OP-ED: "Changes are long overdue for Texas' clemency process"

Michael Morton (pictured), who was released after 25 years in prison for a crime he did not commit, and Barry Scheck, co-director of the Innocence Project, called for reforms in Texas's clemency process. In a recent op-ed in the Houston Chronicle, Morton and Scheck highlighted the case of Cameron Willingham, who was executed in 2004 despite serious doubts about his guilt.  According to the authors, it is now understood that investigators who believed that Willingham committed arson were mistaken.  They also noted that a recent investigation uncovered that a recantation made by a witness who initially claimed that Willingham confessed to the crime was never made available to Willingham's lawyers or placed in the court file. Morton and Scheck wrote, "The clemency process that failed to discover Willingham's innocence in 2004 remains essentially unchanged. A recent study by a committee of the American Bar Association found that the Board of Pardons and Paroles' consideration of capital cases is woefully inadequate - Texas does not meet any of the eleven minimum guidelines for an adequate process." They concluded, "No one can endorse a system that allows the execution of an innocent person. And we need to do everything in our power to make sure that the Board of Pardons and Paroles, the last stop in our criminal justice system, has the resources and the procedures necessary to do its job." Read full text of the op-ed below.

BOOKS: "Grave Injustice: Unearthing Wrongful Executions"

Grave Injustice, a new book by Richard Stack, presents a critical examination of the death penalty through profiles of individuals who were executed but may have been innocent. Their stories are used to illustrate flaws in the death penalty, including faulty eyewitness identification, government misconduct, and ineffective representation. In examining these problems, Stack writes that the possible end of the death penalty "will not be based on its immorality...but on its poor track record... and its overwhelming lack of cost-effectiveness." In the second half of the book, the author profiles prominent individuals involved in this issue, including Sr. Helen Prejean and Martina Davis-Correia, the sister of Troy Davis, who was executed in 2011. Reviewer Mary Kelly Tate, Director of the Institute for Actual Innocence, said, "Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension."

POSSIBLE INNOCENCE: Ohio Court Dismisses Charges And Bars Retrial of Former Death Row Inmate

On September 19 the Ohio Court of Appeals affirmed a lower court's dismissal of all charges against Thomas Keenan, a former death row inmate sentenced to death for a 1988 murder. The appeals court also barred the state from retrying Keenan. His co-defendant, Joseph D'Ambrosio, was fully exonerated in 2012 based on similar state misconduct to that found in Keenan's trial. Keenan's conviction was overturned by a U.S. District Court in 2012 because the state had withheld vital evidence from the defense. After spending nearly 20 years on death row, Keenan was released, but the state said it intended to retry him. However, the trial court found the state's misconduct so offensive that it precluded any further prosecution, noting that "in the interest of justice and fairness, the harm done to defendant Keenan has been so egregious that this is the extraordinary case where the court has no other option but to grant the motion to dismiss." In upholding that decision, the Court of Appeals said, "The degradation of this case began 25 years ago, when the desire to obtain a conviction overwhelmed the state's responsibility to seek the fullest truth of that day in September 1988."

Four Decades of Helping to Free the Innocent

Rob Warden, who is stepping down as the executive director of the Center on Wrongful Convictions, recently spoke about the work of finding and freeing innocent defendants. Warden helped exonerate almost 60 people, including many who had been sentenced to death. He noted that some of the success of the Center was the result of timing: "Part of it was the fortuitous advent of DNA forensic technology, which suddenly showed that many people had been wrongfully convicted. And that, in turn, gave credence to the non-DNA cases where there was persuasive evidence of wrongful convictions. It just changed the momentum." He said that exposing flaws in the justice system has been one of the Center's most important contributions: "[V]irtually nobody believed that people would confess to crimes they hadn't committed. We have been extremely important in exposing the phenomenon of false confessions and the psychological phenomena that lead to it. And we've exposed the fallacies of evidence that were often used to convict people, including misinterpretations of forensic results and the use of so-called jailhouse snitch testimony. People never really took that seriously until we started showing that they were leading to serious miscarriages of justices."

Texas Inmate Facing Execution Is First to Ask for Review Under New Law

UPDATE: Avila's execution date has been stayed. Attorneys for Rigoberto Avila have requested an evidentiary hearing under a new law passed in Texas that allows defendants to challenge their convictions if they were gained through outdated forensic techniques. His case will be the first death penalty case in the state to be considered by the courts under this new legislation. Avila, a Navy vetern, was convicted of murder in El Paso in 2001 for the tragic death of a 19-month-old infant. He is scheduled to be executed on January 15, 2014. He has consistently maintained his innocence and wants to introduce a biomechanical analysis of the cause of death and the testimony of a forensic pathologist, tending to show that the infant's death was an accident. “Finality and certainty is important," said Cathryn Crawford, one of Mr. Avila’s lawyers, "but we have to also have a criminal justice system that is flexible enough to take into account when we have scientific advancements and to allow people like Mr. Avila to have their day in court.”

INNOCENCE: Faulty Practices Raise Doubts About Accuracy of Crime Labs

A recent article in the ABA Journal drew attention to problems in crime labs across the country that have resulted in  wrongful convictions, including some in death penalty cases. Investigations in many states and of the national FBI lab revealed a lack of written procedures, improper mixing of samples from different cases, improper testimony, and even falsification of test results. An Oklahoma City chemist who testified in 23 death penalty cases was later fired for giving false or misleading testimony. Twelve of the defendants in whose cases she had testified were executed. In North Carolina, an independent audit by two retired FBI agents showed that analysts at the state lab had regularly withheld or distorted evidence in more than 230 cases over a 16-year period, including three cases that resulted in executions. Some experts are pushing for better regulation of forensic labs. The National Academy of Sciences presented 13 recommendations in a 2009 report, including calling for the creation of an independent national institute of forensic science, and enforcement of accreditation and certification standards. Very few of the Academy's recommendations have been implemented. Paul Giannelli, a law professor at Case Western Reserve University, who has studied crime labs for 20 years, said forensic labs should be held to the same standards as clinical labs that conduct medical tests. "They're both a matter of life and liberty," he said.

INNOCENCE: The Role of Journalists in Freeing An Innocent Man

The fortuitous investigation of a case by persistent journalists, rather than the workings of the limited appellate process, has led to the exoneration of a number of innocent individuals. Maurice Possley (l.), a former reporter for the Chicago Tribune, recently wrote how he and fellow-journalist Steve Mills (r.) helped free Daniel Taylor (c.) in Illinois, where he had spent more than 20 years in prison. In 2001, the reporters published a story exposing the false and coerced confession that led to Taylor’s conviction, but it would be more than a decade before Taylor was freed. Evidence showed that Taylor was arrested for fighting and was in jail on the night of the murders in question. Eventually, the state discovered documents in the prosecutor’s files that had remained hidden for 19 years indicating police officers were certain Taylor was in jail and could not have committed the crime. Taylor's is among the 1,200 wrongful convictions listed in the National Registry of Exonerations. DPIC’s Innocence List includes 142 death row inmates who have been exonerated and freed. Such investigatory reporting contributed to Illinois's decision to abolish the death penalty in 2011.

RECENT LEGISLATION: Texas Law To Protect the Innocent May Curtail Death Penalty

A new Texas law requiring DNA testing of all biological evidence prior to seeking the death penalty could reduce the number of capital cases. District Attorney Billy Byrd of Upshur County noted, "Essentially, every piece of evidence will have to be tested,” he said, which could delay trials more than a year. “Certainly, that will be the case. We will have to deal with certain delays and longer waits,” he added, noting it is not uncommon for DNA evidence to take more than a year to be processed. Nevertheless, Texas Attorney General Greg Abbott (a likely Republican candidate for governor) is a strong supporter of the law, as is Senator Rodney Ellis, Democrat of Houston, who introduced the bill. Abbott believes the law will eventually save the state time and resources, because the necessary testing will be done upfront.