Innocence News and Developments: 2004

Bill Kurtis Describes His Shift on the Death Penalty

A&E television host and well-known investigative journalist Bill Kurtis chronicles his journey from death penalty supporter to capital punishment opponent in his newly released book, The Death Penalty on Trial: Crisis in American Justice. In an interview with the Kansas City Star, Kurtis stated, "Look, I was for the death penalty, but looking at these cases and the rapidly increasing number of exonerations, there are just too many possibilities for error." He went on to observe, "You have a system with too many working parts. We have malpractice in medicine. We don't expect the Yankees to win all their games. And yet we assume the criminal justice system is without error." Kurtis's new book examines two cases of death row exonerees, detailing the errors that led to their wrongful convictions. Through his investigation, Kurtis came to the realization that capital punishment must end because the system cannot guarantee accuracy.
In his call for abandoning capital punishment, he states, "We have two little final obstacles to get over. One is that we have to convince people that life without parole is bad. Worse than killing somebody. And secondly, we have to get over the fact that it's some kind of closure for the families. The only reason the death penalty is still there is that we want to do something for the victims. It's 'closure.' But what if you lose your wife from cancer, or a car wreck? Someone killed in Iraq - what do you do then? It's not closure. It never is." (Kansas City Star, December 16, 2004). See New Voices. See also Life Without Parole and Victims.


Sister Helen Prejean's New Book: The Death of Innocence

In her new book, The Death of Innocents: An Eyewitness Account of Wrongful Executions, Sister Helen Prejean uses her personal experiences as a counselor to those on death row to explore the issue of innocence and the likelihood of executing a wrongly convicted person. The book also traces the historical and legal underpinnings of the death penalty in the U.S. Prejean, who authored the #1 New York Times bestseller "Dead Man Walking," begins her new book by focusing on the cases of Joseph Roger O'Dell and Dobie Gillis Williams, both of whom she believes received unfair trials and probably were innocent. O'Dell was executed in Virginia in 1997 and Gillis was executed in Louisiana in 1999. Prejean was closely involved with each of their cases and accompanied both men to the death chamber. Their cases sparked "The Death of Innocents" and Prejean's closer look at wrongful convictions, inadequate defense, the capital appeals process, race, poverty, and the politics of capital punishment. (Random House, 2005). See Innocence.


Massachusetts' "Foolproof Death Penalty" Idea Achieves Questionable Status

In its annual eclectic collection of ideas from the past year, The New York Times Magazine included the "Foolproof Death Penalty" propsed by Massachusetts Governor Mitt Romney. The Times attempts "to salute the absurdly wide range of human originality" and culls its entries not only from mainstream sources but also from the "tattoo culture and fast food management, horticulture and shoe design." In response to Romney's notion of "error-free capital punishment," Berkeley law professor Franklin Zimring said that the proposed legislation could be "the first effort to write a solely symbolic criminal statute." The magazine notes that the idea has little chance of being adopted, and the governor hasn't even introduced a bill based on the proposal. (The New York Times Magazine, December 12, 2004).

Center on Wrongful Convictions Examines "The Snitch System"

The Center on Wrongful Convictions at Northwestern University School of Law has released a new report entitled, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row. The report highlights 51 cases of Americans who were wrongfully convicted and given death sentences based on the testimony of witnesses with incentives to lie. According to the Center, snitch testimony is the primary cause for approximately 45% of all wrongful capital convictions, making it the leading problem resulting in innocent people being sent to death row.
The report provides in-depth information on the cases of death row exonerees Verneal Jimerson, Gordon Steidl, Joseph Burrows, Perry Cobb, Steven Smith, Gary Gauger, Steven Manning, Rolando Cruz, and Madison Hobley. It concludes with recommendations on improving the reliability of testimony used to convict and sentence defendants in capital cases. (Center on Wrongful Convictions, 2004). See Resources. Note: Snitch testimony was used to convict Cameron Willingham, who was executed in Texas in 2004. A recent investigation (see below) by the Chicago Tribune now indicates Willingham might have been innocent.

Chicago Tribune Investigation Concludes Texas May Have Executed Innocent Man

After examining evidence from the capital prosecution of Cameron Willingham, four national arson experts have concluded that the original investigation of Willingham's case was flawed and it is possible the fire was accidental. The independent investigation, reported by the Chicago Tribune, found that prosecutors and arson investigators used arson theories that have since been repudiated by scientific advances. Willingham was executed earlier this year in Texas despite his consistent claims of innocence. He was convicted of murdering his three children in a 1991 house fire.
Arson expert Gerald Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." Former Louisiana State University fire instructor Kendall Ryland added, "[It] made me sick to think this guy was executed based on this investigation.... They executed this guy and they've just got no idea - at least not scientifically - if he set the fire, or if the fire was even intentionally set."
Willingham was convicted of capital murder after arson investigators concluded that 20 indicators of arson led them to believe that an accelerent had been used to set three separate fires inside his home. Among the only other evidence presented by prosecutors during the the trial was testimony from jailhouse snitch Johnny E. Webb, a drug addict on psychiatric medication, who claimed Willingham had confessed to him in the county jail.
Some of the jurors who convicted Willingham were troubled when told of the new case review. Juror Dorinda Brokofsky asked, "Did anybody know about this prior to his execution? Now I will have to live with this for the rest of my life. Maybe this man was innocent." Prior to the execution, Willingham's defense attorneys presented expert testimony regarding the new arson investigation to the state's highest court, as well as to Texas Governor Rick Perry. No relief was granted and Willingham was executed on February 17, 2004. Coincidentally, less than a year after Willingham's execution, arson evidence presented by some of the same experts who had appealed for relief in Willingham's case helped free Ernest Willis from Texas's death row. The experts noted that the evidence in the Willingham case was nearly identical to the evidence used to exonerate Willis. (Chicago Tribune, December 9, 2004). Read the Chicago Tribune article. See Innocence Case Descriptions #117 regarding Ernest Willis' case.


New Jersey Governor Calls for Death Penalty Moratorium

New Jersey Governor Richard Codey proposed a moratorium on executions until a study commission could determine whether the state's death penalty system is fair and cost effective. The governor announced his moratorium proposal as the legislature began considering a bill to initiate the study. "The governor does not think it makes sense to do a study without a moratorium. So he does support a moratorium right now, and he supports it for 18 months to two years," Codey's spokeswoman, Kelley Heck, stated. Codey, who is also President of the New Jersey Senate, called for the halt to executions as he stalled a Senate vote on legislation that would have created a 13-member death penalty study commission. The bill would create a panel to determine whether the death penalty is consistent with "evolving standards of decency," whether it is discriminatory, and whether it is worth its cost - both in money for lawyers and the risk of executing an innocent defendant. Senator Shirley Turner, sponsor of the study commission legislation, echoed Codey's call for a moratorium and added, "If we're going to study the death penalty, I think we should not allow anyone to be executed until the report is in." New Jersey has not executed anyone in 41 years, and executions in the state are currently on hold as the Department of Corrections devises new lethal injection rules. The current execution procedures were struck down in February because they shrouded executions in secrecy and made no provisions for halting one once it was started, even in the event of a last-minute reprieve. (Star-Ledger, December 7, 2004).

Louisiana's Death Penalty Record Comparable to Illinois': Moratorium Called For

A review of Louisiana's death penalty in recent years revealed that twice as many condemned inmates have walked free from death row than have been executed. Since 1999, of the 22 people whose cases were finally resolved, 12 had their death sentences reversed and were ordered to serve lesser sentences, 6 were freed after courts ordered their charges dismissed, 1 died of natural causes, and 3 were executed. Of the three who were executed, two were represented by attorneys no longer allowed to practice law. One of the disbarred lawyers was found to have participated in a long list of improper behavior over several cases, and the other attorney lost his license because of mental health problems. "That 27% of all capital convictions led to exonerations is shocking. I can't see how any criminal justice system can tolerate that level of error, particularly in the matter of the death penalty. It is unacceptable," said Stuart Green, a Louisiana State University law professor specializing in constitutional and criminal justice issues.
Four years ago, the State Bar of Louisiana adopted a resolution asking the governor to halt executions while state death penalty statutes were reviewed. At the time, then-Governor Mike Foster refused to take that step, but current Governor Kathleen Blanco has stated that she would consider a moratorium if statistics indicated problems. Backed by the numbers of mistakes, many attorneys and legal experts are urging Blanco and other lawmakers to impose a moratorium and authorize a capital punishment review in order to ensure the fairness and accuracy of the system. "No matter how you feel about the death penalty, people of integrity want to make sure that we take particular care when the sentence is death. These numbers say we are not careful," said Denise LeBoeuf, director of the Capital Post-Conviction Project of Louisiana. (The Advocate, November 29, 2004). See Representation.

 Former FBI Chief and Texas Judge Call for Halt to Texas Executions

William S. Sessions, who served as director of the FBI from 1987 to 1993, and Charles F. Baird, a former Texas Court of Criminal Appeals Judge from 1990 to 1998, have called for a halt to executions in Texas because of the risk of executing an innocent person. Sessions and Baird, both of whom are native Texans, cited the problems at the Houston Crime Lab as a principal reason for their doubts about the reliability of the death penalty system:

Since November 2002, when its police department's crime lab problems first surfaced, Houston citizens have reacted with dismay to each new revelation.

The problems initially seemed limited to fairly minor physical breakdowns at the lab building. At every turn, however, these problems have multiplied. Most recently, authorities discovered about 280 boxes filled with crime evidence involving as many as 8,000 cases. What is most worrisome is that these cases were considered closed, many with a perpetrator behind bars and the victims seemingly assured that justice had been done. But because these boxes remain uninventoried, we cannot be sure that the right person is in prison, or if the true perpetrator is still on the streets, endangering us all.

We are Texans and members of a bipartisan committee sponsored by the Constitution Project's Death Penalty Initiative. We joined the committee in 1999 because we believe the risk of convicting and executing the wrong people is unacceptably high. Since the initiative's creation, the number of individuals who have been exonerated and released from death row has reached 117 nationwide, including eight from Texas. The discovery of the boxes from the Houston crime lab raises the potential that many more wrongfully convicted people are being housed in our Texas prisons.

While our committee includes members who support the death penalty, and others who oppose it, we all agree that the risk of wrongful convictions is too high and that systemic reforms are urgently needed to try to make the system fairer and more accurate.

One of our recommendations is that states allow DNA and other biological evidence to be properly tested in any case and any time if the evidence might shed light on the guilt or innocence of the inmate, so that we can be as sure as possible that we are prosecuting the right person.

Our committee has not taken a position on a moratorium, but the Houston travesty requires us to join with the many prominent Texans who are now calling for a moratorium until the evidence in the Houston crime lab boxes is inventoried and, if appropriate, tested.

We are in good company. Houston Police Chief Harold Hurtt has noted,'I think it would be very prudent for us as a criminal justice system to delay further executions until we have had time to review the evidence.' The dean of the Texas Senate, John Whitmire, who represents part of Houston and also chairs the Senate Criminal Justice Committee, joined in the chief's call for a moratorium. In a letter to Gov. Rick Perry, Whitmire stated, 'It's just nuts, to sum it up, that we would not hold off on executions until we go through each and every piece of evidence.'

Former Gov. Mark White and Charles Terrell, a former chairman of the Texas Department of Criminal Justice, have also called on the governor to act, as have major Texas newspapers. Judge Tom Price of the Texas Court of Criminal Appeals has also recently joined the call for a moratorium.

Yet, within the last few weeks, five executions have gone forward involving death row inmates from Houston, with another scheduled for early December. District Attorney Chuck Rosenthal has resisted an independent review of the crime lab and has joined the trial judges in opposing a postponement of the executions, even just until a proper inventory and any appropriate testing of the evidence is done.

We cannot understand this position. If the evidence confirms the guilt of the person scheduled to be executed, the execution should go forward. But if the evidence exonerates the inmate, no Texan would want to see an execution.

Texans know that the crime lab problems are not just theoretical and are not limited to death row inmates. In 2003, Josiah Sutton was exonerated of a crime he did not commit after spending four years in prison. Earlier this month, George Rodriguez was released after spending more than 17 years in prison. He was convicted on the basis of faulty DNA analysis.

Since reintroduction of the death penalty, Texas has executed 336 men and women. Our state has been responsible for more than 35 percent of all the executions in America. Too many of these executions occurred despite of profound questions about the facts of these cases, including in some instances questions about whether the defendant was actually innocent.

The two safety valves that supposedly prevent our state from executing an innocent person have not worked as they should, and in some cases have failed entirely. The Court of Criminal Appeals, an elected and partisan body, has been criticized by the U.S. Supreme Court for not properly reviewing cases. A just released Texas Monthly article about the court is called 'And Justice for Some.' And -- borrowing a phrase from the Texas oil fields -- clemency in Texas is simply a dry hole, with critical facts either not presented to the governor or not meaningfully considered.

Many experts believe that the death penalty does not deter crime. Some of us are not sure one way or the other. But, we should not be deterred from exercising common sense. We have a runaway train with no one at the controls, and that is no way to run a railroad. We support a moratorium.

(Op-ed, Austin American-Statesman, November 25, 2004). See New Voices.




Editorials Note Growing Unease With Death Penalty

Editorials in papers around the country have noted that many Americans are rethinking the death penalty because it is deeply flawed. Among the recent editorial observations were the following:

New Jersey's Star-Ledger

Fewer people are being given the death penalty in the United States, according to the Justice Department, which says such sentences are at a 30-year low. Last year, the number of people who were sentenced to die totaled 144.

While these numbers are heartening in that they reflect a decrease in executions, they ought to cause states to rethink the wisdom and fairness of the death penalty altogether.
. . .
Getting sentenced to death has become just what the U.S. Supreme Court, in its landmark 1972 Furman vs. Georgia ruling, said it should not be -- a punishment so "wantonly and so freakishly imposed" that it is like getting struck by lightening.
. . .
Whatever one's moral views on the death penalty, there are compelling reasons to consider getting rid of it.

Cost is one. It takes from $2.3 million to $3.2 million to bring a death prosecution in New Jersey.

Human error is another reason. In recent years, more than 100 death-row inmates nationwide have been exonerated, mostly using DNA evidence.

The question is whether anybody is willing to kill this badly broken system. (Star Ledger Editorial, November 20, 2004).

Florida's Daytona Beach News-Journal

Over the past 10 years, Americans have been forced to face reality: Death penalty laws are deeply flawed.

More than 100 death row inhabitants have been freed after their convictions were overturned, many of them exonerated by DNA evidence that conclusively proves their innocence. Years, sometimes decades, pass between conviction and execution. And executions gruesomely botched have many recoiling in horror.
. . .
Why are Americans turning away from this vestige of frontier justice? One possible explanation is the growing international pressure on the United States as the last industrialized nation to so enthusiastically apply the death penalty. But a more likely theory hits closer to home. The continuing spate of stories about inequities in the way the death penalty in administered has forced many to consider whether the notion of retributive justice is itself fundamentally flawed.

The myth that capital punishment is a deterrent has been exploded. Death penalty proponents argue that over the past 10 years, the number of executions increased while murder rates have decreased. But that's true in states that don't have the death penalty -- and on average, their murder rates are dropping faster than they are in the states that still execute, the Death Penalty Information Center reports.

The other likely contributer is the number of death sentences overturned, a statistic that throws the permanent, irrevocable nature of the death penalty into sharp focus. As DNA evidence has freed increasing numbers of inmates, the number of Americans who say they favor the death penalty has remained fairly stable -- but the number of Americans who say they oppose the death penalty has steadily increased. While 60 to 70% of Americans say they approve of the death penalty, the number drops to about half when they are asked to choose between death and life in prison without parole.

This growing uneasiness about the death penalty is already bearing fruit. Last month, President Bush signed the Justice For All Act, which (among other things) provides more hope to inmates awaiting DNA tests that could prove their innocence. The act does not go far enough -- it limits access to other scientific tests, for example -- but it will provide $25 million to states over the next five years to conduct post-conviction DNA tests.

Yet too many death penalty inmates are still tried, convicted and sentenced in states that deny them adequate legal representation. Without a competent lawyer at trial, the accused lose much of their ability to appeal wrongful convictions.
. . .
A better solution -- the right solution -- is to recognize the death penalty for what it is -- inefficient, ineffective, expensive, slow, unjust and morally reprehensible -- and abolish it now, rather than wait for it to wither away. (Daytona Beach News-Journal Editorial, November 17, 2004).

Colorado's Denver Post

It's probably too early to call it a radical change, but there's a flicker of hope that American society is coming to think of capital punishment as a cruel anachronism. . . .[A] new report has found that the number of death verdicts hit a 27-year low last year. Possible factors include the exoneration of about 100 death-row inmates and the fact that jurors now have the option of imposing life without parole in 47 states.
. . .
Despite support in public-opinion surveys, jurors seem less enthusiastic about capital punishment. "I'm not surprised at the reluctance on the part of American juries to impose the death penalty," said U.S. District Judge John Kane, who speculated that some death-penalty jurors may hesitate because of news reports and television shows about errors in death-penalty cases.
. . .
Over time, the Supreme Court has narrowed application of the death penalty, banning execution of the mentally retarded, for example. Early this year, the court agreed to re-examine execution of defendants who were juveniles when their crimes were committed.

The Post has opposed capital punishment since 1965. Perhaps growing antipathy for actually imposing the death penalty will someday lead the court to conclude that it has truly become a "cruel and unusual punishment" and ban it altogether. (Denver Post Editorial, November 21, 2004).

See Editorials. See also Costs, Deterrence, and Representation.


 Former Missouri Chief Justice Reiterates His Concerns About Capital Punishment

Former Missouri Supreme Court Chief Justice Charles Blackmar recently reiterated his opposition to the death penalty and his concerns about wrongful convictions, noting that the exoneration of Missouri death row inmate Joseph Amrine "makes me wonder how many people there are who were wrongfully convicted." Amrine spent 26 years in prison, 17 of them on death row, before his conviction was overturned and he was released in July 2003. "The lesson is that people were persuaded eventually that he was innocent. But there are a fair number of people who were not guilty, who didn't receive such treatment and were executed," said Blackmar during his speech in Columbia, Missouri. During his discussion on the issue of innocence, Blackmar stated that even a sentencing error rate of one or two percent would be too much to justify maintaining capital punishment. (Columbia Missourian, November 11, 2004) See Innocence and New Voices.


 Juveniles and the Mentally Disabled More Likely to Give False Confessions

Studies and surveys have found that both minors and the mentally impaired are more likely to make false confessions, in part because they are more vulnerable to suggestion. A recent study conducted by Northwestern University law professor Steve Drizin and UC Irvine criminologist Richard Leo examined 125 cases in which individuals were exonerated after giving false confessions. The researchers found that 32% of the cases involved minors and 22% of the cases involved individuals with mental retardation. "They are more likely to go along, agree and comply with authority figures - to say what the police want them to say - than the general population," notes Emory University professor Morgan Cloud, who co-wrote another study that found that the mentally impaired - even those who with mild forms of mental retardation - are largely incapable of understanding police admonitions of their right to remain silent and to have an attorney.
A study published in the University of Chicago Law Review examining comprehension of Miranda rights found that only 27% of disabled persons understood that confessions can be used against a suspect, while 91% of nondisabled persons understood this concept. Disabled subjects were also found to be far less likely to understand that police cannot threaten suspects, that police and judges cannot force suspects to talk, and that there is no penalty for remaining silent. While juveniles and those with mental impairments are most likely to succumb to psychological pressure and make erroneous admissions during intense police interrogations, experts note that even the able-minded are at risk. Social scientists and legal experts say the best way to ensure that confessions or admissions are truthful is to require detectives to tape them from the Miranda warning in the first interview until the end of all subsequent interviews. Some states, including Alaska and Minnesota, already require this type of videotaping. UC Berkeley sociologist Richard Ofshe notes that video or voice recordings of confessions would reduce false confessions by as much as 90% because it would stop coercive tactics that are sometimes used by police. (Los Angeles Times, October 30, 2004). See Juveniles and Mental Retardation.


California's Record on Wrongful Convictions

A recent San Francisco magazine article entitled "Innocence Lost," examines California's record of wrongful convictions. The researchers report that the nation's largest criminal justice system has sent more innocent people to prison for longer terms than any other state. Among the exonerees are three from the state's death row and nearly 200 people who were serving either life or very long terms. The magazine notes that despite these numbers, state lawmakers have repeatedly passed up opportunities to put safeguards in place that could prevent such errors from happening in the future. Among other key finding's in the magazine's year-long review of wrongful convictions were the following:

• Over the past 15 years, at least 200 California inmates have been freed after courts found they were unjustly convicted - nearly twice the number of exonerations as in the next two states (Illinois and Texas) combined.
• California has been sentencing people to life at an alarming rate. More than 30,000 inmates are serving life terms, twice as many as in the entire European Union, which has a population 12 times larger. Approximately 17% of California inmates are lifers, compared to 9% of prisoners in the U.S. as a whole.
• Some 63% of wrongful convictions in San Francisco's research sample of 30 cases involved serious police error or misconduct. Some 47% of wrongful convictions in the sample involved serious prosecutorial error or misconduct. More than 90% were upheld on direct appeal.
• In a survey of 676 voters conducted for the magazine by David Binder Research, 69% believe lifers should have the same rights to free attorneys and levels of appeal as people facing execution. Of those polled, 61% also support adding safeguards to prevent wrongful life sentences and 78% favor firing police or prosecutors who break the rules to get a conviction. Currently, action is rarely ever taken against these individuals.
  
• While DNA databases may be helpful in freeing some wrongly convicted individuals, only about 10% of criminal cases have any biological evidence - blood, semen, etc. - to test.
• California's "three strikes" law has added approximately 7,500 people serving life terms to the state's prisons. It has pressured some innocent people to accept deals and plead guilty to crimes they didn't commit rather than risk the automatic life sentence of a third strike.

(San Francisco, November 2004) Read the article (pdf format).See Life Without Parole.


Inmate Exonerated of Murder After His Death; Co-Defendant Who Had Been Given Death Sentence Exonerated Earlier

A murder charge against Louis Greco was finally dismissed by Massachusetts authorities 9 years after he died in prison. According to the Associated Press, in 2000, a Justice Department task force uncovered secret F.B.I. memoranda showing that Mr. Greco and three co-defendants, Peter J. Limone, Joseph Salvati, and Edward Tameleo, had been wrongly convicted of a murder that occurred in 1965 based on perjured testimony. (Limone had been sentenced to death, but was later released and exonerated in 2001. Tameleo also died in prison.) The F.B.I.'s relationship with mob informers has been the subject of a Congressional inquiry. In September 2004, a federal judge allowed a suit filed by Limone, Salvati and Greco's family for malicious prosecution and wrongful imprisonment to go forward. In exonerating Greco, assistant district attorney, Mark Lee, of Suffolk County said: "It appears that justice may not have been done." (N.Y. Times, Nov. 5, 2004). Limone was spared execution when Massachusetts abolished the death penalty in 1974. See DPIC's Innocence List for a description of Peter Limone's case.


New Resource: New York's Wrongful Convictions

Scott Christianson's new book, Innocent: Inside Wrongful Conviction Cases, examines mistakes in New York's criminal justice system with an emphasis on mistaken identifications, perjury by eyewitnesses, ineffective counsel, false confessions, and police and prosecutorial misconduct. The book includes a log of the state's wrongful conviction cases, including some capital cases. Christianson reminds readers, "Unfortunately, not much is known about the current nature and extent of wrongful conviction. The state does not maintain a master list of its mistakes." He does applaud state and national efforts to review and improve accuracy, including programs such as The Innocence Project at Cardozo Law School and North Carolina's study to investigate the causes of wrongful convictions. (New York University Pres, 2004). See Resources.


Texas Judge Calls for Halt to Executions

Judge Tom Price, a 30-year veteran Republican jurist on Texas's highest criminal court, recently stated that those on the state's death row convicted with evidence from the Houston Police Department crime lab should not be executed until questions about its work are resolved. Price called for a limited moratorium on executions, saying, "I think it would be prudent to delay further executions until we have had a chance to have this evidence independently verified. Once a death sentence is carried out, you cannot reverse that." The call came after Price offered the only dissenting vote when the Court of Criminal Appeals denied Dominique Green's request for a delay of execution based on the crime lab's problems. Green, a Houston man who was sentenced to death in 1992, was executed on October 26. In his dissenting opinion, Price reiterated his concerns about the accuracy of the Houston Police Department's ballistics analysis as well as the recent discovery of 280 boxes of mislabeled evidence from some 8,000 criminal cases. The crime lab's problems have plagued the Houston Police Department for nearly two years and have prompted similar calls from the city's Police Chief, Harold Hurtt, and several lawmakers. Price's call for a moratorium is the first of this magnitude from state's judiciary. (Houston Chronicle, October 26, 2004)


Chicago Tribune Series Examines How Arson Myths May Lead to Wrongful Convictions

As part of its five-part series on forensic science and wrongful convictions, the Chicago Tribune examined how scientific developments in fire investigations have called into question crucial expert testimony in many cases, including some death penalty prosecutions. As a result of untested theories, shoddy analysis and a resistance to rigorous review, long-time arson investigators are now seeing their conclusions contradicted by colleagues who question the reliability of the folk wisdom that has dictated this profession for decades. What was once accepted as truth is now being exposed as inaccurate findings through research and laboratory tests, and some experts believe that thousands of fires may have been misinterpreted as arson over the last 50 years because of reliance on myths. For example, Ernest Willis was freed this month after spending nearly two decades on death row in Texas for alledgedly setting a 1986 fire that experts now say could not have been an arson. "God knows how many innocent people have been convicted. You've got tons of holdouts -- good old boys who've investigated 5,000 fires and they are doing it the same way they've always done it," said Gerald Hurst, a fire investigator whose expert testimony helped to exonerate Willis and several other wrongly convicted persons. Long-time fire investigator John DeHaan, who has been a fire and explosives consultant in California for more than 30 years, echoed Hurst's observation and noted, "Most of the fire investigation in the mid-1980's was taught by word of mouth by people who had been doing if for 20 years. There wasn't a lot of science in fire investigation. It was oral tradition." DeHaan also stated that among arson investigators there is a negative reaction to incorporating science into their methodology, and that many of these professionals still provide expert testimony based on outdated methodology. (Chicago Tribune, October 17, 2004). Read the DPIC Summary of the Series. Read the complete Chicago Tribune series. See DPIC's Studies page.


California Bar Association Urges Death Penalty Moratorium

A group of 450 attorneys participating in the Conference of Delegates of the California Bar Association has urged a moratorium on the death penalty in California until the state reviews whether capital punishment laws are enforced fairly and uniformly. "If you make a mistake, it's not like you can go back and correct a mistake because the person is dead," said Los Angeles County Deputy District Attorney Danette Meyers, supporter of the measure and a member of the Bar Association that represents prosecutors, criminal defenders and civil attorneys from dozens of bar groups throughout the state. The group called on California lawmakers and Governor Arnold Schwarzeneggar to impose a two-year moratorium on executions and to create an independent committee focusing on race, the reliability of convictions and whether the condemned had adequate legal representation. It also requested an inquiry into the financial cost of capital punishment and whether capital punishment is imposed too often. Executions are rare in California even though it has the nation's largest death row of 640 inmates. One reason for the delay is that more than a quarter of those on California's death row have not been given a lawyer for their first and mandatory appeal to the state's Supreme Court. The state has carried out 10 executions since the death penalty resumed in 1976. (Associated Press, October 17, 2004) See Representation, Costs, and Race.


Chicago Tribune Investiates Forensic Science and Wrongful Convictions

A five-part Chicago Tribune investigation of forensics in the courtroom has revealed that flawed testing analysis, questionable science once considered reliable, and shoddy crime lab practices can often lead to wrongful convictions. Developments in DNA technology have helped shed new light on these problems by revealing the shaky scientific foundations of techniques like fingerprinting, firearm identification, arson investigation, and bite-mark comparison. A review of 200 DNA and death row exonerations nationwide in the last 20 years found that more than a quarter (55 cases with 66 defendants) involved original forensic testing or testimony that was flawed. Through hundreds of interviews, an examination of thousands of court documents and an analysis of criminal cases that turned on forensic evidence, the Chicago Tribune reporters discovered the following:

• Fingerprinting is so subjective that the most experienced examiners can make egregious mistakes.
• Forensic dentists, who link suspects to bite marks left on crime victims, continue to testify despite having no accepted way to measure their rate of error or the benefit of peer review. DNA has shown that even the field's leading practitioners have made false bite-mark matches.
• Scandals at labs across the country - including facilities in Maryland, Texas and Washington state - have spotlighted analysts who have incorrectly assessed evidence, hidden test results helpful to defendants and testified falsely in court. These scandals underscore the often-ineffective standards governing crime labs. Analysts involved in faulty forensic work often testify in hundreds of trials, an indication of how widespread this problem can be.

(Chicago Tribune, October 17, 2004). Read the DPIC Summary of the Series. Read the series.


After 19 Years, Innocent Man to Walk Free

The Utah Attorney General's office has recommended that Bruce Dallas Goodman's murder conviction be set aside as a result of new DNA tests that have confirmed Goodman's steadfast claims of innocence. Goodman was convicted in 1984 for the murder of his girlfriend, Sherry Ann Fales, who was raped, sodomized, beaten to death and abandoned off an interstate exit, a crime that qualified for the death penalty. Since his arrest, Goodman has maintained that he did not murder Fales, and the state's case against him was largely circumstantial. Last year, the Rocky Mountain Innocence Center examined DNA evidence taken from the scene of the crime and the Center's findings excluded Goodman as the murderer. Instead, the DNA samples pointed to two men, neither of them identifiable. Following the testing, Josh Bowland, an attorney with the Innocence Center, petitioned to vacate Goodman's conviction based on the new evidence. Based on the Attorney General's recommendation, Goodman is expected to be released after 19 years in prison. (Associated Press, October 15, 2004)


Major Texas Newspapers Call for a Halt to Executions in Cases from Houston

Following a call from the Houston Police Chief and from state legislators to halt executions in cases from Harris County, four of the state's largest newspapers published editorials in support of a moratorium on executions. The Houston police crime lab has been plagued with errors in DNA testing and preservation of evidence. There have been far more executions from Harris County (Houston) than from any other county in the country.


AUSTIN AMERICAN-STATESMAN

(N)othing can justify an execution if there is any good reason to question the evidence upon which the death sentence relies.

That's why we urge Gov. Rick Perry to honor the requests from Houston Police Chief Harold Hurtt, Sen. Rodney Ellis, D-Houston, and state Sen. John Whitmire, chairman of the Senate Criminal Justice Committee, to suspend all scheduled executions of inmates from Harris County until the justice system can review the cases against them.

Such a review is necessary because of the wretched work of the Houston Police Department's crime lab.
. . .
There's no harm in waiting, and there could be enormous wrong in not waiting. No one should be executed for a crime he or she did not commit.

Not even in Texas. (Austin American-Statesman, October 7, 2004)


DALLAS MORNING NEWS

We respect Republican Gov. Rick Perry's support of the death penalty. But we don't understand his shrugging off Houston Police Chief Harold Hurtt's request for a moratorium on executions until the problems with Houston's notorious crime lab get cleaned up.

No less a death penalty supporter than state Sen. John Whitmire understands the significance of Chief Hurtt's request. If the state executes a person who, it later turns out, was convicted based upon faulty evidence from the troubled crime lab, the state will be responsible for an injustice of unimaginable magnitude. And death penalty opponents would have more reason to decry Texas executions.
. . .
If Texas is going to keep executing prisoners, it needs to make sure the cases are solid. As a death penalty supporter, you'd think Gov. Perry would see it that way. (Dallas Morning News, October 7, 2004)

HOUSTON CHRONICLE

It is a travesty of justice for Texas to continue administering lethal injections to death row inmates from Harris County even as forensic tests on hundreds of pieces of questionable evidence remain to be carried out. Even more disturbing, Houston police have only just begun a review of the contents of 280 mislabeled and previously unaccounted for boxes of evidence they discovered in August.
...
On the same day that Miniel was executed, the state released Ernest Ray Willis, a death row inmate for more than 17 years. Willis was convicted of setting a fatal fire. Modern analysis failed to find that arson had been committed.

Fortunately for Willis, capital punishment in Texas is not so swift. If gross injustice can be detected 17 years after the fact, a pause of a few months to recheck boxes of newly discovered evidence is surely justified. (Houston Chronicle, October 8, 2004)


SAN ANTONIO EXPRESS-NEWS

Members of the Harris County judiciary should stop setting execution dates for Texas death row inmates until next spring.
...
Gov. Rick Perry refused a request by Sen. John Whitmire, D-Houston, this week to halt the executions of Harris County inmates until March because of the quality of work at the crime lab.

Those valid concerns warrant a suspension of the executions.
...
Because the executive and legislative branches of state government refuse to address the issue, the judiciary is the last resort. (San Antonio Express-News, October 9, 2004)

See Innocence and Editorials.


Execution May Go Forward Despite Nearly Even Split on Innocence

A deeply divided U.S. Court of Appeals for the Sixth Circuit ruled 8-7 that the execution of Tennessee death row inmate Paul Gregory House may move forward despite the fact that nearly half of the judges believe he is not guilty and should be freed immediately. "We are faced with a real-life murder mystery, an authentic 'who-done-it' where the wrong man may be executed," wrote dissenting judge Ronald Lee Gilman. A N.Y. Times article noted that although courts are often closely divided on legal issues, rarely are they split on the basic question of guilt or innocence in a death penalty case.

Recent retesting of DNA evidence in the case found that semen originally thought to have come from House, who was convicted of raping and murdering Carolyn Muncey in 1985, actually came from Muncey's husband, Hubert. At a recent federal District Court hearing to determine whether to allow House's case to be reopened based on the new DNA evidence, witnesses testified that Hubert Muncey was an alcoholic who frequently beat his wife and who later confessed to killing her while drunk. While the majority of the Court of Appeals was willing to let the execution go forwared, six dissenting judges strongly disagreed, noting, "Without any evidence of rape, the state has lost its motive, its theory of the case and the aggravating circumstance on which the state and the jury relied for his death verdict. There is no reasonable basis for disbelieving the six witnesses who now incriminate Mr. Muncey as the perpetrator of the crime. House has shown that it is highly probable that he is completely innocent of any wrongdoing whatsoever. House should be immediately released." The 8-7 ruling means that unless the U.S. Supreme Court intervenes or Mr. House dies first from the multiple sclerosis he has, he will be executed. (New York Times, October 7, 2004)


Senate and House Pass Versions of Innocence Protection Act

On October 9, the U.S. Senate passed by voice vote a bill called the "Justice for All Act of 2004" that contains important elements of the Innocence Protection Act, originally introduced in 2000. A similar bill recently overwhelmingly passed the House of Representatives (HR 5107), and it is expected that the final legislation will now be signed into law. The bill provides for expanded access to DNA testing for prison inmates and assistance to states for both defense and prosecution in conducting death penalty trials. The broader legislation also provides assistance to victims of crime. (Washington Post, Oct. 10, 2004). See also Justice Project Press Release.


Another Innocent Inmate Close to Release in Texas

Ernest Willis is likely to be the eighth person exonerated and freed from Texas's death row. He would be the 117th person freed nationwide since 1973. Willis was sentenced to death 17 years ago for allegedly setting a house fire that killed two people. Now the state's own fire expert, Gerald Hurst, has concluded: "There is not a single item of physical evience in this case which supports a finding of arson." He labeled some of the "scientific" evidence at Willis's first trial as "absurd." The district attorney in Fort Stockton, Texas, said that he would file a motion today requesting the dismissal of all charges. "I don't have to decide whether he's innocent or not, but I think that's probably a probability--that he is innocent," said district attorney Ori White. A federal district judge in San Antonio had ruled in July that Willis must be either freed or given a new trial, stating that there is "strong reason to be concerned that Willis may be actually innocent." (San Antonio Express-News, Oct. 5, 2004). See DPIC's new report on innocence. Note: All charges against Willis were dismissed and he was formally released on October 6. See Cases of Innocence #117.


Texas Police Chief Calls for Halt to Executions in Wake of Scandal

In the wake of a scandal that has called into question the reliability of the police crime lab's testing and handling of evidence in Harris County, Texas, Police Chief Harold Hurtt has said that executions of inmates from the county should not be scheduled until all relevant evidence has been reexamined to assure accuracy. He went on to note that the executions of nine individuals convicted in Harris County that are scheduled to take place before March 2005 should not be allowed to go forward. "I think it would be very prudent for us as a criminal justice system to delay further executions until we have had time to review the evidence," Hurtt said. Harris County investigators are about a quarter of the way through their review of hundreds of boxes of evidence that had been forgotten in a storage room and may impact thousands of crimnal cases. (Houston Chronicle, September 30, 2004).


Innocence Case Results in Prosecutor Reprimands

The North Carolina State bar has reprimanded two former assistant attorney generals for withholding evidence that could have prevented the wrongful conviction of Alan Gell, who was finally freed from death row in 2004 (pictured). The State Bar panel found that prosecutors David Hoke and Debra Graves failed to turn over evidence to Gell, did not adequately supervise the conduct of their chief investigator for the case, and brought the judicial system into disrepute by their conduct. Hoke and Graves received a written reprimand for their behavior, which the panel found to be unintentional. Gell, who spent nine years in jail and half of those on death row, won a new trial in 2002 on the basis of the withheld evidence. Among the evidence prosecutors failed to disclose were statements of people who saw the victim, Allen Ray Jenkins, alive after Gell had been jailed for vehicle theft and could not have committed the crime, as well as a taped conversation of the state's star witness saying she had to "make up a story" for police. With the new evidence that had surfaced, Gell's 2004 retrial ended in a quick acquittal. Hoke continues to serve as the No.2 state administrator in the state court system, and Graves now works as an assistant federal public defender. (News Observer, September 25, 2004).


Innocence Protection Act Advances in U.S. House and Senate

Just one day after the U.S. Senate Judiciary Committee passed the "Advancing Justice Through DNA Technology Act," a measure that includes the Innocence Protection Act and that ensures access to post-conviction DNA testing for those in prison with claims of innocence, the bill has been incorporated into legislation introduced in the House Judiciary Committee. As part of the "Justice for All Act of 2004," the DNA bill is anticipated to quickly advance to the House floor for a vote, after which point it can move to the full Senate for consideration next week. It has already been passed by the House Judiciary Committee. Among other provisions, the "Advancing Justice Through DNA Technology Act" authorizes $25 million over five years to help states pay the costs of post-conviction DNA testing, including death penalty cases, and it provides grants to states for capital prosecution and defense training to improve the quality of death penalty trials and assist families of murder victims. The bill is the product of a bi-partisan, bicameral negotiations led by Senate Judiciary Chairman Orrin Hatch of Utah and Ranking member Patrick Leahy of Vermont. The bill reference number in the House is H.R. 3214 and in the Senate it is S. 1700. (Washington Post, Sept. 22, 2004; see also Press Release from The Justice Project, September 22, 2004) Read Senator Leahy's remarks following the Judiciary Committee's passage of the "Advancing Justice Through DNA Technology Act."


Bloodsworth - The True Story of the First Death Row Inmate Exonerated by DNA

A new biography by Tim Junkin entitled Bloodsworth: The True Story of the First Death Row Inmate Exonerated by DNA recounts the events that led first to the conviction and death sentence, and then to the freeing of Kirk Bloodsworth for the murder of a nine-year-old girl in Maryland. Sister Helen Prejean, author of Dead Man Walking describes the book as "Chilling, heartbreaking, and ultimately inspiring." Scott Turow says: "Bloodsworth is a tale of courage and determination in the face of the law's worst nightmare--the execution of an innocent man." Senator Patrick Leahy calls Bloodsworth "a powerful indictment of the a death penalty system that is fundamentally broken." (Algonquin Books, 2004).


Innocence Protection Legislation Delayed in Senate Judiciary

Despite broad bipartisan Congressional support for the Advancing Justice Through DNA Technology Act, which includes the "Innocence Protection Act" (IPA) to help states pay for the costs of post-conviction DNA testing, the Senate Judiciary Committee has delayed action on the bill. Kirk Bloodsworth, whose name accompanies the IPA, urged Congress to act: "Nobody should have to wait for justice. I struggled for nearly 20 years to clear my name. This legislation will prevent innocent people from ending up on death row, and it will ensure that the truly guilty are caught. Congress should pass this legislation and prevent more stories like mine." Bloodsworth was the first person in the nation to be freed from death row on the basis of DNA evidence.
The legislation passed the House with overwhelming support by a vote of 357-67 in November 2003. Since then, it has stalled in the Senate due to what Senator Patrick Leahy calls "needless delays." Some critics have said the bill would result in unneccessary appeals and undermine the death penalty system. But Senator Leahy, ranking minority leader of the Judiciary Committee and a co-sponsor of the bill, said, "We have wasted a lot of time in reporting this bill out of committee. Every day that the bill is stalled is another day that rape kits go untested for lack of funds; another day that inmates with colorable claims of innocence are denied access to DNA evidence that could set them free and put the real criminals behind bars." The Committee is expected to continue its consideration of the bill on September 14th. (The Washington Post, September 10, 2004).


Cincinnati Center Launches "Innocence Week"

The University of Cincinnati's Center for Law and Justice will be inaugurating its Innocence Week beginning September 14th. The week of activities centered on wrongful convictions will include a presentation by Scott Hornoff, a police officer from Rhode Island who was wrongly convicted of murder before being freed on the basis of DNA, presentations by DNA expert Barry Scheck, and performances of the award-winning play The Exonerated. The Center for Law and Justice is best known for launching the Ohio Innocence Project in 2003. The project seeks to exonerate wrongly imprisoned inmates by using new information and technologies such as DNA identification. "The Innocence Project is truly a passion we have. When you are of (financial) means, you can hire careful representation. But when you are poor or not knowledgeable about the law, you are not represented as well," said Lois Rosenthal, who along with her husband have made significant contributions to the Justice Center. (Cincinnati Enquirer, September 7, 2004)


New Resource: Law Review Features Wrongfu Conviction Symposium

The Summer 2004 Drake Law Review includes articles based on a recent Symposium on Wrongful Convictions featuring some of the nation's leading experts on innocence and the death penalty. The articles provide a detailed overview of the issue of innocence and examine wrongful convictions from a number of persectives, including the role of criminal case review in correcting miscarriages of justice, the need to record police interrogations, the impact of innocence on victims' family members, and compensating those who were wrongly imprisoned. In addition, the symposium highlighted the work of the death penalty commissions in Illinois and North Carolina. Among those featured are Hugo Bedau, Michael Radelet, Thomas Sullivan, and Steven Drizin. (Drake Law Review, Summer 2004) See Law Reviews.


California Senate Establishes Criminal justice Study Commission

By a vote of 23-12, the California Senate passed a resolution establishing the California Commission on the Fair Administration of Justice, a panel of experts who will investigate the state's criminal justice system and present a series of recommendations to the legislature and governor based on their findings. Members of the panel will be appointed by the Senate Committee on Rules and will be charged with holding a series of meetings and public hearings to determine why innocent individuals have been wrongly convicted in the state and what safeguards should be put into place to improve the current policies. The panel will review existing data and research about California's justice system and will solicit further comment from scholars, judges, prosecutors, law enforcement, public and private defense attorneys, elected officials, victims' family members, and other experts. The Senate-imposed deadline for recommendations from the panel is December 31, 2007. The formation of the Commission comes in the wake of a series of reports and developments drawing attention to the flaws in California's criminal justice system in general, and its death penalty system in particular. A 2003 review of California's capital punishment system in the Santa Clara Law Review identified more than 80 flaws, including a lack of independent DNA review for prisoners with innocence claims, a lack of training for homicide detectives and lawyers regarding the unreliability of "jailhouse snitches," and the failure to establish state-wide qualifications, education and training for judges and lawyers handling capital cases. (See California Senate Resolution No. 44 and Press Release from California's Death Penalty Focus, August 31, 2004) See Studies.


Discovery of Lost Evidence Is the Latest Embarrassment for Nation's Leading Death Penalty Jurisdiction

The discovery of 280 unopened and mislabeled boxes of evidence found in the Houston Crime Lab's property room could impact as many as 8,000 cases, including many cases where defendants have sought evidence to prove their innocence. Investigators began sorting through the boxes this month, finding an array of evidence that ranged from a fetus and human body parts to clothes and a bag of Cheetos. Although the boxes were located nearly a year ago, the cataloging of their contents has just begun and could take up to a year to complete. Some of the evidence may be linked to the 379 cases in which prisoners convicted in Harris County have requested the retesting of DNA evidence to establish their innocence. If new evidence in these cases is found, prosecutors will have to go back to court and admit that some of the evidence previously determined to be lost or destroyed is available after all. District Attorney Chuck Rosenthal is now seeking a full-scale independent investigation of the lab, an action he had previously resisted. Houston Mayor Bill White noted, "It's hard to get away from the fact that sloppiness in anything of this matter is inexcusable." Barry Scheck of the New York City-based Innocence Project added, "This is in a league by itself...(it's) unparalleled in the Houston police lab's legacy of fraud, incompetence, and confusion." The Crime Lab's toxicology division, which tested DNA, blood and hair evidence, was shut down in January 2003 for poor work habits and inaccurate findings determined by an unskilled staff. The investigation of that department has led to at least one exoneration on the basis of DNA evidence retesting. (New York Times and Houston Chronicle, August 27, 2004). The discovery of this lost evidence is the latest development in an on-going investigation of the Houston Crime Lab and Police Department in Harris County, Texas, the nation's leading jurisdiction in executions.


RYAN MATTHEWS IS 115th DEATH ROW INMATE FREED

Jefferson Parish prosecutors today dismissed all charges against former Louisiana death row inmate Ryan Matthews. He became the nation's 115th death row inmate to be freed according to the Death Penalty Information Center (DPIC). Matthews was sentenced to die in 1999 and spent nearly five years on death row before DNA evidence helped clear him of a murder that occurred just two weeks after his 17th birthday. (The U.S. Supreme Court will consider whether death sentences for 16- or 17-year-olds are constitutional in October.)

"The growing number of innocence cases provides overwhelming evidence that the death penalty is far too risky," said Richard Dieter, Executive Director of DPIC. "Thank goodness for DNA testing - otherwise Ryan could be dead. One has to wonder about the many cases without such evidence."

In June 2004, Matthews was released to his family on bond after prosecutors received results from seven DNA profiles completed on the mask, shirt, and glove worn by the gunman in the crime for which Matthews was wrongly convicted. Prosecutors released Matthews and began to reexamine the case after each of the genetic profiles found no trace of MatthewsÕ DNA on evidence recovered from the murder scene. The DNA tests did link the evidence to another man who is in prison in Louisiana for an unrelated killing that occurred just a few blocks from the murder in Matthews' case.

Matthews is the third death row inmate to be freed in 2004, and the seventh to be exonerated in Louisiana since 1981. The other 2004 exonerees were Alan Gell of North Carolina (February) and Gordan "Randy" Steidl of Illinois (May). In 2003, 10 persons were freed from death row in the United States, equaling the most exonerations in a single year since the death penalty was reinstated.

For more information about this case, contact Matthews' attorneys, William Sothern at (504) 251-8346 or (504) 529-5955 and Clive A. Stafford Smith at (504) 338-9867. Those seeking additional information on the DNA tests in this case may contact Barry Scheck or Nina Morrison at The Innocence Project in New York City at (212) 364-5357. Please also contact DPIC for further information.

(DPIC Press Release, August 9, 2004)


Houston Crime Lab Scandal Escalates

The possible exoneration of a man convicted of rape in 1987 has led investigators of the Houston police department crime laboratory to conclude that the lab's reliability crisis may be worse than was first anticipated. This revelation could lead to re-testing of evidence in thousands of additional cases from the past 25 years. Six independent forensic scientists said that a crime laboratory official either lacked the basic knowledge of blood typing or knowingly gave false testimony leading to the conviction of George Rodriguez for rape nearly two decades ago. Rodriguez's case led the panel to conclude that the official, who later became head of crime lab's DNA unit, might have offered "similarly false and scientifically unsound" reports and testimony in other cases. Their conclusion escalates the number of crime lab cases to be reexamined from 360 to an estimated 5,000 - 10,000 cases, a number that would surely include some capital murder trials from Harris County. According to forensic expert Barry Scheck of The Innocence Project in New York City, "We know already that they couldn't do DNA testing properly. Now we have a scandal that calls into question many thousands more cases. And this jurisdiction has produced more executions than any other county in America." Of the 323 people executed in Texas since the death penalty was reinstated, 73 have been from Harris County. The Houston DNA lab was shut down shortly after a state audit found that DNA technicians there had misinterpreted data, were poorly trained and kept shoddy records. In many cases, the technicians used up all available evidence, making it impossible for defense experts to refute or verify their results. (New York Times, August 5, 2004)


POSSIBLE INNOCENCE: Federal Judge Throws Out Texas Capital Conviction

A federal judge has thrown out Ernest Ray Willis' capital conviction after finding "strong reason to be concerned that Willis may be actually innocent" and that West Texas authorities needlessly drugged him and concealed evidence at his trial. The decision casts doubt on Willis' 1987 conviction for the arson-murder of two women in Pecos County, a crime that another death row inmate, David Long, later confessed he had committed. In his ruling, U.S. District Judge Royal Furgeson said that anti-psychotic medication used incorrectly by prison guards to treat Willis' chronic back pain hampered his ability to defend himself, and that his defense attorneys did not adequately represent him during the proceedings. Furgeson also noted that during Willis' trial, prosecutors suppressed a psychologist's report revealing that Willis was not dangerous, a key issue in death penalty cases. Furgeson stated that Texas' highest criminal court erred when it dismissed these serious concerns and then he reiterated concerns raised by a state trial judge who four years ago ruled that Willis never received a fair trial. Willis remains on death row in Texas while state prosecutors decide whether to appeal the ruling, seek a new trial, or set him free. Officials have until November 18th to make their decision about how to proceed with the case. (San Antonio Express-News, July 27, 2004) See Representation.

POSSIBLE INNOCENCE: New Evidence Throws Doubt on an Ohio Death Penalty Case

In an editorial entitled "Too Many Questions" that followed a two-part news series examining new information that casts doubt on the guilt of Ohio death row inmate John Spirko, the Mansfield News Journal of Ohio called for a re-examination of Spirko's case before the state allows an execution to go forward. A federal judge in the same case has said he has considerable doubts about the lawfulness of the case against Spirko. The editorial noted:

It's not often we call for careful reconsideration of the criminal case involving an inmate on death row at the Mansfield Correctional Institution. The judicial system in death penalty cases has many checks and balances along the way.

After an examination of the facts surrounding the case, with the benefit of two decades of hindsight, we believe many questions should be answered before this ultimate penalty is exacted.

In a recent two-day series, the News Journal offered information that raises questions about Spirko's role in the killing of Betty Jane Mottinger. These questions are led by the fact prosecutors decided not to bring accused accomplice Delaney Gibson to trial, a move that has Spirko and his attorneys renewing efforts to get a new trial.

Gibson faced a capital murder charge for the crime while serving 15 years of a 20-to-life sentence in Kentucky for an unrelated murder, but was paroled in July 2001.

At issue are photographs, receipts and other evidence that show a bearded Gibson in North Carolina the night before the crime, which happened at 8:30 a.m. more than 500 miles away in Elgin, near Indiana. Spirko obtained the photographs from postal records after a 10-year fight, and argues the state inappropriately concealed the Gibson alibi.

The state's key eyewitness testified she was 100-percent certain she saw a clean-shaven Gibson outside the post office the morning of the murder. She was shown an old mug shot of him without a beard and never saw him at trial because he escaped a Kentucky jail and was on the run.

In order for this murder to have occurred in the manner which the state alleges, Gibson must have finished visiting with relatives in North Carolina early Sunday evening, shaved his beard, jumped in a vehicle and drove more than 500 miles through the night to northwestern Ohio. Spirko, a convicted murderer and former cellmate of Gibson's, was paroled 13 days earlier and was living in Swanton with his sister. He allegedly met Gibson and the pair made the two-hour drive to the tiny village of Elgin, where they robbed the post office of less than $100 before kidnapping and murdering the postmistress.

No physical evidence links Spirko to the crime: He matches none of the fingerprints lifted, no blood evidence, no fibers, no murder weapon, no burglary proceeds.

The chief link is the stories Spirko told trying to bargain himself into the witness protection program and get his girlfriend out of trouble for smuggling him hacksaw blades into the county jail, where he was being held on unrelated assault charges. He admitted his involvement in the killing, according to a postal inspector. That is the primary evidence against him. It's an admission he now denies.

In a recent opinion, U.S. Circuit Court Judge Ronald Lee Gilman said the case record "leaves me with considerable doubt as to whether he has been lawfully subjected to the death penalty."

Spirko should not be executed until those questions and doubts have been answered.

(Mansfield News Journal, July 8, 2004)


Freed Death Row Inmate Awarded Large Settlement Based on Poor Representation

Roberto Miranda, a Cuban native who spent 14 years on Nevada's death row before being cleared of all charges and freed, has settled a lawsuit against Clark County, the public defender's office, and two former Las Vegas police detectives for $5 million. Miranda's conviction and death sentence were thrown out in 1996 when a federal judge ruled that the defense attorney who represented him during his 1982 trial had committed glaring errors. The judge ordered a new trial, but prosecutors declined to proceed with the case and Miranda was then freed from prison. He filed a civil complaint two years later in 1998, arguing that his civil rights were violated when public defenders did virtually nothing to defend their Spanish-speaking client after he performed poorly on a polygraph examination by an English speaking examiner. He also claimed that police withheld exculpatory evidence during his trial. At first, a federal judge threw out the suit, finding that Miranda could not sue the county or the public defenders office regarding his representation. The Court of Appeals for the Ninth Circuit later reinstated the case, and the U.S. Supreme Court declined to review the Ninth Circuit's ruling, thereby opening the door for similar suits around the country. Miranda's attorney, JoNell Thomas, stated, "There's no amount of money that will give him back those 14 years." (Associated Press, June 29, 2004; see also Spence, Maoriarity & Shockey Press Release, June 29, 2004).

POSSIBLE INNOCENCE: DNA Evidence Leads to Juvenile Offender's Release

Following a fifth round of DNA tests, a Louisiana death row inmate has been released on bond while awaiting a new trial. Earlier this year, Ryan Matthews' conviction and death sentence were overturned. The recent round of DNA tests on a ski mask, which prosecutors claimed was worn by Matthews during the crime, excluded Matthews but matched the genetic markers of another inmate. To date, no physical evidence linking Matthews to the crime has been found. Following the latest round of DNA testing, the Jefferson Parish District Attorney's office did not oppose Matthews' request for bond. Matthews was a juvenile at the time the crime was committed. His attorneys indicated that he suffers from mental retardation and a seizure disorder. (Times-Picayune, June 23, 2004) See Juvenile Death Penalty.


POSSIBLE INNOCENCE: Newspaper Explores Case of Pennsylvania Death Row Inmate

In an exclusive two-part series titled "Snitch Work," Philadelphia's City Paper explores the possible innocence of Pennsylvania death row inmate Walter Ogrod. Investigative writer Tom Lowenstein describes Ogrod's first trial, which resulted in a mistrial when 11 of the 12 jurors voted for acquittal. In Ogrod's second trial in 1996, the state employed a notorious jailhouse snitch, John Hall, to strengthen their case against Ogrod, who continued to maintain his innocence. Lowenstein's "Snitch Work" series examines Ogrod's case, including an alledged coerced confession and police misconduct, the failure to find any physical evidence linking Ogrod to the 1988 murder of 4-year-old Barbara Jean Horn, and the possibility that tests on DNA evidence from another child-murder case could exonerate Ogrod. The articles also provide a closer look into the methods of jailhouse snitches, including comments from John Hall about how he helped to send Ogrod to death row. (Philadelphia City Paper, June 17 & 24, 2004) Read the "Snitch Work" series.


Texas Juvenile pardoned After Faulty Lab Work Exposed

Texas Governor Rick Perry has issued a pardon on the basis of innocence to Josiah Sutton, a juvenile offender who had served four years of a 25-year prison term before new DNA tests proved his innocence. The faulty DNA results used to convict Sutton in 1998 were processed by the now thoroughly discredited Houston Police Department crime lab, the same facility that processed DNA and other forensic evidence used in cases that have resulted in death sentences. The lab was shut down in 2003 after questions about the quality and accuracy of its analysis surfaced. Sutton's case is one of almost 400 cases being revisited by private labs to check the Houston crime labs' work. "Based on the DNA testing, court determination and unanimous decision of the (Texas Pardons and Paroles) board, it was the appropriate Ð and only Ð decision," said Perry spokeswoman Kathy Walt. (Houston Chronicle, May 14, 2004)


DEATH PENALTY CRISIS CONTINUES AS ANOTHER INMATE ABOUT TO BE FREED

Gordon "Randy" Steidl is scheduled to be freed from an Illinois prison today (May 28th), 17 years after he was wrongly convicted and sentenced to die for the 1986 murders of Dyke and Karen Rhoads. He will be the nation's 114th death row inmate to be exonerated and the 18th freed in Illinois. The case against Steidl has long drawn criticism from journalists such as Eric Zorn of the Chicago Tribune, and investigators familiar with the facts of the crime. An Illinois State Police investigation in 2000 found that local police had botched their investigation so badly that innocent men, Steidl and his co-defendant Herbert Whitlock, had been wrongly convicted. Steidl won a new sentencing hearing in 1999 because of the poor representation he had received at trial. At the conclusion of his re-sentencing hearing, he was given a sentence of life in prison. In 2003, a federal judge ordered a new trial for Steidl, stating that if all the evidence that should have been investigated had been presented at trial, it was "reasonably probable" that a jury would have acquitted Steidl. Following the federal ruling, the state reinvestigated the case, including tests on DNA evidence, and found no link to Steidl. Based on the results of the investigation, State Attorney General Lisa Madigan decided not to appeal the federal ruling and Edgar County prosecutors plan to announce today (May 28) that they will not retry the case. Steidl has maintained his innocence since his arrest. (Chicago Tribune, May 27, 2004) Gov. George Ryan of Illinois had pardoned 4 death row inmates based on their innocence in January 2003, while commuting from death to life the sentences of 167 other inmates. Thirteen other death row inmates had been freed earlier in Illinois, leading to the moratorium on executions that remains in place today. See Illinois Developments.

TRUE MURDERER GETS LIFE 11 YEARS AFTER DEATH ROW INMATE IS FREED

Maryland prosecutors used the same DNA evidence that freed Kirk Bloodsworth from Maryland's death row to secure a life-in-prison sentence for Kimberly Shay Ruffner, the man who has now confessed to the 1984 murder of Dawn Hamilton. Bloodsworth spent years on death row for the rape and murder of Hamilton before DNA evidence conclusively showed that he could not have committed the crime. In 1993, he became the first death row inmate in the country to be freed on the basis of DNA testing. Despite the fact that Ruffner was a known sexual offender with an interest in young girls who lived near the scene of the Hamilton murder, police failed to link him to the crime and instead focused on Bloodsworth. It was not until a decade after Bloodsworth's release, in August 2003, that prosecutors tested the DNA from the crime scene against samples taken from offenders within their system. They discovered that it matched Ruffner, who was in prison serving a 45-year sentence for a similar attack that occurred just three weeks after Bloodsworth's arrest for the Hamilton murder. Following the discovery of this match, prosecutors apologized to Bloodsworth for wrongly convicting him of the crime and for not disputing claims that he was guilty of the crime despite his exoneration from death row. Prosecutors formally charged Ruffner shortly after the DNA match came to light and in late May 2004 successfully won a life sentence conviction, which Ruffner will begin to serve after his current sentence is completed. (The Baltimore Sun, May 22, 2004)


POSSIBLE INNOCENCE: Former Massachusetts Death Row Inmate Released After 30 Years in Prison

Laurence Adams, who was sentenced to death in Massachusetts in 1974 shortly before the state finally abandoned capital punishment, was released on May 20 after spending three decades of his life in prison. In April 2004, a judge overturned Adams' conviction when new evidence, including conflicting statements from the state's star witness and a statement from a witness who said two other people committed the murder, cast doubt on his guilt. Superior Court Judge Robert A. Mulligan said that he vacated the conviction to "avoid a miscarriage of justice." Suffolk County prosecutors must decide by May 24 whether to appeal Mulligan's decision or whether they will retry Adams. "You canÕt be bitter because you canÕt stop the clock," Adams said. "I did what I had to do in the circumstances in which I was placed. I did everything positive, and I hoped for this day." (Associated Press, May 20, 2004)


North Carolina Lawyers' Group Recommends Overhaul of Death Penalty

After a review of North Carolina's death penalty, the North Carolina Academy of Trial Lawyers has issued a series of 11 recommendations that aim to address issues of fairness and accuracy in the state's capital punishment statutes. In addition to recommendations addressing hidden evidence, mistaken eyewitness identifications, discrimination, and unreliable confessions, the group urged North Carolina lawmakers to enact a moratorium on executions while they consider implementing reforms to make the system more reliable. James Exum, former Chief Justice of the North Carolina Supreme Court, stated, "The Academy's analysis includes important questions of legal procedure and process. We should address them to insure that we are doing all we can not only to prevent an innocent person from being executed, but also to protect the public by making sure that the right person is convicted and kept off our streets." The Academy's recommendations come as North Carolina's legislature prepares to consider imposing a moratorium on executions, and just weeks after the exoneration of two North Carolina men who had been wrongly convicted of murder, Alan Gell and Darryl Hunt. Hunt spent 18 years in prison, while Gell had spent many years on death row. (North Carolina Academy of Trial Lawyers Press Release, May 6, 2004) Read the Press Release and Recommendations.


Scientific Experts Say DNA Evidence Not "Infalible"

Scientists who are skeptical of Massachusetts Governor Mitt Romney's claim that DNA is "infallible" evidence in a death penalty case have voiced concern about the assumption, noting that there is no way to avoid all possible instances of human error and that the evidence does not always prove a person's guilt or innocence. Theodore D. Kessis is the founder of Applied DNA Resources, based in Columbus, Ohio, and a faculty member at the John Hopkins School of Public Health in Baltimore. He provides expert testimony and analysis to the legal community, including reviews of protocols used by labs that analyze DNA evidence, and notes, "[L]ike anything that involves humans, there is always the possibility of error in DNA testing. I would not go so far as to say that DNA is foolproof. The spectrum of a DNA test may range from foolproof to something's wrong here. DNA testing is a tool, and how that tool is used in a criminal trial may depend upon what you are trying to prove. Don't misunderstand me, DNA is an invaluable tool. But in and of itself, DNA cannot tell you who committed a crime." Dean Wideman, a forensic scientist from Texas, echoed Kessis's concerns and noted that DNA evidence has its limitations. "DNA evidence has been used to acquit as often as convict... What it doesn't tell us is the stuff that lawyers are good at using - it doesn't tell us whether semen left is the result of rape or consensual sex. It doesn't tell us what time a person was at a scene. It does not tell us why a person was at a scene... For all we hear about DNA evidence, oftentimes it is not going to move a case in one direction or another," he said. (Cape Cod Times, May 6, 2004) See New Voices.


Investigation Reveals Cases of Innocence in Massachusetts

As Massachusetts Governor Mitt Romney seeks to reinstate capital punishment with a "foolproof" system (see earlier item), a news investigation has revealed that 22 state men have served lengthy prison terms over the last two decades for rapes and murders that they did not commit. Most of the wrongly convicted inmates were black. Experts say that Boston's Suffolk County prosecutors have wrongly convicted the second highest number of innocent people in the nation, falling closely behind error-plagued Chicago. In recent years, the Boston Police Department and District Attorney's Office have come under heavy criticism for conducting overly narrow investigations, aggressive interrogations, using unreliable eyewitness testimony, and botched DNA and ballistic investigations. Ulysses Rodriguez Charles, who served nearly 20 years in jail before new DNA tests led to his exoneration, stated, "I look at it like it was a death. I was just existing. I was just breathing. My life had ceased... This goes on all the time. It's happening now as we speak. It's just unfortunate it happened to me." (Boston Herald, May 5, 2004)



Massachusetts District Attorneys Criticize Governor's Death Penalty Plan

District attorneys from several Massachusetts counties, including Suffolk, Norfolk, Middlesex, Essex and Barnstable, had strong reservations about Governor Mitt Romney's attempt to establish a nearly "foolproof" death penalty system in the state. Some noted that nothing can eliminate the possibility of human error in such cases. The district attorneys said that the state's medical examiner's office and crime labs are currently overwhelmed with work, and that the labs do not have the capacity to add the additional responsibility of carrying out Romney's plan. "Let's fix what's wrong first," said Barnstable District Attorney Michael O'Keefe. "We're significantly behind in the Commonwealth in the delivery of forensic services, relative to other jurisdictions."

The plan was created by an 11-member death penalty commission appointed by Romney, and the commission members note that their recommendations will come with a hefty price-tag. Norfolk County District Attorney William R. Keating estimates that using the standards would cost Massachusetts taxpayers at least $5 million per death penalty case, nearly as much as his entire $6.8 million annual budget that funds approximately 19,000 criminal complaints a year. Suffolk County District Attorney Daniel Conley said the release of four wrongly convicted or indicted Massachusetts inmates since he took his job in 2002 "has simply convinced me that while technology like DNA is critical in determining oneÕs guilt or innocence, the administration of justice is a human endeavor, and we're all fallible." (Boston Globe, May 4, 2004) Read the Commission Report.


Alabama's Death Penalty Problems Continue

Questions about the accuracy and fairness of Alabama's death penalty continue to surface as illustrated by a series of recent federal court rulings granting two new trials and one new sentencing hearing. All of the rulings were based on inadequate representation provided to the defendants. "Counsel simply provided no defense to the death penalty," Chief U.S. District Judge U.W. Clemon of Birmingham wrote March 31 in giving one of the inmates a new trial. The man has been on death row 22 years. Most of Alabama's death row inmates were convicted when the state had extremely low caps on indigent defense fees at trial. In addition, the state has not modified its law to comply with the U.S. Supreme Court decision in Atkins v. Virginia (regarding the mentally retarded), and maintains that no changes are needed to comply with Ring v. Arizona (regarding the jury's role in determining death eligibility). Bryan Stevenson, an Alabama defense attorney and director of the Equal Justice Initiative, noted: "What that means is that every month, every season, more people are being tried and sentenced to death in what are probably unconstitutional procedures. Rather than deal with it now and save family members of victims, and taxpayers, prosecutors and defense lawyers all the agony of years of appeals, we're acting as if it's not a problem." Moreover, he said, "We're the only state that does nothing to make sure Death Row prisoners get legal representation to pursue their post-conviction appeals. And the reason why that's a huge deal is that many innocent Death Row prisoners, those prisoners whose convictions have been illegally obtained, have proved their innocence or the illegality of those convictions in these post-conviction appeals." (Associated Press, May 2, 2004) See Supreme Court, Representation, and Mental Retardation.

POSSIBLE INNOCENCE: Texas Man May Soon Be Freed From Death Row

More than two decades after Max Soffar was sentenced to die for a Houston-area triple murder, an appellate court has ruled that his court-appointed attorney inadequately represented him during his 1980 trial and that he deserves to be retried within 120 days or freed from Texas's death row. Although no evidence linking Soffar to the crime was ever found and his accounts of the murders, contained in what are believed to be false confessions, varied vastly from several eyewitnesses, Soffar's defense attorney failed to pursue evidence that could have proven his client's innocence. The attorney did not interview the sole surviving witness to the murders nor conduct a ballistics investigation that could have strengthened his case. In its opinion, the court wrote, "Defense counsel offered no reasonable explanation for why they did not take advantage of these opportunities. [It was] likely the result of indolence or incompetence."

Three years ago, when the Fifth Circuit of the U.S. Court of Appeals rejected Soffar's earlier motion for a new trial, Judge Harold R. DeMoss wrote in dissent: "I have laid awake nights agonizing over the enigmas, contradictions, and ambiguities which are inherent in this record. However, my colleaguesÉhave shut their eyes to the big picture and have persuaded themselves that piecemeal justice is sufficient in this caseÉI am glad I will not be standing in their shoes, if and when Soffar is executed." Soffar's current attorney has said that he believes the more recent Fifth Circuit ruling will stand. (Dallas Morning News and KHOU News, April 22, 2004) Read the opinion Soffar v. Dretke. See Representation.

NEW RESOURCE: The Problem of False Confession in a Post-DNA World

"The Problem of False Confessions in a Post-DNA World," a recent study published in the North Carolina Law Review, found that juvenile offenders were involved in 33% of the cases where the defendant confessed to a crime that he or she did not commit. Ninety-two percent of the cases involved false confessions from individuals under the age of 40, and more than half were under the age of 25. According to the studyÕs authors, law professors Richard Leo of the University of California at Irvine and Steve Drizin, of Northwestern University, this finding suggests that those under the age of 18 are "more vulnerable to police pressure during interrogation." The study examined the largest group of proven false confessions involving serious felonies ever collected, many of which were recently confirmed and uncovered through the use of DNA technology. Researchers concluded that false confessions "occur with an alarming frequency," including about a quarter of all wrongful convictions and in at least 9 cases that ended in a wrongful capital conviction. Leo and Drizin found that factors such as police pressure to solve serious crimes, age of the accused, and the length of the interrogation can play a role in producing a false confession. (See San Diego Union-Tribune, April 15, 2004; 82 North Carolina L. Rev. 891 (2004)). See Resources.

Death Sentences Decline Dramatically in North Carolina

According to District Attorney Tom Keith, death sentences in North Carolina have dramatically declined because jurors are increasingly skeptical of the justice system. Last year, 6 people were sent to North Carolina's death row, far less than the 26 who were given death sentences in 1999. Keith, who is moving resources away from death penalty cases and to aggressively targeting gun criminals before they kill, believes that a number of high-profile wrongful convictions and DNA exonerations have contributed to the trend toward fewer death sentences. "We're losing the public-relations war. I'm not going to keep trying them and trying them and trying them because I'm in love with the death penalty. If we're wasting our time, we won't try them," Keith stated. "If this community doesn't want to convict people of capital murder, I'll listen to what the people say." Concerns about innocence and fairness have also spurred death penalty reforms in recent years, including a bill to ban the execution of those with mental retardation and legislation to provide prosecutors with the option to take guilty pleas in capital cases in exchange for life-without-parole sentences. (Associated Press, March 14, 2004) Four people have been exonerated from North Carolina's death row, including Alan Gell in February 2004. See Sentencing. See DPIC's Year End Report.

Formerly Exonerated Death Row Inmate Now Cleared of All Charges

Steven Manning, a former Chicago police officer who was exonerated from Illinois' death row in 2000 but remained in a Missouri prison on another charge, has been freed after Missouri prosecutors dropped all charges against him. In January 2000, 7 years after he was sentenced to death in Illinois, a judge threw out Manning's death sentence and conviction because the state used inadmissible testimony to secure his conviction. Cook County prosecutors later dismissed their case against Manning because the testimony of the remaining key witness in the case, Tommy Dye, was unreliable. Dye, a notorious jailhouse snitch, had a long history of lying under oath and of receiving benefits from prosecutors in exchange for testimony in cases. After Illinois prosecutors dropped their case, Manning challenged his Missouri kidnapping conviction. This charge was also based on unreliable informant testimony, most notably statements given by a kidnapping ringleader who later complained that the state failed to pay him the money they had promised for his testimony. The state also used the testimony of a questionable eyewitness who failed to accurately identify Manning during his first trial. "I'm not sure a kidnapping even occurred," said defense attorney Cynthia Short. "Not only do I think Steve was never involved, I don't know it happened," she said after the Missouri charges were dismissed in February 2004. Manning is now free and is suing two FBI agents for their role in his wrongful convictions. (Chicago Tribune, Feb. 27, 2004) See Innocence. There have been 113 death row inmates exonerated since 1973. Manning's reversal in Illinois led to a moratorium on all executions in that state that remains in place.

  Innocence Concerns Spur Calls for Higher Standard in Death Penalty Cases

Attorneys from the New York Capital Defender Office have followed the lead of various death penalty experts and petitioned the New York Court of Appeals to require a higher standard of proof of guilt before a death sentence may be sought. The current standard of "beyond a reasonable doubt" of guilt applies in both capital and non-capital cases. Because of the evidence of mistakes in death penalty cases, the attorneys called for proof "beyond any doubt" in such cases. Frank Keating, a senior Justice Department official in the Reagan administration who tried to raise the level of certainty to secure a capital conviction during his recent tenure as Governor of Oklahoma, noted, "I am certainly no shrinking civil libertarian, but I think if you're going to take somebody else's life, you need to be convinced to a moral certainty." Professor James Liebman of Columbia Law School, who has extensively studied the error rate in capital cases, stated that the movement toward a higher standard of proof is a logical outgrowth of the effort to make the death penalty more reliable. (New York Times, January 11, 2004)