fountain, thinking about
getting another chance. "I've got to live life like I'm supposed to.
I can't blame nobody but me."
Bill would improve services to Texas DNA exonerees
To Be Equal - DNA Testing Should Be a Right!
By Marc H. Morial
NNPA Columnist
Originally posted 3/25/2009
(NNPA) - Imagine being convicted of a crime you didn't commit and languishing in prison for 11 years until new DNA evidence proved your innocence.
That's just what happened to Ronald Cotton whose story was told on CBS' 60 Minutes recently. Cotton's accuser, Jennifer Thompson, was absolutely certain she correctly identified the man who broke into her Burlington , North Carolina apartment and raped her on the night of July 28, 1984.
But she was wrong. And her mistake produced more than one other victim of that brutal crime – Ronald Cotton, an innocent man who was sentenced to life in prison, and several other women who were raped by the real criminal who remained free.
What finally turned the tide in Cotton's case was the science of DNA testing which Cotton's lawyer was allowed to use to prove his client's innocence.
The real crime is that hundreds of wrongly convicted people are now behind bars, not only because of eyewitness flaws, but also because of the refusal by a small number of states to allow DNA evidence to be used to prove their innocence. According to the 60 Minutes report, there have been 233 people exonerated by DNA evidence across the country. More than 75 percent of them were convicted because of mistaken identity.
Ronald Cotton was one of the lucky ones. Timothy Cole of Lubbock , Texas was not so fortunate. He was sentenced to 25 years in 1985 after being wrongly identified by a rape victim. In 1999, Cole died in prison before DNA testing and the jailhouse confession of another inmate later cleared his name.
According to the Innocence Project, a national non-profit legal clinic dedicated to exonerating innocent people through DNA testing, there are thousands of prisoners desperate to have their cases evaluated.
Some of them are on death row. Most of them are ''poor, forgotten and have used up all legal avenues for relief. The hope they have is that biological evidence from their cases still exists and can be subjected to DNA testing.''
Dallas County District Attorney, Craig Watson, the first African American District Attorney in Texas , has made this issue a centerpiece of his work.
He believes the DA's job is not only about prosecuting the guilty, it is also about protecting the innocent. That's why, in 2007 he established the Conviction Integrity Unit, the first division of its kind in the country dedicated to overturning wrongful convictions and securing the release of men and women who have been wrongfully imprisoned in Texas.
His efforts have helped secure the release of more than 19 wrongfully convicted prisoners thus far. Unfortunately, six states still deny prisoners access to DNA testing: Alaska, Alabama , Massachusetts , Oklahoma, Mississippi and South Dakota.
The Supreme Court is now deliberating an Alaska case that could grant all prisoners that right. We believe that's what the Court should do.
In a nation that prides itself on the rule of law, there is no good reason to deny prisoners the right to DNA testing if it can prove their innocence, identify the guilty and prevent a tragic miscarriage of justice.
Marc H. Morial is president and CEO of the National Urban League.
To Be Equal - DNA Testing Should Be a Right!
Study: Witness errors lead juries astray
DNA undoes the mistakes on the stand during trials
By ROMA KHANNA
roma.khanna@chron.com
HOUSTON CHRONICLE
March 26, 2009
WRONGFULLY CONVICTED:
Six men whose cases were investigated by Houston police were
wrongfully convicted on bad eyewitness identification.
• Kevin Byrd: served 12 years for rape.
• Ricardo Rachell: • served five years for sexual assault of a child.
• Anthony Robinson: • served 10 years for rape.
• George Rodriguez: • served 17 years for rape and kidnapping.
• Josiah Sutton: • served five years for rape.
• Ronald Taylor: served 12 years for rape.
Most wrongful convictions in Texas stem from mistaken eyewitness
identifications, errors that experts say could have been avoided — or
even eliminated — with more sophisticated lineup techniques,
according to a report released Wednesday.
Since 1994, DNA evidence has exonerated 39 men convicted in Texas of
crimes ranging from kidnapping to murder, according to a report
Wednesday by the Justice Project, a nonprofit focused on criminal
justice reform.
Six of the cases occurred in Harris County. Each was investigated by
the Houston Police Department. Each was built on flawed eyewitness
evidence.
“Eyewitness identification is the leading cause of wrongful
convictions in Texas and across the country,” said Edwin Colfax,
Texas director of the Justice Project, which analyzed the factors
that contributed to the wrongful convictions.
“But of law enforcement agencies across Texas, only a tiny fraction
have any written policies for these critical investigative procedures
and only a tiny fraction have implemented best practices,” he said.
In many of these cases, not only was eyewitness testimony wrong, but
DNA evidence was faulty or absent altogether. Three of the Houston
cases contained flawed forensics from the HPD crime lab.
Houston Police Chief Harold Hurtt has said he plans to issue written
instructions on lineup procedures, but for now, HPD has none.
“Officers are taught standard operating procedures in the academy and
from there (procedures) are managed and done by various divisions
within the department,” said Craig Ferrell, HPD general counsel. “But
we do not have a written general order.”
Lawmakers weigh reform
The Justice Project report calls on law enforcement agencies to adopt
several procedures, such as documenting the entire lineup process and
having an uninvolved or “blind” officer conduct a lineup. It also
recommends that witnesses see suspects’ photos one after another
rather than at the same time in an array. The report’s release comes
as lawmakers weigh a host of legislation aimed at reforming the
criminal justice system including:
• Requiring all law enforcement agencies to adopt written policies
for conducting eyewitness identification.
• Requiring officers to record interrogations.
• Creating a commission to examine the errors that contribute to
wrongful conviction.
• Requiring corroboration for evidence offered by informants.
The bills face opposition from some police and prosecutors, including
some who say there is no need to mandate police procedures.
Hurtt, however, has said he would support some of the legislation, if
he agrees with the prescribed practices.
“The chief is supportive of the concept of developing best
practices,” Ferrell said. “The biggest point of continued discussion
is what the best practice is, whether you use sequential or
simultaneous arrays or blind lineups.”
Mistaken eyewitnesses have played a role in all of the Houston DNA
exonerations since 1994, including the most recent of Ricardo
Rachell, who was released from prison in December after tests proved
he was not guilty of the 2002 sexual assault of an 8-year-old boy.
The victim’s identification of Rachell, who has a severe facial
deformity, served as the primary evidence at trial.
“These mistakes could be prevented with better practices,” Sen.
Rodney Ellis, D-Houston, said in Austin. “Only 12 percent of law
enforcement agencies in Texas even have written procedures and I
think that is simply unacceptable.”
New Report Analyzes
Texas Wrongful Convictions Exposed by DNA
March 25, 2009
It is difficult to fathom that thirty-nine innocent Texans have spent
more than five hundred years in prison for crimes they did not
commit.
This alarming figure is detailed in a new report issued this
week by The Justice Project: Convicting the Innocent: Texas Justice Derailed.
Unfortunately, five hundred years does not reflect the actual amount
of time all innocent people have spent wrongfully imprisoned in Texas
because the report only focuses on individuals who were exonerated by
DNA evidence, which is available in only a fraction of cases. Each
DNA exoneration exposes flaws in our criminal justice system that
lead to unreliable evidence and inaccurate verdicts in our courts.
It is time Texas and the rest of the country confront these flaws and
learn from these costly mistakes.
The costs of wrongful convictions are profound, and begin with the
devastation suffered by the wrongfully convicted person and family.
Everyone involved in these cases is affected, from jurors who are
presented with faulty evidence, to the crime victims who are denied
the justice of seeing the real perpetrator convicted. Further, every
wrongful conviction undermines public safety. When the wrong person
is prosecuted and convicted, the actual perpetrator remains free to
commit more crimes--crimes that could have been prevented.
While some error is inevitable in a system run by human beings, many
of the mistakes leading to wrongful convictions can be prevented with
the right safeguards in place. An analysis of all wrongful
convictions in Texas reveals distinct patterns in the types of
mistakes that lead to convicting the innocent. As a result, these
patterns guide a clear path toward reforms that will improve the
reliability of evidence in our courts.
The overwhelming majority of wrongful convictions in Texas, as is the
case in the rest of the country, are a result of eyewitness
misidentification. Decades of research on eyewitness memory reveals
that changes in the way we present photo and live lineups can reduce
the risk of error. Despite the fact that more accurate procedures
have been endorsed by the U.S. Department of Justice and other
organizations for years, most police departments do not follow them.
In fact, the vast majority of police departments in Texas do not have
any written procedures for conducting lineups. By requiring police to
follow written policies that include proven strategies for reducing
error, Texas can improve the reliability of eyewitness evidence and
significantly reduce the risk that a false identification will lead
to another wrongful conviction.
Eyewitness reform is a small part of the broader reform needed to
effectively prevent wrongful convictions in Texas.
Texas is long overdue in requiring electronic recording of custodial interrogations to false confessions, which are a documented reality.
Unreliable testimony from informants must be subjected to greater scrutiny and
more transparency. Forensic oversight should be improved and its
standards strengthened. Until these reforms are implemented, Texas
will continue to make preventable mistakes in criminal trials, and
wrongful convictions will continue to occur.
Each wrongful conviction undermines public confidence in our criminal
justice system. It is time the state of Texas to takes action to
restore public confidence and ensure that no more innocent people are
convicted of crimes they did not commit. More than five hundred years
of time spent for wrongful convictions is more than enough of a
reason for Texas to take action.
John F. Terzano is President of The Justice Project, a nonpartisan
organization that works to increase fairness and accuracy in the
criminal justice system.
Texas Wrongful Convictions Exposed by DNA
Editorial: Watkins' DNA legislation offers overdue justice
March 17, 2009
The DNA stories that make headlines usually have happy endings –
exonerations that allow the prison door to swing open and an innocent
man to go free.
But what happens when a DNA match leaves everyone at loose ends? DNA
evidence can incriminate, as well as exonerate, and for some victims,
getting answers about their attacker only brings frustration.
Often, the statute of limitations has expired. And even though a DNA
match has been made, prosecution isn't an option. For victims in
these cases, evidence identifying their attacker only serves to
pinpoint the person who got away with a crime.
But needed legislation, championed by Dallas County District Attorney
Craig Watkins, would change that and give many victims some degree of
closure. When a DNA test links someone to a crime, that information
would be added to the suspect's criminal history – even in decades-
old cases.
The bill, filed by Sen. John Carona and Rep. Allen Vaught, would
provide many rape victims with some assurance that their attackers
will be held accountable. Suspects still won't be prosecuted if the
statute of limitations has expired, but noting the DNA match in
criminal histories could affect sentences for other offenses, as well
as parole and bail decisions.
Dallas police are reopening a raft of unsolved rape cases, raising
tough questions about how to proceed with suspects who often can't be
prosecuted. Watkins had hoped to go even further; he and police had
discussed the possibility of compelling suspects to register as sex
offenders.
But the bill as crafted strikes a fair compromise and appears to be
less vulnerable in a legal challenge.
This common-sense legislation simply requires a record of test
results that link a suspect to a crime. Victims would get a measure
of closure, and attackers would see their names attached to the
brutal crimes they committed.
Watkins has predicted easy passage for this bill in the Legislature.
Let's hope he's right.
Watkins' DNA legislation offers overdue justice
Bill co-authored by Duncan would establish exoneration process
By Elliott Blackburn
AVALANCHE-JOURNAL
March 17, 2009
Legislation co-authored by Lubbock's state senator would clear the
path to exoneration for cases like an innocent Texas Tech student who
died in prison serving time on a wrongful conviction.
Sens. Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston, filed
legislation late last week detailing how to clear Timothy Brian
Cole's name and handle any other cases of posthumous exoneration.
JURISPRUDENCE
Have the Eyes Had It?
Is our eyewitness identification system sending innocents to jail?
By Dahlia Lithwick
Posted March 14, 2009
We are able to find everything in our memory, which is like a
dispensary or chemical laboratory in which chance steers our hand
sometimes to a soothing drug and sometimes to a dangerous poison.
—Marcel Proust
Describe the last person who served you a coffee. What if I helped
refresh your memory? Showed you some photos of local baristas? Pulled
together a helpful lineup? Cheered exuberantly when you picked the
"right" one? Now imagine that instead of identifying the person who
made your venti latte last week, we had just worked together to nail
a robber or a rapist. Imagine how good we would feel. Now imagine
what would happen if we were wrong.
Last month, a Texas judge cleared Timothy Cole of the aggravated
sexual assault conviction that sent him to prison in 1986. Although
his victim positively identified him three times—twice in police
lineups and again at trial—Cole was ultimately exonerated by DNA
testing. The real rapist, Jerry Wayne Johnson, had been confessing to
the crime since 1995. Unfortunately, Cole died in prison in 1999,
long before his name was cleared.
Our eyes deceive us. Social scientists have insisted for decades that
our eyewitness identification process is unreliable at best and can
be the cause of grievous injustice. A study published last month by
Gary Wells and Deah Quinlivan in Law and Human Behavior, the journal
of the American Psychology-Law Society, reveals just how often those
injustices occur: Of the more than 230 people in the United States
who were wrongfully convicted and later exonerated by DNA evidence,
approximately 77 percent involved cases of mistaken eyewitness
identification, more than any other single factor.
Wells has been studying mistaken identifications for decades, and his
objection to the eyewitness identification system is not that people
make mistakes. In an interview he explains that eyewitness evidence
is important but should be treated—like blood, fingerprints, and
fiber evidence—as trace evidence, subject to contamination,
deterioration, and corruption.
Our current criminal justice system—blessed by a 30-year-old Supreme Court precedent—allows juries to hear eyewitness identification evidence shaped by suggestive police procedures. In a 1977 case, Manson v. Braithwaite, the Supreme Court held that evidence that was a product of suggestive identification procedures need not be excluded if the identification was
nevertheless deemed "reliable." Five criteria for determining whether
that identification could be reliable were laid out—including how
much opportunity the witness had to view the perpetrator and how
certain she was of her identification. In the intervening years,
social scientists have called into question much of the science
underlying these five factors. Today we know, for instance, that you
can have a good long look, be certain you have the right guy, and
also be wrong. But Manson is still considered good law.
Jennifer Thompson was 22 the night she was raped in 1984. Throughout
the ordeal, she scrupulously studied her attacker, determined to
memorize every detail of his face and voice so that, if she survived,
she could help the police catch him. Thompson soon identified Ronald
Cotton in a photo lineup. When she—after some hesitation—again picked
Cotton out of a physical lineup a few days later, a detective told
her she'd picked the same person in the photo lineup. As Thompson
told Leslie Stahl on CBS last weekend, that assurance led her to
think: "Bingo. I did it right. I did it right."
But in this case Thompson got it wrong, although Cotton served 10 and
a half years before DNA evidence exonerated him and decisively
implicated another man, Bobby Poole. The curious part of the story is
that despite Thompson's determination to memorize every detail, when
she first saw Bobby Poole in court she was certain she had never seen
him before. Indeed, according to Wells and Quinlivan, "Even after DNA
had exonerated Cotton and Thompson herself had accepted the fact that
Poole was her attacker, she had no memory of Poole's face and, when
thinking back to the attack she says, 'I still see Ronald Cotton.'"
How did our eyewitness identification system manage to paint a
detailed picture of the wrong face in Jennifer Thompson's mind while
somehow completely erasing the right one? Wells and Quinlivan's paper
suggests a host of tricks the mind can play, ranging from
incorporating innocent "feedback" from police investigators, to
increasing certainty in one's shaky memories that become reinforced
over time.
Add to that Thompson's determination to regain control over her life,
and her need to believe that the justice system was just, and it
would have been doubly hard for her to look at a police lineup that,
as it happened, did not include an image of the real rapist and walk
away. To hear Thompson and other victims tell it, being part of a
system that identified and ultimately convicted the wrong man became
another form of victimization, and for that reason alone the system
needs to be reformed.
The problems with the eyewitness identification system cannot be laid
at the feet of crime victims any more than they can be blamed on
police investigators. Wells' argument for reforming our eyewitness
identification system is that the incentive for the police to subtly
nudge our memories goes not only uncorrected by the justice system,
but sometimes is rewarded by it. Wells wants the Supreme Court to
revisit the scientific assumptions underpinning Manson v. Brathwaite,
which allows such identifications to come into a courtroom as long as
the identification is "reliable."
Whether or not the John Roberts court wishes to take up the issue of
innocent prisoners—there is, for instance, a case now percolating
through the New Jersey courts testing the scientific premises of
Manson—a few states and cities have used innocent exoneration
scandals to rethink their eyewitness identification practices in ways
that would begin to restore the credibility of such evidence.
Proposed changes include showing victims photos sequentially,
explaining to the victim that the perpetrator may not be included in
the lineup, and ensuring that whoever conducts the lineup has no
knowledge of which person is the actual suspect.
This is not an issue that tracks the usual pro-prosecution, pro-
defense divide. Mostly, police departments don't change their
eyewitness identification procedures simply because there is no big
loud constituency demanding that guys in lineups be treated more
fairly. But some of the most zealous reformers of the current
eyewitness identification process are lifelong conservatives who
recognize that the credibility of the whole justice system is on the
line each time an innocent man goes to jail. That's because when that
happens, a guilty man often walks free.
A version of this article appears in this week's issue of Newsweek.
Dahlia Lithwick is a Slate senior editor.
Article URL: Have the Eyes Had It?
Mar. 14, 2009
Bill would up penalty on prosecutors who suppress evidence
BY BILL HANNA
billhanna@star-telegram.com
In response to the exoneration of wrongfully convicted inmates,
lawmakers filed legislation this week to crack down on prosecutors
who withhold vital information from defendants.
State Sen. Royce West, D-Dallas, filed the bill, SB 1608, after 19
Dallas County men — and at least 35 others statewide — were found to
have been wrongfully imprisoned, sometimes after improper conduct by
prosecutors.
The bill would lift the statute of limitations on official-oppression
cases and raise the penalty from a misdemeanor to a state jail felony
if the withheld evidence was favorable to the defendant.
Kelvin Bass, legislative aide for West, said the bill would allow for
review years after wrongful conviction.
But Terri Moore, first assistant district attorney for Dallas County,
said the bill would expose prosecutors to punishment even if police
had suppressed evidence and prosecutors didn’t know about it.
"Now I’m committing a felony because I didn’t turn something over to
the defense that I didn’t even know existed?" Moore said. "I got a
problem with that."
State Rep. Elliott Naishtat, D-Austin, who sponsored the House
version of the bill, HB 3351, said those concerns will likely be
addressed in later versions. But Naishtat said the legislation is
needed for prosecutors who deliberately suppress evidence.
"We need to make it clear to all prosecutors that suppression of
evidence favorable to a defendant is unacceptable and illegal."
The bill is one of many being filed this session dealing with
wrongful prosecutions.
Last month, Timothy Cole of Fort Worth was posthumously exonerated of
his 1986 conviction for the sexual assault of a Texas Tech University
student. He died in 1999 while serving a 25-year sentence.
One of the lessons of the Dallas County cases, Moore said, is that
DNA evidence has shown that law enforcement relied too heavily on
witnesses’ accounts and the way those identifications were handled.
"Technology showed us how poor eyewitness investigation is," she said.
In 2008, the Texas Court of Criminal Appeals established the Texas
Criminal Justice Integrity Unit to review the strengths and
weaknesses of the criminal justice system.
But state Sen. Rodney Ellis, D-Houston, has filed SB 115, which would
establish an independent innocence commission.
Justice reform Several bills have been filed related to actual-
innocence cases.
SB 115 would establish an innocence commission.
SB 116 would require video recording of custodial interrogations.
SB 117 would increase the accuracy and reliability of eyewitness
identification.
HB 3594 would ensure the preservation of biological evidence.
HB 1736 would increase the lump sum that exonerees could receive from
the state to $80,000 for each year of imprisonment. Exonerees are now
eligible for $50,000 per year.
BILL HANNA,
817-390-7698
Bill would up penalty on prosecutors who suppress evidence
Lykos: wrongful conviction a cascading failure
By ROMA KHANNA
Copyright 2009 Houston Chronicle
March 12, 2009
Harris County District Attorney Pat Lykos publicly admonished police,
prosecutors and defense attorneys today in the wrongful imprisonment
of an innocent Houston man, saying his conviction resulted from “a
series of unfortunate events, blunders and omissions” and a
“cascading, systemwide breakdown.”
Her rebuke, contained in a rare post mortem report on the wrongful
conviction of Ricardo Rachell, blames police for failing to
investigate fully, prosecutors for not demanding DNA testing, defense
attorneys who never requested forensic evidence analysis, and what
she considers the most “egregious” failure: a dysfunctional Houston
Police Department crime lab.
Rachell last year was cleared in the 2002 sexual assault of an 8-year-
old boy, for which he was serving a 40 year-sentence. Although he
long protested his innocence and pointed to another man who continued
to assault young boys after Rachell’s arrest, his claims were not
investigated until recently.
Last month, Andrew Wayne Hawthorne, a convicted sexual offender
already serving a prison sentence, was charged with the assault that
put Rachell behind bars. When DNA evidence was finally tested in 2007
— though it took seven months to test it — the examination confirmed
Rachell was not the assailant and Hawthorne most likely was.
“The closure of the ... DNA crime lab was the most egregious system
failure,” Lykos wrote in her report. “This lab was closed from
December 2002 until May 11, 2005. It is a probability that, had the
lab been open and operating correctly, someone would have requested
testing of DNA evidence.”
The HPD crime lab had been shut down because of shoddy work and other
problems.
Lykos further notes that the District Attorney’s Office had no policy
of testing forensic evidence before trial, something she said will be
changed immediately.
Among other things, Lykos pointed to a letter written by Rachell to a
Houston police detective on Sept. 21, 2007, four years after his
conviction, in which Rachell blames Hawthorne for the assault and
asks that police investigate.
A lieutenant acknowledged similarities, but “distinguished the facts
of Rachell’s case from that of Hawthorne,” Lykos says in her report.
roma.khanna@chron.com
Lykos: wrongful conviction a cascading failure
Lykos makes DNA testing mandatory
District attorney says new policy is aimed at preventing wrongful
convictions such as the Rachell case
By ROMA KHANNA
Copyright 2009 Houston Chronicle
March 12, 2009
Harris County District Attorney Pat Lykos will require prosecutors to
test DNA evidence in every case where it is available and relevant to
prevent miscarriages of justice such as that which led to an innocent
man spending more than five years in prison.
“We are going to establish clear policies regarding forensics,”
Lykos told the Houston Chronicle recently. “In the (Ricardo) Rachell
case, there clearly was forensic evidence and it was not tested and
the question is, ‘Well, why not?’ ”
She is expected to release today the first-ever postmortem of a
wrongful conviction in Harris County, where DNA evidence has
exonerated five men in recent years but — until now — has prompted
little dissection of what went wrong.
Lykos’ report will detail the factors that contributed to the
conviction of Ricardo Rachell, who last year was cleared of the 2002
sexual assault of an 8-year-old boy for which he was serving a 40-
year sentence.
The report will provide guidelines that spell out when prosecutors
should order DNA tests and also will call for the creation of a
regional crime lab, which Lykos has pushed for since her campaign
last year.
Her findings in the Rachell case will be the latest in a series of
changes she has implemented since taking office in January. Lykos has
reversed some unpopular policies of her predecessor, last week
abandoning the long-standing policy that criminal defense attorneys
were not allowed to make copies of police offense reports in
prosecutors’ files.
In the Rachell case, Houston Police Department officers collected a
rape kit from the victim and reference samples from Rachell in 2002.
But that evidence never was tested until last year, when it pointed
to another man who committed other assaults while Rachell was in
prison. So far, no one from the District Attorney’s Office has been
able to say why the evidence was not tested sooner. Lykos will use
the Rachell case to push forward a plan to create a regional crime lab.
“You cannot expect a police department, no matter how large, to
oversee a crime lab,” Lykos said.
The idea of creating regional labs has surfaced several times since
2002, when HPD shut down its lab after shoddy work came to light. In
2005, lawmakers tried to create a network of regional labs across
Texas, but their efforts failed amid resistance to change and
questions about how to pay for it.
This time, Lykos is proposing something more local, possibly basing a
regional lab at the Harris County Medical Examiner’s Office, which
operates its own crime lab.
County Judge Ed Emmett met Tuesday with Medical Examiner Dr. Luis
Sanchez to talk about how it could be done.
“It’s a great idea,” Emmett said. “I think the idea is being
met with favorable reactions now because of all of the circumstances
that have gone on and the need to have a quality operation.”
Mayor Bill White said the city “would be happy to explore new
facilities with other participants in the criminal justice system in
this region.” And Police Chief Harold Hurtt, who in the past has
expressed concern about the cost and speed of a regional lab, also
supports the idea.
“I don’t think we have a choice,” he said Wednesday.
“If we are ever going to have the full confidence of the community,
we are going to have to make this move.”
roma.khanna@chron.com
Lykos makes DNA testing mandatory
High Court to Hear DNA Testing Case
Justices to Debate Whether Convicts Should Be Guaranteed Access to Latest Techniques
Kirk Bloodsworth spoke to reporters in Annapolis in 1997, after DNA tests exonerated him. He had spent nine years in prison on a wrongful murder conviction. (By James M. Thresher -- The Washington Post)
By Robert Barnes
Washington Post Staff Writer
February 22, 2009; Page A03
Their stories are familiar, even if their names no longer resonate: Bruce Godschalk, freed after spending 15 years in prison for rapes he did not commit; Jeffrey Deskovic, wrongly convicted for murder and released after spending nearly half his life behind bars; Kirk Bloodsworth, the Marylander who spent years on death row for murder before the true killer was identified.
They are among more than 200 people nationwide who were freed because DNA tests performed after their convictions showed they could not have committed the crimes.
And they now have joined civil rights groups, some current and former prosecutors, and a convicted Alaskan rapist to urge the Supreme Court to apply constitutional protections for the first time to what the prisoners' lawyers call "arguably the most important development in the history of forensic science: the advent of DNA testing."
They are opposed by victims rights groups; the vast majority of states, which have a patchwork of laws granting DNA access; and the federal government. The governments say that creating a constitutional right to the testing would infringe on states' rights, overwhelm them with frivolous demands and create an endless right of appeal for those convicted of the most violent crimes.
"These statutes reflect a careful balancing of the government's interests in finality, comity, and conservation of scarce resources," lawyers for the state of Alaska argue, "against a prisoner's interest in justice in those rare cases" when innocence could be proven by new forensic technology.
It is the Supreme Court's first case that confronts the dilemma of how to deal with DNA evidence, which former attorney general John D. Ashcroft called the "truth machine of law enforcement."
The increasingly accurate nature of biological testing has revolutionized criminal forensics, become a staple of television crime shows and, according to the Innocence Project, whose lawyers are representing convicted Alaskan rapist William G. Osborne, exonerated 232 prisoners, 17 of whom had been sentenced to death.
Osborne was convicted of the brutal rape and assault of a prostitute in a secluded area near the Anchorage International Airport in 1993. Two men had agreed to pay the woman for oral sex; instead, one forced her to perform fellatio while the second raped her. The men ordered the woman to leave the car and lie facedown on the snow, but she ran instead. They beat her until she feigned death, and one man fired a shot that grazed her forehead. Days later, police stopped Dexter Jackson on a driving infraction and found in his car a gun and knife belonging to the prostitute. Jackson implicated Osborne as his accomplice and the rapist. The woman later identified Osborne from a photo lineup as the "most likely" and "most familiar" suspect in the group. She said he had used a blue condom, which police found at the scene. Testing on the semen was consistent with Osborne's DNA -- but also with 14.7 to 16 percent of all African Americans'. Osborne's lawyer, basing his defense on Osborne's claim of an alibi, did not seek a more discriminating test that could clear him -- or link him more conclusively to the crime. He was found guilty and sentenced to 25 years in prison, with five years suspended.
Osborne wants to pay for a more exacting test of the DNA evidence that was introduced at his trial -- one so precise that even the state concedes it would probably prove his guilt or innocence -- but has been denied access by prosecutors.
Alaska is one of six states that do not have statutes allowing post-conviction access to DNA evidence, and although courts there have agreed to testing in a handful of cases, the testing has not taken place.
Among other objections in Osborne's case, the state fought his petition in federal courts that he deserved access to the evidence under civil rights laws, saying Supreme Court precedent does not allow such a petition to attempt to invalidate a conviction.
The U.S. Court of Appeals for the 9th Circuit in San Francisco disagreed with the state's argument, siding with Osborne that the evidence he sought would not automatically prove his innocence and could just as well establish his guilt. The court said its decision followed the principles in another Supreme Court precedent, Brady v. Maryland, which established the defense's right to exculpatory evidence at trial.
A brief on Osborne's behalf filed by the American Civil Liberties Union, the Rutherford Institute and criminal defense lawyers said it should be clear that such a constitutional right exists, even if it has not been articulated. "If the Constitution' s protection of individual liberty means anything, it must mean that a state cannot continue to detain someone who conclusively proves through a DNA test that he is innocent of the crime that is the basis for his incarceration, " the groups argue.
But Alaska Assistant Attorney General Kenneth M. Rosenstein said that forcing all states to comply with a certain procedure would be a "relatively unprecedented" imposition on states' abilities to decide their own criminal procedures.
He said the court should reject Osborne's argument "that this should be taken out of the hands of the state, which is unprecedented in a post-conviction context, where the Supreme Court has given the states incredible leeway." Besides, said Rosenstein's co-counsel Roy Englert, a veteran Supreme Court practitioner, Osborne "is a pretty lousy candidate for DNA testing." Englert notes that Osborne and his attorney passed up the chance for more extensive testing at the time of his trial. He was implicated in the crime not just by a terrified victim but by the other man involved in the attack. And, in a bid for parole in 2004, he confessed.
In a recent jailhouse interview with the Juneau Empire, Osborne avoided a question on his innocence, saying of his case, "I just hope it helps somebody, somewhere down the line, somehow."
Released from prison after serving 14 years of his sentence, he was soon arrested for a home invasion. He is now serving time for that crime and then must finish the sentence for the rape.
But those who support Osborne's request say the decision on who has access to post-conviction testing should not be up to those who have tried to prove guilt. "Relying solely on the unfettered discretion of prosecutors to unlock the promise of DNA analysis can sanction injustice," said a brief filed on behalf of current and former prosecutors, including former attorney general Janet Reno. Nor, said University of Pennsylvania law professor David Rudovsky, should the right to DNA testing be limited by individual states.
Rudovsky represented Godschalk, who won the right to DNA testing in the courts even though he, fed details of the rapes by police, had confessed to the crimes. Some states do not allow DNA testing if the convicted has confessed.
In what the federal government says in its brief is a "vibrant democratic process," others allow it only for capital crimes, and some place time limits on requests for testing. "There are people out there now in prison who are innocent," Rudovksy said, but the jurisdictions in which they were convicted deny them access to DNA evidence that would prove it.
District Attorney's Office v. Osborne is scheduled to be argued March 2.
High Court to Hear DNA Testing Case
Feb. 20, 2009
Perry says innocence commission is not needed
Top state jurists support a commission to investigate wrongful convictions, but the governor believes such a panel would be a needless addition to state bureaucracy.
State Chief Justice Wallace Jefferson endorsed the commission idea in 2005 and 2007 and says he hasn't heard a worthy objection yet. He wants state lawmakers to pay for a panel.
"What better way to spend public dollars than to make sure the innocent doesn't go to jail?" Jefferson, who leads the state's top civil court, told the Fort Worth Star-Telegram.
Sharon Keller, presiding judge of the state's highest criminal court, the Texas Court of Criminal Appeals, offered qualified support, saying she doesn't want a commission that duplicates work of the Innocence Projects statewide and nationwide.
This month, 9 men who were exonerated of crimes urged lawmakers to study the causes of wrongful convictions and try to prevent them. Since 2001, 33 men have been exonerated, including 17 in Dallas County using DNA testing.
Gov. Rick Perry doesn't think that a commission is needed, said spokeswoman Allison Castle. She said Perry supports a better system for providing attorneys to poor criminal defendants, and favors post-conviction DNA testing.
"He is committed to providing a fair criminal justice system. But the governor's sentiment is that we don't need another layer of bureaucracy," Castle said.
District attorneys fear that a commission could become a forum for bashing prosecutors.
State Sen. Rodney Ellis, a Houston Democrat who sponsored failed bills to create a 9-member Innocence Commission, said a commission could help restore confidence in the Texas criminal justice system.
(source: Associated Press)
Feb. 19, 2009
D.A. to Discuss Righting Wrongful Conviction Cases----2 Exonerated
Defendants to Join Watkins at Justice Studies and Pre-Law Event
Craig Watkins, Dallas County district attorney, will visit UT Dallas to discuss his role in the release of wrongfully convicted Texas prisoners.
He will be joined by two men who were exonerated through DNA evidence, Charles Chatman and James Woodard.
The event, sponsored by the Center for Crime and Justice Studies in the School of Economic, Political and Policy Sciences, and the UT Dallas Pre-Law Society, will be held Wednesday, March 4, in Davidson Auditorium in the School of Management (SOM 1.118). Watkins' 1-hour talk, "The District Attorneys Role in Criminal Justice Reform," will begin at 5:30 p.m.
"Craig Watkins has a unique perspective on the role of a district attorney which it is important for our students to hear," said Dr. Anthony Champagne, political science professor and director of the Pre-Law program. "In Watkins' view, the district attorney's role is larger than prosecuting the accused; it is the pursuit of just outcomes in the criminal justice process."
Champagne worked with Dr. Jim Marquart, head of the Criminology and Sociology programs to organize the event.
Watkins is the chief law enforcement officer for Dallas County. He was elected district attorney in 2006 and inaugurated in January 2007, becoming the 1st African-American to serve in the position.
In July of 2007, Watkins established the Conviction Integrity Unit, which oversees the post-conviction review of more than 400 DNA cases in conjunction with Innocence Project of Texas.
The Conviction Integrity Unit is the first division of its kind in the United States. The IPOT is a nonprofit organization dedicated to overturning wrongful convictions and securing freedom for men and women wrongfully imprisoned for serious crimes in Texas.
Student volunteers and experienced legal advocates dedicate their time to investigate claims of innocence filed by inmates.
The partnership between the Conviction Integrity Unit and the Innocence Project has resulted in the release of 19 wrongfully convicted prisoners, including lecture guests Chatman and Woodard.
Charles Chatman spent more than 26 years in prison for an aggravated sexual assault he did not commit. James Woodard served more than 27 years for a Dallas County murder he did not commit, making him the longest serving man in the U.S. to be released as a result of DNA evidence.
Watkins, Chatman and Woodard will take audience questions following the lecture. The event is free and open to the public. For more information, or to reserve a seat, contact (972) 883-6257 or register online.
(source: UTDallas News)
Justice delayed
Copyright 2009 Houston Chronicle
Feb. 18, 2009
Finally, the man whose DNA links him to the crime for which an
innocent man spent six years in prison has been identified. Last
Friday, the Chronicle’s Roma Khanna reported that the Houston Police
Department confirmed, along with other sources, that a registered sex
offender, Andrew Wayne Hawthorne, is their primary suspect and is
expected to be charged soon.
The sooner the better. It’s difficult to understand why the charge
could not be expedited to at least bring some closure to Ricardo
Rachell, who was freed last December after spending six years in
prison, wrongly convicted of sexually assaulting an 8-year-old boy.
It seems like just one more in a ghastly series of mistakes,
oversights and omissions by which police, prosecutors and a defense
attorney failed in their duty to see that justice was done. Those
failings include the following:
Rachell was convicted on dubious eyewitness testimony: A day after
the attack, the victim’s mother took her son and his friend to where
she had seen Rachell riding his bike earlier and asked them if
Rachell was the attacker.
Rachell’s face had been disfigured by a shotgun blast several years
earlier, but the child said nothing about the deformity after he was
attacked. The boys later identified Rachell as the attacker. During
the trial, two jurors questioned the role of the mother in the
identification. Rachell was found guilty.
Physical evidence was collected at the scene and taken to the police
property room, but nobody — not one of the three assistant district
attorneys who handled the case before it went to trial, nor the
defense attorney — ever asked that it be tested.
Rachell was arrested in October 2002, but strikingly similar attacks
on young boys continued in the same neighborhood. Rachell sent copies
of a news story to his attorney about the attacks before his trial,
but his attorney declined to follow up.
Police finally “recognized a pattern” in the attacks, they told
reporters in October 2003, and a few weeks later, on the strength of
DNA evidence, arrested Hawthorne. He pleaded guilty to three attacks
(not including the one Rachell was convicted for) and is now serving
a 60-year sentence.
Last year, Rachell successfully appealed for DNA tests to be
performed on evidence that was gathered in 2002 but never examined.
(Less than two months after it was delivered to the police property
room, the DNA division of HPD’s scandal-plagued crime lab was shut
down.) That evidence, never acknowledged until Rachell appealed, was
found, still stored in the police property room. When tested, it
cleared Rachell of the crime and pointed to Hawthorne as the attacker.
Rachell, 51, could be eligible for about $300,000 in compensation if
he gets a full pardon, according to state law. And the man who was
ridiculed and taunted because of his disfigurement will undergo
plastic surgery to restore his face, courtesy of Methodist Hospital
and the Agris-Zindler Foundation.
Meanwhile, the police department is conducting an internal
investigation, and Harris County District Attorney Pat Lykos has
promised to take action.
Lykos told the Chronicle on Tuesday that Rachell had suffered “a
gross miscarriage of justice,” and that she has ordered a “post
mortem” on the case, investigating it “from alpha to omega.” She’s
also looking carefully at the Hawthorne matter. “Changes will be
made,” she promised. “For sure.”
Lykos, elected last November, succeeded Chuck Rosenthal, who resigned
in disgrace earlier last year. She campaigned on a pledge to restore
public trust and confidence in the district attorney’s office.
No one can restore the six years that Ricardo Rachell lost so
unjustly, but promptly charging the attacker would be a start in
restoring some of that trust and confidence.
Justice delayed
Exoneration at center of DNA and evidence bills
By JIM VERTUNO
Associated Press Writer © 2009 The Associated Press
Feb. 15, 2009
AUSTIN, Texas — Ten years after he died in prison serving time for a
rape he didn't commit, Timothy Cole had his day in court. If police
and advocates for the wrongfully convicted have their way, he'll get
another at the Legislature.
Both groups are separately pressing lawmakers to pass bills they say
could help keep others from suffering the same fate as Cole, who
earlier this month became the first Texan posthumously exonerated of
a crime.
A measure sought by some Texas police chiefs would allow taking DNA
from suspects arrested for mid-level misdemeanors on up, which could
include offenses ranging from indecent exposure to writing a bad
check for child support.
The other would set legal standards for how eye witness evidence can
be collected by police.
Now that the House finally appointed committees, lawmakers from both
chambers will soon be debating and voting on bills. House and Senate
committees are holding meetings this week.
Texas is one of several states that draw DNA samples from anyone
convicted of a felony and those arrested for particularly violent
crimes, such as sexual assault and murder. The federal government
takes samples from everyone arrested by federal officers.
Austin Police Chief Art Acevedo is among the law enforcement
officials pushing to collect DNA from suspects in Class B
misdemeanors. Their plan could mean sampling more than 800,000 people
a year, some of whom may never be convicted or even go to trial.
Experts say that while a few states take DNA in misdemeanors
involving sex crimes, none has gone as far as the Texas idea. The
American Civil Liberties Union worries that police might make arrests
just to fish for a DNA match.
"We think this is an outrageous invasion of privacy," said Rebecca
Bernhardt, policy director of the American Civil Liberties Union of
Texas.
"This is a step in the direction of creating a DNA database of every
person in Texas, which is something Texans should be against," she
said. "DNA is the most basic and private information a person has."
Acevedo says the samples would help police find criminals and exclude
innocent people. The DNA proposal would include destroying records
when charges are dropped or someone is acquitted at trial, Acevedo said.
"DNA has proven to be a tool that has gone a long way in proving the
innocence of wrongly convicted individuals," Acevedo said, noting the
Cole case. "This is an opportunity to eliminate people early on."
But using the Cole case to press the issue is misleading, the ACLU
says. As a felony rape suspect, Cole's DNA could have drawn under
existing laws.
Some lawmakers, even those who have pushed for reforms in post-
conviction DNA testing that could help prove wrongful convictions,
are leery of expanding DNA collections as far as the police chiefs
want to go.
Sen. Rodney Ellis, a Houston Democrat, said Texas should be wary of
expanding police powers on such a broad scale.
"There is a very fine line to be walked balancing civil liberties,
constitutionality, and trying to build a DNA database that would
serve good public interests," Ellis said.
It's an issue lawmakers have debated in the past "and the consensus
has been to not expand mandatory DNA testing," he said.
Cole was convicted resulted largely from faulty eyewitness
identification of him as the rapist.
Ellis has filed bills to set legal standards for how police lineups
are conducted. He also wants to create a state Innocence Commission
to investigate wrongful convictions.
Michele Mallin, the rape victim in Cole's case, was a Texas Tech
University student when she was attacked in Lubbock in 1985. She
picked Cole out of a photo lineup that included five other pictures.
All were standard jail mug shots except for Cole's color Polaroid.
She also later identified Cole in a live lineup and again at trial.
The Associated Press does not typically identify rape victims but
Mallin came forth publicly to help clear Cole's name.
Mallin says she remembers telling police "I think that's him" when
she first saw Cole's picture, but that investigators encouraged her
to be more certain. A note in the case file suggested she was more
confident of selecting Cole than she really was.
Experts at Cole's exoneration hearing were highly critical of how the
lineups were conducted.
Cole's photo would "stand out like a sore thumb," said Mike Ware, a
Dallas County prosecutor in charge of that office's conviction
integrity unit.
Ellis' bill requires lineups be conducted by someone who doesn't know
which person is the suspect. That would prevent them from encouraging
witnesses to pick that person.
Witnesses also would be told the perpetrator may not be in the
lineup. And they would provide a statement of how confident they are
of their choice. All individuals in the lineup would have to fit the
description of the suspect.
At least eight other states require some of the same or similar
standards, Ellis' office said, and some are already being used by
local police and sheriffs.
Prosecutors are watching the eyewitness bill closely, said Shannon
Edmonds, spokesman for the Texas District and County Attorneys
Association.
"If there is a better way to do it, they're interested," he said.
But while prosecutors want to take the best evidence possible to
trial, they worry that writing standards into law could get some good
cases thrown out by a judge if someone makes a mistake.
"The criminal goes free because the constable blundered," Edmonds said.
Attorney Barry Scheck, who helped found the Innocence Project, a
national organization that assists prisoners who could be cleared by
DNA testing, said Texas needs to make the eyewitness changes.
"The protestations of those who say we can't do it, it's impractical,
it's too hard, the days of those kinds of protests really have to
go," Scheck said. "It's time has come."
The judge who exonerated Cole said the Texas judicial system failed
Cole, his family and the rape victim.
"Timothy Cole suffered the greatest miscarriage of justice
imaginable," Judge Charles Baird said. "This system is broken ... and
we are fools if we don't fix it."
Exoneration at center of DNA and evidence bills
Editorial: Punish those who wrongfully convict
February 10, 2009
Timothy Cole died in prison an innocent man, victimized by a gross
miscarriage of justice. Although a judge in Austin cleared Cole's
name last week, work still awaits the Legislature to ensure that such
a travesty never occurs again.
Like most of the 33 other wrongfully convicted men in Texas who were
subsequently cleared, Cole was black. He was attending Texas Tech in
1985 when fellow student Michelle Mallin was raped. Prosecutors
already had another strong suspect in the case, Jerry Wayne Johnson,
a black man already charged in two other rapes. But they kept that
information from Mallin and disregarded it as they constructed a case
against Cole. He received a 25-year prison sentence.
Multiple witnesses testified that Cole was in an apartment studying
when the attack occurred. Substantial physical evidence linked
Johnson to the attack, but absolutely none pointed to Cole. Police
did not put Johnson in a lineup or even present his photo to Mallin.
Believing authorities' assertions that they had other evidence
pointing to Cole's guilt, she mistakenly identified him as the attacker.
Johnson confessed in 1995, and DNA tests proved that he did it. But
Lubbock authorities, including prosecutor Jim Bob Darnell, ignored
the confession. They let Cole languish in prison until he died in
1999, at age 39.
Justice was never served for Cole or his family. Prosecutors decided
on Cole's guilt long before they had a case against him. They used
racial stereotypes to sway Mallin and to convince the all-white jury
to disregard Cole's black witnesses. Those authorities have never
answered for their actions.
State Sen. Rodney Ellis of Houston is introducing two bills this
session to tighten lineup-identificati on procedures and require the
recording of suspect interrogations. Another pending bill would boost
compensation for victims of wrongful convictions. Lawmakers should
also seriously consider a proposal supported by Dallas District
Attorney Craig Watkins and the Texas Innocence Project to criminalize
the withholding of exculpatory evidence in cases such as Cole's.
The shame should forever haunt Darnell and his cohorts for the
injustice they committed. For others who follow, the prospect of
criminal prosecution should chill their conviction-at- all-costs
enthusiasm.
Punish those who wrongfully convict
Posted on Feb. 06, 2009
Man's exoneration creates 'perfect storm' for reforms
BY MAX B. BAKER
AUSTIN -- Questions being raised by the posthumous exoneration of
Timothy Cole may be creating a “perfect storm” that could lead to the
passage of criminal justice reform issues in the Texas Legislature,
including adoption of procedures for eyewitness identification.
Cole’s wrongful conviction on an aggravated sexual assault charge in
1986 was based largely on the testimony of the victim, who picked
Cole as her attacker after being subjected to a faulty photo lineup.
Cole’s family and Michele Mallin, the woman who testified against
him, were in Austin Friday trying to get his conviction overturned.
DNA tests proved Cole was not her attacker, but not before he died in
prison.
“This is the day. It is a perfect storm,” said Barry Scheck, the
director of the Innocence Project in New York. “This is the time for
the legislative bills to be passed. The Tim Cole case brings it home.”
State Sen. Rodney Ellis, D-Houston, already has introduced several
criminal justice reform bills including one to increase the accuracy
and reliability of eyewitness identification procedures.
Attorneys associated with the Innocence Project of Texas said that 82
percent of the DNA exonerations in Texas were largely or exclusively
due to incorrect witness identification and that 95 percent of those
in Dallas were the result of faulty procedures.
But even with those startling statistics, Jeff Blackburn, chief
counsel of the Innocence Project of Texas, and others said that 88
percent of the police departments in the state don’t have eyewitness
identification policies.
“It’s going to be up to the Legislature to restore justice in the
criminal justice system,” Blackburn said. Ellis’ legislation is
promoting four key procedural changes:
Adopt what is known as a “double blind” lineup where the person
administering the photo or live lineups does not know who is the
potential suspect, preventing the witness from being encouraged to
pick someone.
Give the witness instructions so that they know the actual
perpetrator may not be in the lineup.
Get the witness to give a statement after identification is made to
determine how sure they were about their choice.
Individuals in the lineup must resemble the witnesses’ description
with only one suspect in a lineup along with five or more “fillers.”
“The expected exoneration of Tim Cole should serve as a wake-up call
to Texas,” Ellis said in a statement. “It is time to get our house in
order and enact reforms that, wherever possible, can help avert
miscarriages of justice before they happen.”
Max B. Baker
maxbaker@star-telegram.com
817-390-7714
Man's exoneration creates 'perfect storm' for reforms
Exoneration hearing under way
By Steven Kreytak
February 5, 2009
A hearing that could lead to the first formal posthumous DNA exoneration in Texas is under way in a Travis County courtroom.
State District Judge Charlie Baird’s court is filled to capacity for the hearing. The crowd includes about two-dozen family members of Tim Cole, the man who died in prison in 1999 while serving a 25-year prison for a crime he likely did not commit.
Cole was convicted of raping Michele Mallin, then a 20-year-old fellow Texas Tech student, in Lubbock in 1985. DNA results last year showed that a man convicted in two other rapes in Lubbock that year likely committed the crime.
Mallin, who in photographic and live lineups identified Cole as her attacker in 1985, is joining Cole’s family in seeking to formerly clear Cole’s name.
The Innocence Project of Texas is representing them.
After a Lubbock judge denied their bid for a hearing on the case, Innocence Project of Texas lawyer Jeff Blackburn brought the case to Baird. Blackburn said he wanted it heard in the state capital and called Baird one of the state’s best judges.
“All they ever wanted,” Blackburn said in his opening statement, pointing to Cole’s family, “was the simple satisfaction of having a court in this state … just say we made a mistake.”
Barry Scheck, a co-director of the national Innocence Project, is assisting on the case.
He said the hearing will help avoid wrongful convictions in the future.
“We can’t have justice unless we learn from the mistakes,” Scheck said.
Jerry Wayne Johnson, a man convicted of two other rapes around the time Mallin was raped, is expected to testify. He has sent a series of letters since 1995 confessing to the crime.
Also in the court is Dallas County District Attorney Craig Watkins, whose conviction integrity unit chief will testify at the hearing.
Baird said he was honored to have Watkins in his court, calling himself an “admirer” of Watkins.
The first witness of the hearing is Mallin, who is telling Baird about the night she was raped in 1985 and how angry she was.
“It just angered me,” she said. “I thought ‘you don’t’ have the right to do this to me.’ I thought ‘if I get out of this alive, you are going down.”
Categories: witness identification
Exoneration hearing under way
Hearing in Austin could lead to DNA exoneration
Tim Cole, convicted of rape of Texas Tech student in 1985, died in
prison in 1999
By BETSY BLANEY
Associated Press
Feb. 1, 2009
LUBBOCK — For Tim Cole’s family, a return to a courtroom this week
renews hope they’ve clung to since he was convicted of rape more than
two decades ago.
Cole and his relatives for years claimed he was innocent in the rape
of a Texas Tech student in 1985. But until DNA from the crime scene
was tested last year, no one else believed them.
That test showed another man, already imprisoned for rape, committed
the crime for which Cole was sentenced to 25 years.
His family will ask an Austin judge on Thursday to overturn the
conviction, but Cole won’t be with them. He died in prison in 1999 at
age 38.
Cory Session, Cole’s brother, said the DNA test served its purpose.
“That’s vindication,” Session said. “We need exoneration. We are
extremely hopeful that this process will actually get him cleared.”
It would be the first posthumous DNA exoneration in Texas, according
to attorney Jeff Blackburn of the Innocence Project of Texas, paving
the way for a pardon by the governor and, eventually, expunging
Cole’s record.
“For us it’s got to be one step at a time,” Blackburn said.
Blackburn has enlisted the help of Barry Scheck, who helped found
Innocence Project, a national organization that assists prisoners who
could be cleared by DNA testing.
The case against Cole relied primarily on identification by Michele
Mallin, his alleged victim. The Associated Press does not typically
identify rape victims but Mallin has come forth publicly to help
clear Cole’s name.
Blackburn and others working on Cole’s behalf allege the photo lineup
used in 1985 was flawed. Mallin picked Cole out of a photo array that
included at least six other pictures. All were standard jail mug
shots except for Cole’s photo, which was a Polaroid.
Mallin, who Blackburn said would be at the hearing, later identified
Cole in a live lineup and again at trial.
Also instrumental in the efforts to prove Cole innocent was Jerry
Wayne Johnson, shown by DNA tests last spring to be Mallin’s actual
attacker.
Johnson, now serving time in a Snyder prison for two other rapes
during the 1980s, has been trying for more than a decade to convince
authorities that he raped Mallin.
He got no response.
Then on May 11, 2007, Johnson sent Cole a letter addressed to his
mother’s Fort Worth home. Not knowing Cole had died in prison years
earlier after an asthma-induced heart attack, Johnson admitted raping
Mallin and offered to help prove him innocent.
“If this letter reaches you, please contact me by writing so that we
can arrange to take the steps to get the process started,” wrote
Johnson. “Whatever it takes, I will do it.”
The letter reached Cole’s family, who contacted a reporter and the
Innocence Project.
Johnson, 49, also will be at the hearing and will probably testify,
Blackburn said. A bench warrant will allow him to travel from his
cell at the Price Daniel Unit in Snyder to Austin for the hearing,
which could last a couple of days. No one is expected to oppose the
effort to overturn Cole’s conviction, Blackburn said.
The hearing is the first step in a Court of Inquiry — an obscure and
rarely used legal procedure — for which Blackburn’s petitioned.
“We’re anxious to hear what (Johnson) has to say,” Session said.
“It’ll be a very emotional court hearing and it will take us all back.”
Lubbock County prosecutors have acknowledged the DNA test shows Cole
was not the rapist. There is, however, no simple legal channel to
formally exonerate someone who has died. An effort earlier this year
to establish a Court of Inquiry was denied by the 99th District Court
in Lubbock, Blackburn said.
Blackburn was granted a hearing from the 299th District Court in Austin.
Session said for now all the family wants is to have Cole’s name
cleared. He did not rule out pursuing civil damages for his brother’s
wrongful conviction.
“There’s not one remedy that will bring Tim back,” Session said.
“That is a pain I still do not know how my mother deals with.”
Hearing in Austin could lead to DNA exoneration
U.S. Supreme Court to Decide Whether Prisoners Have a Right to Post-Conviction DNA Tests
By; The Innocence Blog
Posted on January 28, 2009
(WASHINGTON, DC; January 27, 2009) -- The federal Constitution allows
prisoners access to DNA testing that could prove their innocence --
particularly when a state lacks a law granting DNA testing and the
state can show no reason to deny it -- the Innocence Project argued
in a brief filed at the U.S. Supreme Court.
The Innocence Project represents William Osborne, who was convicted
of rape, attempted murder and related charges in 1993 in Alaska. For
eight years, Osborne has sought advanced DNA testing that could prove
his innocence. Alaska is one of just six states without a law
granting post-conviction DNA testing. In 2007, the U.S. Court of
Appeals for the Ninth Circuit ruled that it is unconstitutional to
deny him access to DNA testing, and the state appealed that ruling to
the U.S. Supreme Court, which will hear oral arguments in the case on
March 2.
"The issue in this case is whether a state can deny a prisoner access
to DNA testing that was not available at the time of trial and has
the potential to prove his innocence. In the vast majority of cases,
prisoners are granted DNA testing under state law or because
prosecutors consent to testing without a court order. Alaska is the
exception. It is the only state in the nation with no known case of a
prisoner receiving DNA testing, either through court order or a
prosecutor's consent. This case involves a very important
constitutional protection -- one that is the only option for William
Osborne," said Peter Neufeld, Co-Director of the Innocence Project,
which is affiliated with Cardozo School of Law.
In asking the Supreme Court to take the case, the state conceded for
the first time that favorable DNA testing "would conclusively
establish [Osborne's] innocence" -- raising more questions about why
the state will not simply consent to DNA testing. The testing would
come at no cost to the state, since the Innocence Project will pay
for it, as the organization does in most of its cases. In its Supreme
Court brief, the state makes procedural claims against Osborne's
lawsuit seeking DNA testing but never gives a rationale for denying
him access to testing itself. In oral arguments at the U.S. Court of
Appeals for the Ninth Circuit, a three-judge panel repeatedly
questioned the state's attorneys about why they are denying Osborne
access to DNA testing. The attorneys said they were not "willing or
able" to answer any of those questions "at this time."
In its brief on behalf of Osborne, the Innocence Project outlines a
long history of legal precedent giving prisoners access to evidence
and protecting their ability to prove their innocence under the Due
Process Clause of the U.S. Constitution. The brief also explains that
limited DNA testing was available at the time of Osborne's trial but
that type of DNA testing was about as discriminating as blood-type
testing -- whereas newer, more sophisticated DNA testing can identify
individuals uniquely. The case before the Supreme Court does not seek
to overturn Osborne's conviction or challenge any part of the process
leading to his conviction -- instead, it challenges the government's
arbitrary refusal to permit him access to the evidence in his case so
that it can be subjected to testing that was not available at the
time of his trial.
"DNA technology is new, but the principles in this case have a long
and rich tradition. For decades, the Supreme Court has recognized
that defendants need access to evidence and people's right to liberty
must be protected even after they are convicted. More recently,
courts across the country have recognized the power of DNA testing to
resolve claims of innocence," Neufeld said. "Most prosecutors, judges
and states recognize that while DNA testing in these cases may not
always protect a conviction, it protects our system of justice by
revealing the truth."
The brief filed on behalf of Osborne Monday night is listed: Here.
Below is background on Osborne's case, as well as information on DNA exonerations relevant to the issues being raised in this case.
William Osborne's case
In March 1993, Dexter Jackson and another man (both of whom were
black) solicited sex from a white prostitute (identified as K.G. in
court documents) in Anchorage. When K.G. got into Jackson's car, the
men drove her to a secluded location, threatened her at gunpoint and
robbed her. K.G. was then forced to perform a sex act on Jackson
while the other man vaginally raped her, using a blue condom he had
taken from her. K.G. attempted to flee, and the men beat her
severely. One of the men (who K.G. said was the second perpetrator)
shot her, and the bullet grazed her head. The men then buried her in
the snow and left her for dead.
Within days, Jackson was arrested. He was carrying a knife that
belonged to K.G., and K.G.'s blood was found in his car. Other
physical evidence linked him to the crime, and he was arrested. He
confessed and reportedly said Osborne was the second perpetrator;
because Jackson and Osborne were tried together, Jackson's statements
about Osborne were not used against him. The victim identified
Osborne as the second perpetrator -- but her initial identification
was tentative, there were substantial differences between her
description of the second perpetrator and Osborne's appearance, and
she had extremely poor vision and was not wearing glasses or contacts
on the night of the crime. Osborne maintained that he was with
Jackson later on the night of the crime, but he had a documented
alibi for the timeframe during which Jackson and another man were
committing the crime. Jackson and Osborne were convicted; Osborne was
sentenced to 26 years in prison. (He was released on parole in 2006,
after making the difficult decision to admit guilt to a crime he says
he didn't commit, since in most cases an admission can be favorable
for receiving parole. Since being released, Osborne has been arrested
on unrelated charges.)
Rudimentary DQ-Alpha DNA testing on fluids from the blue condom
showed that Osborne (along with 14.7% to 16% of all African
Americans) was "possibly a source" of the fluids. At the time of
Osborne's trial, a state expert considered conducting the only other
kind of DNA testing available at the time, RFLP testing; that kind of
DNA testing cannot yield a result from small or degraded items of
evidence, and the expert said the evidence was too degraded to expect
a result. Osborne pleaded with his trial attorney to attempt RFLP
testing at another laboratory, but his attorney refused. Osborne also
wrote to an out-of-state DNA expert for help, but under state law the
decision to pursue RFLP testing was left to his attorney.
In 2001, Osborne sought more advanced DNA testing in state court.
That case proceeded unsuccessfully for several years, and in the
meantime Osborne began seeking DNA testing in federal court. The
Innocence Project took his case in 2003, working with local counsel,
Randall Cavanaugh of Kalamarides & Lambert and Robert Bundy of Dorsey
& Whitney LLP in Anchorage. At the U.S. Supreme Court, Williams &
Connolly LLP is co-counsel with the Innocence Project, Bundy and
Cavanaugh. Kannon Shanmugam, Anna-Rose Mathieson and Jaynie Lilley
are handling the case for Williams & Connolly.
Background on DNA exonerations relevant to the Osborne case
Nationwide, 232 people have been exonerated through DNA testing after
serving an average of 12 years in prison for crimes they did not
commit. Exonerations have taken place in 33 states and the District
of Columbia.
44 states and the District of Columbia have passed statutes granting
access to post-conviction DNA testing. The first state to pass such a
statute was New York in 1994. The most recent states to pass statutes
were South Carolina and Wyoming in 2008. A federal statute granting
post-conviction access to DNA testing in federal cases passed in 2004.
The six states without statutes granting post-conviction access to
DNA testing are Alabama, Alaska, Massachusetts, Oklahoma, Mississippi
and South Dakota.
Alaska is the only state in the nation where there have been no known
cases of prisoners being granted DNA testing through a court order or
the consent of a prosecutor.
In 82 percent of the exoneration cases for which records are
available, prosecutors consented to DNA testing.
In 25 percent of the wrongful convictions overturned through DNA
testing nationwide, innocent people confessed or admitted to crimes
they did not commit. In 5 percent of all cases that resulted in DNA
exonerations, innocent people actually pled guilty to crimes they
didn't commit.
The Innocence Project, which is affiliated with Benjamin N. Cardozo
School of Law at Yeshiva University, is a national litigation and
public policy organization dedicated to exonerating wrongfully
convicted people through DNA testing and reforming the criminal
justice system to prevent future injustice. The Innocence Project was
founded in 1992 by Peter Neufeld and Barry Scheck. To date, 232
people nationwide have been exonerated through DNA testing and dozens
of states have implemented critical reforms to prevent wrongful
convictions.
U.S. Supreme Court to Decide Whether Prisoners Have a Right to Post-Conviction DNA Tests
01/25/09
The Death Penalty: Executing the Innocent
The U.S Supreme Court has held that it does not violate the U.S. Constitution to execute the innocent, so long as the condemned received a "fair trial."
Read full story Here:
CRIME & PUNISHMENT
Four pathologists back death row inmate's innocence claim
Swearingen, slated to die Tuesday in college student's 1998 murder,
was in jail at time, 4 now say.
By Chuck Lindell
AMERICAN-STATESMAN STAFF
January 24, 2009
Four forensic pathologists agree that Larry Swearingen, set to be
executed Tuesday, could not have committed the 1998 murder that sent
him to death row.
The four include the medical examiner whose testimony helped secure
Swearingen's guilty verdict. That medical examiner now says college
student Melissa Trotter's curiously preserved body could not have
lain in the East Texas woods for more than 14 days — and probably was
there for a much shorter time.
The results mean Swearingen was in jail when the 19-year-old' s body
was left behind, the pathologists say.
"It's just scientifically impossible for him to have killed the girl
and thrown her into the woods," said James Rytting, Swearingen's
appellate lawyer. "It's guilt by imagination."
Prosecutors disagree, saying compelling evidence ties Swearingen to
the crime, including a match between the panty hose leg found around
Trotter's neck and the stocking remnant found in a trash dump next to
Swearingen's mobile home. Also, hair and fibers show Trotter had been
in Swearingen's truck and mobile home in Willis, about 40 miles north
of Houston.
But in court briefs seeking to keep Swearingen's execution on track,
prosecutors do not attack the conclusions by the four pathologists
beyond labeling them "opinion evidence based on experts' second-hand
review of others' work and photographs."
One of those pathologists, however, did Trotter's autopsy.
In her original report, Dr. Joye Carter determined that Trotter's
strangled body had lain in the Sam Houston National Forest outside
Conroe for 25 days — coinciding exactly with the date of Trotter's
disappearance from Montgomery County Community College, Dec. 8, 1998.
Witnesses said Trotter left the campus library that day with
Swearingen, whom she met two days earlier.
The timing was important because Swearingen had been in jail since
Dec. 11 on outstanding traffic warrants.
But faced with conclusions from other pathologists that her 25-day
time of death defied scientific analysis and common sense, Carter
recanted her findings in a 2007 affidavit. "Ms. Trotter's body was
left in the woods within two weeks of the date of discovery" on Jan.
2, 1999, she wrote.
Reassessment of Trotter's autopsy began late in Swearingen's appeals
process when a defense pathologist noticed that Carter found an
intact spleen and pancreas.
Both organs liquefy quickly after death, prompting a more thorough
review:
• Five recently discovered slides of heart, lung and nerve tissue
from Trotter's autopsy revealed intact nuclei and red blood cells,
said Dr. Lloyd White, Tarrant County deputy medical examiner.
Red blood cells break down within hours, and nuclei in heart cells
break down within days, White said.
Also, levels of bacteria indicated the body had not been frozen or
preserved, he said.
White's conclusion: Trotter had been dead for two or three days
before her discovery.
• Trotter's mucosa — fragile tissue in the stomach and intestines
that quickly disintegrates after death — was intact, noted Dr. Glenn
Larkin, a North Carolina pathologist.
The condition of the mucosa indicates with "medical certainty" that
Trotter had been in the forest for less than 10 days and more likely
three or four days, Larkin concluded.
• Trotter weighed 109 pounds at a doctor's visit shortly before she
disappeared, but her body weighed 105 pounds, a 4 percent decline.
Larkin concluded that a body will lose up to 90 percent of its weight
in less than 25 days under temperatures endured by Trotter's body:
average highs of 62 and lows of around 40.
• Unlike a body left outside for 25 days, Trotter's showed no sign of
bloating or perforated intestines. Her clothes were unsoiled and
slipped easily from her body during the autopsy. There was limited
scavenging by animals in a forest inhabited by feral pigs, vultures
and raccoons.
"The following forensic conclusion is therefore not reasonably
debatable amongst competent forensic pathologists: Without question,
Mr. Swearingen was not the person who left Ms. Trotter's body in the
Sam Houston National Forest," Larkin said in an affidavit.
Thus far, only the Texas Court of Criminal Appeals has seen the
opinions from the four forensic pathologists.
The state's highest criminal court, however, did not rule or comment
on the information. Instead, the court dismissed Swearingen's
petition for violating state laws that limit death row inmates to one
petition for a writ of habeas corpus unless lawyers uncover
information that was not available when the first appeal was filed.
The appeals court has yet to rule on a stay of execution motion that
repeats the forensic conclusions.
The opinions from the forensic pathologists also were included in a
plea to Gov. Rick Perry to issue a 30-day execution reprieve.
Swearingen also has two federal petitions pending based on the
forensic information. He is asking the 5th U.S. Circuit Court of
Appeals for permission to bring the findings to a U.S. District Court
for review, and he is asking the U.S. Supreme Court to review the case.
Texas Attorney General Greg Abbott has opposed both requests, saying
Swearingen has not met federal requirements to pursue an innocence
claim and is, in fact, not innocent.
Swearingen has presented no new DNA or indisputable evidence
undermining his conviction, only expert opinion that could be
challenged under cross-examination if presented at trial, Abbott said
in briefs.
In addition, Abbott said, the prosecution' s case against Swearingen
was convincing: He was the last person seen with Trotter, whose
autopsied stomach contained potatoes, which she ate for lunch the day
she disappeared. The panty hose link Swearingen to the crime, and
Swearingen wrote a letter from jail — in Spanish to divert police
attention to another man — that presented a plausible narrative for
the killing.
Swearingen's lawyer, joined by the Innocence Project in New York,
says he believes he has met the legal definition for an innocence
claim: that it is unlikely a reasonable juror would convict him in
light of the new evidence.
"Someone else had that girl's body, dead or alive, and threw her in
the forest. And that someone wasn't Larry," Rytting said.
Swearingen would be the fourth Texan executed this year.
clindell@statesman.com; 912-2569
Find this article at:
Four pathologists back death row inmate's innocence claim
JANUARY 15, 2009
Estimating false convictions: Thousands of Texas prisoners are likely
innocent
The string of DNA exonerations witnessed in recent years has made
everyone in the justice system aware that more innocent people are
convicted of crimes than anyone previously thought. But what
percentage of total convictions are false ones?
This is a difficult question because it's hard to find an accurate
denominator for comparison.
Nobody thinks every innocent person has been identified through DNA
testing, and indeed no biological evidence exists to test in the vast
majority of criminal cases. So even though we know 39 Texans have
been exonerated by DNA, we don't know what percentage of criminal
convictions overall are false.
One of the few datasets that generates a statistically viable
denominator comes from capital murder cases, for which a new study
from Michigan State provides a new, national calculation:
Among defendants sentenced to death in the United States since 1973,
at least 2.3 percent—and possibly more—were falsely convicted, said U-
M law professor Samuel Gross in a study co-authored by Barbara
O'Brien, a professor at Michigan State University College of Law.
If defendants who were sentenced to prison had been freed because of
innocence at the same rate as those who were sentenced to death,
there would have been nearly 87,000 non-death row exonerations in the
United States from 1989 through 2003, rather than the 266 that were
reported, the study said.
"The main thing we can safely conclude from exonerations of falsely
convicted defendants is that there are many other false convictions
that we have not discovered," said Gross, whose research has focused
on the death penalty, false convictions and eyewitness identification.
Since 1989, nearly all exonerations in the United States fall into
three categories: rape convictions, because of post-conviction DNA
testing; murder convictions, and especially death sentences, which
are subjected to much more detailed post-conviction reinvestigation
than other convictions; and a few groups of false drug and gun
possession convictions that were produced by concerted programs of
police perjury that later unraveled.
As result, researchers know little about false convictions among
crimes of violence other than murder or rape, even though false
convictions for robbery could greatly outnumber those for rape and
murder. And researchers know next to nothing about false convictions
for other types of crimes, such as property crimes, misdemeanors and
white collar crimes.
The exoneration rate in Texas for capital murder convictions is
slightly lower than in this national study.
Another dataset that lends itself to statistically valid innocence
estimates come from DNA exonerations. In Texas, 3.3% of cases solved
by DNA evidence resulted in exonerating convicted defendants.
So let's guess that the false conviction rate in Texas is somewhere
between 2.3-3.3%: With around 155,000 prisoners, that would mean
between 3,500 and 5,000 or so current Texas prison inmates were
falsely convicted.
Another 10-15,000 falsely convicted people are on the probation
rolls, this data implies - perhaps even more since innocent people
may be more likely to accept a plea for probation than risk
incarceration for something they didn't do.
That's a helluva lot of folks.
Thousands of Texas prisoners are likely
innocent
Texas must do more to free the innocent, Dallas DA Craig Watkins
tells fellow prosecutors
January 14, 2009
By EMILY RAMSHAW
eramshaw@dallasnews.com
The Dallas Morning News
AUSTIN — Dallas County District Attorney Craig Watkins defended
himself against prosecutor critics today, saying his tactics to right
wrongful convictions should be embraced statewide.
Speaking before the annual meeting of the Texas District and County
Attorneys Association, Watkins acknowledged his strategy of
overturning others' detective work hasn’t won him any popularity
contests.
But Watkins -- the state’s first elected black district attorney and
Dallas County’s first Democratic district attorney in nearly two
decades -- said he won’t apologize for seeking justice through his
DNA-focused “conviction integrity unit." Justice, he said, is far
more important than achieving or protecting a high conviction rate.
“This is not to shine a disparaging light on you,” Watkins told the
hundreds of prosecutors in the audience. “But I feel an obligation to
be honest, and to tell everyone, that in order for this system to
progress we have to focus on our failures.”
Exonerating innocent people has been Watkins’ focus since he took
office two years ago, gaining him a reputation as, in his phrase, the
“hug-a-thug DA.” Dallas County, where district attorneys long held a
reputation for winning convictions at all costs, has had more
exonerations than any other U.S. county.
Though Watkins received healthy applause, some prosecutors said
afterward his “new ideology” is already common practice in their
counties –- or that his approach calls for far more money than they
have in their budgets.
“It’s already unspoken for us,” said Greg Buckley, assistant district
attorney in Childress County. “I appreciate him wanting to tell us to
do the right thing. But it may be that he just has more problems with
it in his department than we do.”
After his speech, his first to a large group of fellow prosecutors,
Watkins said those who claim their counties are immune are "not being
truthful."
"These problems are spread throughout the country," he said. "This
was my opportunity to give them a little understanding."
Texas must do more to free the innocent
January 13, 2009
Expert: Yogurt Shop Case a Prime Example of False Confessions
At a meeting this morning of the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit, University of San Francisco academic Richard Leo expounded on his research into police interrogations and the causes of false confessions.
What follows is a recap from my notes:
False confessions are exceptions, said Leo, not the norm, but they are caused by flaws in policing techniques that make them much more likely to happen. As has been discussed previously on Grits, most police interrogation training in the United States is based on the so-called "Reid method," which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.
Police tactics that encourage false confessions include erroneous behavior analysis and moving too quickly from the "interview" to the "interrogation" phase.
Much of the behavioral analysis taught by Reid and Associates amounts to "faux psychology," said Leo, about how guilty and innocent people behave that doesn't stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become "human lie detectors," but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.
To be clear: A police interview is a relatively non-confrontational, information gathering process, where police are trained only to use interrogation methods on those they believe are guilty. Interrogation is a "guilt presumptive" process in which officers may lie, yell, intimidate, threaten, offer inducements, or otherwise manipulate suspects to secure a confession.
Leo insisted that police interrogation tactics are the primary cause of false confessions, but thinks that a secondary cause has to do with individual personality types. At risk individuals include juveniles, the mentally retarded, the mentally ill, people who are highly suggestible or compliant, or who have poor memory or high anxiety.
Most false confessors, he said, are "mentally normal" individuals, but those in a risk group are more likely to falsely confess.
There are three types of false confessors, said Leo: Voluntary, Compliant, and Persuaded. To use a current, local example, all three of these false confession types were in play in Austin's Yogurt Shop murders.
Voluntary false confessions typically occur in high profile cases when people come forward of their own volition to confess to the crime. This is a surprisingly common phenomenon -in Austin's Yogurt shop murders, some 50 different people confessed to the crime.
A "compliant" confesson occurs when a suspect confesses at the end of a long, grueling interrogation in order to put an end to the stress and make the interrogation stop. In the Yogurt Shop case, the confession offered by defendant Robert Springsteen falls into this category, he said.
The "persuaded" confessor actually comes to temporarily believe, or at least accept, that they must have committed the crime even when they really didn't. Leo said that Michael Scott's confession in the Yogurt Shop case is a classic example of this, and that he believes Scott is actually innocent with "every bone in my body."
Quite a few "persuaded" confessors have had their convictions overturned by DNA evidence, said Leo, pointing out that DNA evidence failed to corroborate Scott and Springsteen' s Yogurt Shop confessions.
In summary, Leo says there are three basic "pathways to false confessions."
Police may make "misclassification" errors in which officers misjudge guilt on the front end and mistakenly initiate interrogations.
They might make a "coercion" error in which psychological manipulation techniques backfire and intimidate innocent suspects to confess.
And police also can make a "contamination" error, in which they inadvertently feed suspects information that later fills out the details of a confession, but which came from the officer, not the defendant.
When it comes to public policy reforms to prevent false confessions, Leo thinks recording interrogations is the best available tool. Generally, he said, police tend to oppose recording interrogations on the front end, but once they've fully implemented the practice, "they love it."
While some false confessions still occur when they're recorded (like Scott and Springsteen's), recording creates a reviewable record, eliminates "swearing contests" about what was said in the interrogation room, and protects police from false allegations of misconduct.
Ten states already require recording interrogations, he said. In two of them - Minnesota and Alaska - courts issued the requirement, while elsewhere it was enacted through legislation. Wisconsin's statute, said Leo, is the best version currently available and should be considered a model.
Some states require recording in all felonies, some only for homicides, and the Wisconsin legislation allows exceptions for field interviews and when exigent circumstances prevent recording.
Rep. Jim McReynolds asked about funding, to which Leo replied that this is an often-raised concern by police but their objections can be easily overcome.
These days recording is "not super expensive," he said, and digital storage has become especially cheap.
What's more, recording saves the state money at future points in the process, though such savings won't necessarily accrue to the police budget. Overall, recording more than makes up for the minimalist expense by saving time in the courts, mostly because it facilitates plea bargains and reduces haggling over whether confessions are admitted. The recording expenditure more than pays for itself when you consider how much it costs to pay lawyers, judges, bailiffs, etc., for suppression hearings.
While Leo said recording interrogations would be his top recommendation for reducing false confessions, he mentioned several other approaches worth recording here:
+Expanded police training on the causes of false confessions and how to avoid them.
+Create a post-confession review team when a confessor falls in an at-risk group.
+Jury instructions where confessions are the primary evidence.
+Allowing expert witnesses in court to dispute confessions.
Those last two on the list are Leo's least recommended options, he said, because they occur so late in the process the damage has mostly been done. He preferred approaches that might catch or prevent false confessions earlier in the process, long before the defendant ever gets to trial.
Posted by Gritsforbreakfast at Labels: confessions, DNA, Innocence, Police
Jan. 10, 2009
The Importance of the Innocence Project
The Innocence Project is an organization that really deserves to be more widely recognized for the vital role they play in this country. Here's a list of the people they freed from prison in 2008 by using DNA evidence to show that they were innocent of the crimes they'd been convicted of. The list is below the fold:
Michael Blair was convicted and sentenced to death in Texas based on improper forensic testimony and several eyewitness misidentifications. He served nearly 14 years on Texas death row for a murder he didn't commit.
Kennedy Brewer was sentenced to death in 1995 for a child murder he didn't commit. He was freed when DNA testing secured by the Innocence Project led to the identity of the real perpetrator. His exoneration also led to critical reforms on handling evidence and state oversight for autopsies.
Dean Cage was exonerated by DNA testing in Chicago after spending 12 years in prison for a rape he didn't commit.
Charles Chatman served 27 years in Texas prison for a rape he didn't commit before DNA testing secured by the Innocence Project of Texas set him free.
William Dillon served 26 years in a Florida prison before DNA testing led to his release. He was convicted based on an eyewitness misidentification, testimony from a jailhouse snitch and unreliable testimony of a police dog handler.
Nathaniel Hatchett was 17 years old when he was arrested for a carjacking and rape he didn't commit. He served 10 years in Michigan before he was cleared.
Arthur Johnson spent 16 years in Mississippi prison for a rape he didn't commit before DNA testing won by the Innocence Project New Orleans led to his release.
Rickey Johnson served 25 years in Louisiana prison for a rape he didn't commit before the Innocence Project secured DNA testing that proved his innocence. The test results pointed to the identity of a Louisiana inmate who was convicted of committing another rape in the same neighborhood after Johnson was convicted.
Robert McClendon was exonerated by DNA in August in a joint project between the Ohio Innocence Project and the Columbus Dispatch. He spent 17 years in Ohio prison for a crime he didn't commit before he was cleared.
Thomas McGowan served 23 years in Texas prison for a rape he didn't commit before DNA testing obtained by the Innocence Project proved his innocence. He was convicted based on a faulty identification procedure.
Steven Phillips was exonerated in October after serving more than two decades in Texas prison for a series of rapes he didn't commit. DNA testing obtained on Phillips' behalf by the Innocence Project pointed to the identity of the real perpetrator of the crime.
Ronnie Taylor was convicted in 1993 of a rape he didn't commit based on faulty forensic tests at the troubled Houston crime lab. His exoneration became official in January, just days after he married his longtime fiancee Jeanette Brown. The couple now lives in Atlanta.
Patrick Waller served more than 15 years in Texas prison for a rape he didn't commit. He is the 21st person cleared by DNA testing in Dallas County.
Joseph White, exonerated in November, was the 1st person cleared by DNA testing in Nebraska history. His 5 co-defendants are awaiting pardons from the governor in order to be fully exonerated.
This is why I am opposed to the death penalty. I don't oppose it on moral grounds. I have no moral problem with the state putting to death a murderer. I oppose it purely on practical grounds - our legal system simply cannot offer the certainty of guilt to justify a form of punishment that can never be reversed. Too many innocent people are put to death.
And no, the fact that we now have DNA evidence does not change that analysis. It certainly makes things better, but there are lots of cases without such evidence and many more cases where it is mishandled or where the accused has no access to get it tested. Let us all be thankful that groups like the Innocence Project have managed to right so many miscarriages of justice. But the fact that there are so many that need to be righted in the first place should give us pause.
(source: Ed Brayton, The Axis of Logic)
Jan. 05, 2009
EDITORIAL: Innocence funding
The alleged $50 billion Ponzi scheme run by Bernard Madoff, once a
well-respected Wall Street investor, has claimed many casualties —
individuals as well as large nonprofit institutions.
A Texas organization that has done an incredible job of helping
victims of our flawed criminal justice system has fallen victim
itself after learning that its major benefactor’s funds had been
"managed" by Madoff.
The Innocence Project of Texas, which has exonerated more than 30
wrongly convicted people through DNA testing, received a $450,000
grant last year from the JEHT Foundation of New York to pay for the
testing expenses. The foundation announced that because of its losses
through Madoff investments it would suspend grants and shut down at
the end of this month.
Money already received by the Innocence Project will remain with the
organization, which operates programs at Texas Tech University, the
University of Texas at Austin, the University of Houston and Texas
Southern University. But there are many more cases to be investigated
and each DNA test costs $4,000 to $5,000.
Innocence Project officials have applied for funding from other
nonprofit foundations in the state, including one associated with the
State Bar of Texas. By all means the state bar should support the
program financially, but as one attorney with the project says, the
responsibility of helping to clear these innocent people lies with
the state of Texas itself.
Jeff Blackburn, chief counsel for the Innocence Project of Texas at
Texas Tech, told the Star-Telegram that the state Legislature could
address this problem by spending a small fraction of the $2.3 billion
it allocates to operate prisons.
"The prison system is asking the Legislature to give it $500 million
more this year for increased salaries to maintain its current level
of operations," Blackburn said. "One five-hundredth of that amount —
$1 million — would guarantee that the innocence work in this state
could go forward."
We agree. That is a small price to pay to free even one innocent
person. In Dallas County alone in the past few years, 19 men have
been exonerated by DNA testing.
These wrongly convicted cases are a blot on the criminal justice
system in this state, a blemish that is not likely to go away anytime
soon. These injustices must be corrected, and the state should join
in that effort with the dedicated individuals and nonprofit groups
that have been working to rectify such despicable errors.
Innocence Fundings
The Poor Are Enslaved In American Prisons
By Nancy Lockhart, M.J.
January 1st, 2009
America turns its head to those who are incarcerated, especially
those considered as brutal and thoughtless. The average American
believes that the justice system is perfect and would never
incarcerate those who are innocent. This line of logic is grossly
inconsistent with reality, as thousands of formerly incarcerated
inmates have been freed by DNA-evidence only. Our justice system is
failing day by day, minute by minute. One wrongful conviction is one-
too-many, and numbers are escalating well into the tens of thousands.
Adequate legal representation is available to those who are able to
pay; those who cannot, however, suffer. Consequently, inadequate
legal representation mostly leads to an inevitable unjust verdict.
As a legal analyst, I’ve observed the legal processes in depth over
the years, and watched those with money, resources and networks
receive justice within a system allegedly designed to serve all. I’ve
observed the poor and unknowledgeable suffer, as finances, resources,
and networks are very limited or void!
It is our right under the Constitution to petition our courts for
justice. What does this say for a Nation of life, liberty and the
pursuit of happiness — Inalienable Rights?
Slavery Is Alive and Flourishing In America
Poor people are enslaved in America’s Prison Industrial Complex.
Indigent legal representation unfolds as inexperienced, underpaid and
overworked lawyers provide inadequate representation to the poor –
resulting in wrongful convictions; thus, enslavement to the prison
industrial complex increases. The use of felonious, unethical, and
often, illiterate witnesses is an increasing vehicle for wrongful
convictions. The financially disempowered are the burden barriers for
society’s ills, but those with money and corporate networks never
experience this enslavement.
As the poor suffer, prosecutors and law enforcement officers are
becoming even more corrupt in their policies. America incarcerates
more individuals, especially minorities, than any other nation in the
world. Wrongful convictions are on the rise and corruption is
escalating. Slavery is alive and flourishing in America. In my years
of service to the community, I’ve come across two distinct cases that
yield inconsistencies from the onset.
The case of Ali Khalid Abdullah is one of them. Ali Khalid Abdullah
was released from prison on August 1, 2008 and has had multitudes of
problems dealing with a new society, ever since. Ali describes his
experience as “being freed from Prison but not free.” Ali served 19
years in prison for taking action against a drug dealer who had
molested an 11-year old. How does a government release prisoners with
no assistance, financial or social, and expect positive results? My
opinion is, they do not. They expect and hope for recidivism as it is
the key to maintaining The Prison Industrial Complex.
The other case is that of two sisters, Jamie and Gladys Scott. In
1994, Jamie and Gladys Scott were wrongfully convicted in the state
of Mississippi. A corrupt sheriff used coercion, threats, and
harassment to convict the Scott Sisters of armed robbery. The case of
the Scott sisters is an intriguing one, with transcripts stating that
perhaps 9, 10, or 11 dollars was stolen, at most.
It’s important to note that no one was murdered or injured.
One of the state’s witnesses, a 14 year old, testified that he did not have an attorney present when signing a statement prepared by the sheriff. Jamie and
Gladys Scott have served 14 years of double-life sentences, thus far.
That’s Double Life Each! The absurdity of their sentencing reaches
new heights with the reality that neither of the Scott sisters had
prior convictions. Sadly, the cases of Mr. Abdullah and the Scott
sisters are becoming an accepted phenomenon in our society.
The Prison Industrial Complex is the 21st century slave master in the
minority community, and unless we are made aware and trained to take
action, the enslavement will continue to fester more and more rapidly
in years to come.
Don’t Wait Until It Happens To You!
For more on the case, see Jamie & Gladys Scott and Black Commentator.
Nancy Lockhart, is a legal representative and community organizer,
living in South Carolina. She has worked tirelessly - for no pay - on
the case of two Black females illegally charged and sentenced to
double life.
She can be reached at: nancylockhart@gmail.com.
Read other articles by Nancy.
The Poor Are Enslaved In American Prisons
Study of Dallas police witness identifications on tap
January 1, 2009
By JENNIFER EMILY
The Dallas Morning News
jemily@dallasnews.com
A long-delayed study of Dallas Police Department witness
identifications, two years in the making, could begin this month.
Traditionally, a detective shows a witness a photo lineup consisting
of at least six pictures at one time. The study would incorporate a
method known as the "sequential blind lineup" to help reduce
misidentification of suspects. In this method, photos are shown to a
witness one at a time by someone who does not know which picture is
the suspect.
Dallas County has had 19 DNA-based exonerations – more than any
jurisdiction in the nation since 2001 when a state law began allowing
post-conviction DNA testing. All but one of the DNA exonerations were
based on faulty eyewitness testimony, according to an investigation
by The Dallas Morning News published in October.
Misidentifications have been cited as a key factor in an estimated 75
percent of the 220 wrongful convictions exposed by DNA testing
nationwide since 1989.
Dallas police, the arresting agency in 13 of the 19 Dallas County
exonerations, hopes the study will help determine the best method to
keep witnesses from making the wrong choices in a photo lineup.
"We hope to determine what is the best practice and implement
policies accordingly," Dallas Police Assistant Chief Ron Waldrop said.
Dallas would become just the eighth police agency in Texas –
including Richardson, Lewisville and Haltom City, locally – to use
the sequential blind lineup, according to a survey by nonprofit
reform group The Justice Project.
Richardson police began using sequential blind lineups after the city
had a DNA exoneration in April. Thomas McGowan was incorrectly
selected from a simultaneous lineup after a woman was sexually
assaulted. He served 22 years in prison after being wrongly convicted
in the 1985 burglary and rape.
Beginning research
The Urban Institute, a nonpartisan economic and social policy
research group based in the nation's capital, is in charge of the DPD
study. Terry Dunworth, who is overseeing it, said the research should
begin early in 2009 and continue through most of the year.
The delays, police said, were caused by funding issues and then
waiting on computer equipment. Now, police say they are trying to
resolve software problems and hope to simultaneously begin the study
with Washington, D.C., police. Officials are trying to work out the
protocols between the two departments to avoid any additional delays.
At least 800 lineups must be a part of the study, but only detectives
in assaults and robberies will use the study's methods in their
cases, said Lt. David Pughes, a Dallas officer working on eyewitness
identification procedures.
Pughes said detectives will load six photos into laptops. One picture
will be that of the suspect; the other five will be "filler" pictures
of people with similar features.
A computer program will randomly determine whether witnesses should
view the lineup simultaneously or sequentially. Then, the computer
will decide whether the lineup will be conducted by the computer or a
detective.
Different tactic
Gary Wells, an Iowa State University psychology professor and expert
on eyewitness identification, said he developed the sequential blind
method with a student in the mid-1980s. It was created to address the
problem of a witness simply picking out the photo that looked most
like the perpetrator when all pictures were viewed at the same time.
Wells said that published experiments in controlled settings
typically show that viewing pictures sequentially results in fewer
misidentifications when the perpetrator is not in the lineup.
"Presumably, this is because the sequential procedure prevents the
witness from merely comparing one lineup member to another and
picking the person who looks most like the perpetrator," he said.
One drawback of the sequential method, however, is that witnesses are
less likely to select the right person when the culprit is in the
lineup than when viewing the photos simultaneously, Wells said.
"This pattern of results is a classic trade-off in which reducing the
rate of one type of error, mistaken identifications, can increase the
rate of another type of error, failure to identify the culprit," he
said.
Conflicting answers exist about whether the sequential blind method
is best.
A 2006 analysis in Minnesota conducted by several police agencies
found the method increased accuracy.
But an Illinois study the same year concluded the sequential method
caused the wrong person to be picked more often than viewing lineups
simultaneously. Experts, including Wells, say the Illinois study was
flawed because the lineups were not conducted uniformly or randomly.
He explained that simultaneous photo lineups were always conducted by
detectives and sequential lineups were conducted by an unbiased
administrator."The Dallas study," Wells said, "will be an attempt to
do correctly the experiment that was done incorrectly by the Chicago
Police Department.">p>
Different methods
Traditional photo lineups
Background: Photo lineups gained popularity after the U.S. Supreme
Court ruled in 1967 that suspects have a right to have their attorney
present when live lineups are conducted. Attorneys are usually not
present when a photo lineup is conducted.
How they work: Typically, a detective shows a witness at least six
pictures of possible suspects at one time.
Shortcomings: Critics say physical and verbal cues from the
detectives conducting such a lineup can taint the results, even if
the detectives are not deliberately trying to do so. Using a booking
photo of a suspect from a past crime (with height markets and ID
numbers across the chest, for example) can also suggest guilt in the
recent crime.
Sequential blind lineups
Background: Gary Wells, an Iowa State University psychology professor
and expert on eyewitness identification, developed the sequential
blind method with a student in the mid-1980s.
How they work: Photos are shown to a witness one at a time by someone
who does not know which picture is the suspect.
Strengths: Experiments show that viewing pictures sequentially
results in fewer misidentifications when the perpetrator is not in
the lineup, probably because the witness isn't just comparing one
person to another and picking the person who looks most like the
criminal.
SOURCE: Dallas Morning News research
Study of Dallas police witness identifications on tap
