Innocence

RECENT LEGISLATIVE ACTIVITY: Bill Introduced in Texas Aims to Restrict Informant Testimony in Death Penalty Cases

Texas Representative Harold Dutton recently filed a bill that would prevent prosecutors in death penalty cases from using testimony from informants or from alleged accomplices of the defendant if the testimony was obtained in exchange for leniency, immunity or other special provisions. If passed, the bill would make Texas among the first states to ban such testimony. Alexandra Natapoff, a professor at Loyola of Los Angeles Law School, said, “The use of criminal informants is a massive source of error in our most serious cases…. Criminal informants have strong incentives to lie and very few disincentives to lie, because criminal informants are almost never punished.” Anthony Graves, the most recent death row inmate to be exonerated in Texas, was condemned primarily because of the testimony of an alleged accomplice, who later admitted to committing the crime alone.

Texas Releases Partial DNA Test Results in Hank Skinner Case

The Texas Attorney General's Office has released partial results of DNA testing long requested by attorneys for death row inmate Hank Skinner. Although the results are incomplete and reveal the presence of another unknown person, the state is claiming the tests confirm Skinner's involvement in the murder of his live-in girlfriend, Twila Busby, and her two adult sons in 1993. Skinner had been seeking additional DNA testing since 2000 even while execution dates had been scheduled, but his requests had been denied until the defense attorneys and the state finally reached an agreement in 2012. According to a statement from Skinner's attorney, Rob Owen, "We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner’s guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review," he said. A jacket found at the scene of the crime containing blood spattering was lost by the police and DNA testing could not be done on this piece of evidence.  DNA testing after conviction has contributed to 300 exonerations in the United States, including 18 from death row.  There have been 44 DNA exonerations in Texas alone.

Texas Court of Inquiry to Examine Prosecutorial Misconduct

A Texas Court of Inquiry is set to review allegations of prosecutorial misconduct by former District Attorney Kenneth Anderson, who withheld critical information in a first-degree murder case in Williamson County. Although prosecutorial misconduct has played a role in many wrongful convictions, including death penalty cases, such an oversight hearing is unusual. Sam Millsap, the former District Attorney of Bexar County, Texas, said, "I’d love to be able to tell you I am the only former elected prosecutor in the country who finds himself in the position of having to admit an error in judgment that may have led to the execution of an innocent man, but I know I am not." If the Court finds that Anderson's alleged misconduct rises to the level of a crime, the case may be referred to a grand jury. Anderson, who is now a Texas judge, presided over the prosecution of Michael Morton (pictured), who was convicted and sentenced to life for his wife's murder in 1987. Evidence suggesting Morton's innocence, including a bloody bandana found near the crime scene, was kept from the defense. DNA testing of the bandana led to Morton's exoneration in 2011, and implicated another man who is also suspected of subsequently murdering another woman. Anderson's successor as D.A., John Bradley, who fought against allowing DNA testing in Morton's case, has said he now believes he was wrong, adding, "We shouldn’t set up barriers to the introduction of new evidence." 

EDITORIALS: Preserving Independent Funding for Death Penalty Representation

A recent editorial in the Miami Herald applauded a court decision finding that the costs of represening defendants in Florida death penalty cases should be kept separate from the judges’ annual budget. A state judge held it would be unconstitutional to have judges making decisions about attorneys' fees when the money for such expenses comes from the judges' own resources. The editorial stated, "We depend on the court system to dispense justice—period. Not justice on a budget, not justice on the cheap, not justice with 'ka-ching' in the back of a judge’s mind." The costs formerly came out of general state revenue. Death penalty attorney David Markus said the law would have made “judges think twice about paying a lawyer, knowing that he or she has to also think about paying his secretary or buying copier paper.” The editorial called on lawmakers to heed the recommendations of the Florida Innocence Commission, which made several recommendations to correct the high rate of wrongful convictions in the state. The editors wrote, “Lawmakers truly interested in reform would take the recommendations seriously, even though they require more-adequate funding. Instead, the Legislature has steadily chipped away at courts’ budgets for the past six years, while the volume of cases has increased. That’s a stumbling block to real reform.” Florida leads the country in exonerations from death row, with 23 wrongful convictions overturned since 1973.  Read full editorial below.

Family of Man Executed in Texas Seeks Posthumous Pardon

The family of Cameron Todd Willingham announced they will petition the Texas Board of Pardons and Paroles to grant him a posthumous pardon based on new evidence that has emerged since his execution in 2004. Willingham was sentenced to death for the murder of his three children in a housefire in 1991. At his trial, investigators testified that Willingham had intentionally set the fire, but later developments in the science of fire investigation have led experts to believe the fire was accidental. The other evidence presented at Willingham's trial included the testimony of a jailhouse informant who later recanted his statement that Willingham admitted to the crime. The family's petition states, "[S]ince his trial, scientific advances have shattered every assumption underlying the testimony of the two fire investigators who declared to the jury and the court that Willingham had set the fire that killed his children. In fact, today, no credible arson expert would make such a declaration." In a statement, Willingham's family said, "It was Todd's last wish that we help clear his name. It's time for the state of Texas to own up to its mistake and give Todd the justice he deserves." The Innocence Project in New York has taken the lead in working for Willingham's exoneration.

NEW VOICES: California District Attorney and Veteran Police Chief Now Would End Death Penalty

George Gascon served for 30 years as a police officer, including as a police chief in Arizona and California.  He is currently the District Attorney of San Francisco.  Although he formerly supported the death penalty, he now believes it should be replaced with life without parole. In a recent op-ed in the Sacramento Bee, Gascon wrote: “I have had the opportunity to observe and participate in the development and implementation of public safety policies at every level. I have seen what works and what does not in making communities safe. Given my experience, I believe there are three compelling reasons why the death penalty should be replaced. (1) The criminal justice system makes mistakes and the possibility of executing innocent people is both inherently wrong and morally reprehensible; (2) My personal experience and crime data show the death penalty does not reduce crime; and (3) The death penalty wastes precious resources that could be best used to fight crime and solve thousands of unsolved homicides languishing in filing cabinets in understaffed police departments across the state." He concluded the death penalty is "fatally flawed" and "broken beyond repair.”  Read the full op-ed below.

INNOCENCE: Louisiana Death Row Inmate Exonerated Through DNA After 15 Years

On September 28, Damon Thibodeaux was freed from death row in Louisiana after an extensive investigation, including DNA testing and the cooperation of Jefferson Parrish District Attorney Paul Connick. Thibodeaux was sentenced to death for the 1996 rape and murder of his cousin. He at first confessed to the attack after a nine-hour interrogation by detectives. He recanted a few hours later and claimed his confession was coerced.  In releasing Thibodeaux, Connick said, "I have concluded that the primary evidence in this case, the confession, is unreliable. Without the confession the conviction can't stand, and therefore in the interest of justice, it must be vacated." Thibodeaux is the 141st person to be exonerated and freed from death row since 1973, and the 18th person released through DNA evidence. The Innocence Project in New York, which worked on his case for years, counts Thibodeaux as the 300th exoneration achieved through DNA testing in the U.S. (capital and non-capital cases). Barry Scheck, a founder of the Innocence Project, said, “The 300th exoneration is an extraordinary event, and it couldn’t be more fitting that it’s an innocent man on death row who gave a false confession. People have a very hard time with the concept that an innocent person could confess to a crime that they didn’t commit. But it happens a lot. It’s the ultimate risk that an innocent man could be executed.” 

INNOCENCE: Award-Winning Play About Former Death Row Inmates Returns

This Fall the Culture Project is hosting a limited engagement of its award-winning production, The Exonerated. The play is a groundbreaking dramatization of the real-life stories of six death row inmates who were freed after being cleared of their capital charge. The production, which premiered a decade ago and traveled the country, is culled from interviews, letters, transcripts, case files, and court records. Former U.S. Attorney General Janet Reno described The Exonerated as follows: "What has been done tonight through this play is one of the most extraordinary events I have ever seen and it will do more to promote justice than any literary efforts I have seen. The play will feature a rotating cast of high-profile actors, including Stockard Channing, Brian Dennehy, Steve Earle, John Forté, K’naan, Delroy Lindo, Lyle Lovett, Chris Sarandon, and Brooke Shields. The presentation will also include a series of "Talk-Backs" with leading criminal justice experts, including Christina Swarns, NAACP Legal Defense Fund (October 16), Shari Silberstein, Executive Director of Equal Justice USA (October 24), and Stephen Bright, President, Southern Center for Human Rights (October 31). The Exonerated will run for seven weeks, beginning on September 15, at the Culture Project’s 45 Bleecker Street theater.

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