News and Developments 2007: Innocence

NEW VOICES: Prosecutors Ambivalent About the Death Penalty

In a recent front-page article in the New York Times, Joshua Marquis, the district attorney in Clatsop County, Oregon, and a vice president of the National District Attorneys Association, indicated that most prosecutors with experience in death penalty cases are ambivalent about it: “Any sane prosecutor who is involved in capital litigation will really be ambivalent about it,” said Marquis, who has long supported the death penalty. According to the Times, he said the families of murder victims suffered needless anguish during what could be decades of litigation and multiple retrials. “We’re seeing fewer executions,” Mr. Marquis added. “We’re seeing fewer people sentenced to death. People really do question capital punishment. The whole idea of exoneration has really penetrated popular culture.”

The article also noted that 62% of the country's executions this year occurred in only one state--Texas--and that 40 out of the 50 states had no executions in 2007.

British Man Freed from Ohio Death Row

Kenneth Richey, a British and an American citizen, is expected to be freed soon after spending 20 years on Ohio’s death row for the murder of his ex-girlfriend’s 2-year-old daughter in a 1986 apartment fire. Richey’s conviction was overturned by a federal court in August 2007 after 15 years of appeals that cast doubts on witness testimony and the competency of his defense attorney at the initial trial. More recently, the original evidence presented by arson experts was found to be based on "unsound scientific principles," and it now appears that the fire that killed 2-year-old Cynthia Collins was accidental.

Richey will plead no contest to attempted involuntary manslaughter, child endangering and breaking and entering. He is expected to be sentenced to time already served. Richey’s original trial was heard by three judges after his defense attorney advised him to forgo a jury trial. Prosecutors stated that Richey, who maintained his innocence throughout the trial, did in fact try to save the toddler. The judges, however, did not take that evidence under consideration. His case prompted intervention by Tony Blair, the Pope, the European Parliament and Amnesty International.

Alistair Carmichael, a Scottish Member of Parliament who had campaigned for Richey’s release, stated after he heard the news, “The reality of somebody who is kept locked up in a cell for 23 hours a day for 19 years is quite mind-blowing. It is a dreadful, inhumane and dehumanising system. If one man is off it, then remember there are hundreds of people in America still enduring that dreadful situation.”

NEW RESOURCES: Recommendations for Avoiding Wrongful Convictions

The Justice Project recently released two policy reviews that provide suggestions for preventing wrongful convictions in criminal trials. Using research and data from past exonerations, the new reports, Expanded Discovery in Criminal Cases and Jailhouse Snitch Testimony, point to the places and situations in the criminal justice system where a wrongful conviction can be easily prevented.

Expanded Discovery in Criminal Cases stresses the importance of full evidentiary discovery in criminal cases. “Discovery” refers to how the prosecution must disclose all non-privileged information that is relevant in the criminal case before it goes to trial. The Justice Project notes, “All other aspects of our constitutional system, such as due process and assistance of counsel, depend on complete discovery.” Amongst other solutions, they recommend that uniform, mandatory, and enforced discovery laws be put in place to prevent wrongful convictions.

Jailhouse Snitch Testimony highlights the prevalence of this form of questionable evidence in trials. Jailhouse snitch testimony refers to an inmate testifying against another for his or her own personal gain (e.g., reduced time in prison in exchange for the testimony). It is often used despite being unreliable. According to the report, “A 2005 study of 111 death row exonerees found that 51 were wrongly sentenced to death in part due to testimony of witnesses with incentive to lie.” The Justice Project calls upon prosecutors to raise the standards for admissibility of jailhouse informant evidence at trial, including finding outside corroboration for the informant’s testimony and providing instructions to the jury that alert them to the reliability issues presented by snitch testimony.

INNOCENCE: North Carolina Death Row Inmate is Second in U.S. to be Exonerated this Month

Prosecutors in North Carolina on December 11 dropped all charges against Jonathon Hoffman, who had been convicted and sentenced to death for the 1995 murder of a jewelry store owner. Hoffman won a new trial in 2004 because information favorable to Hoffman was withheld from the defense. During Hoffman’s first trial, the state's key witness, Johnell Porter, had received immunity from federal charges for testifying against his cousin. The defense attorneys, jury, and the judge did not know of the deal.

INNOCENCE: Another Inmate is Exonerated, After 16 Years on Death Row

On December 5, a Tennessee jury acquitted Michael Lee McCormick of the 1985 murder of Donna Jean Nichols, a crime for which McCormick spent 16 years on death row. In his first trial, the prosecution introduced hair evidence from Nichols’ car that the FBI said matched McCormick. DNA testing later found that the hair did not match McCormick and this evidence was not permitted in the new trial. McCormick’s attorney, Karla Gothard said after the trial, "We have been living with this case for years, and we are immensely relieved. I can't imagine what Michael McCormick is feeling."

Special Judge Jon Kerry Blackwood commented, "The way this case has lingered on, there has not been closure for Michael McCormick for 20 years. This system is not perfect, but somehow it works itself out."

INNOCENCE: Study Looks at Life After Exoneration for Those Freed Through DNA

The New York Times investigated the post-exoneration lives of the 206 former inmates who were wrongfully convicted and released through DNA evidence. Fifty-three of the cases involved murder convictions, and more than 25% of those wrongfully convicted had given a false confession or incriminating statement. Working from a list provided by the Innocence Project, the Times gathered information on 137 of the 206 exonerees and were able to interview 115 of those. They found that most DNA-exonerees have “struggled to keep jobs, pay for health care, rebuild family ties and shed the psychological effects of years of questionable or wrongful imprisonment.” Lack of adequate financial compensation only exacerbates the hardships after release.

Compensation for wrongful incarceration varies by state. Of the cases the Times investigated, nearly 40% received no compensation for their time in prison, almost half received at least $50,000 for each year in prison, and the remainder were convicted in states that offer no compensation for wrongful imprisonment. The average time spent in prison for a wrongful conviction was 12 years. Many had to wait almost 2 years before receiving compensation, and even then, they received less government services than paroled prisoners. One exoneree stated, “It’s ridiculous. They have programs for drug dealers who get out of prison. They have programs for people who really do commit crimes. People get out and go in halfway houses and have all kinds of support. There are housing programs for them, job placement for them. But for the innocent, they have nothing.”

After spending 16 years in prison for a crime he did not commit, Jeffrey Mark Deskovic was exonerated by DNA evidence and released from prison in New York. Deskovic was convicted of the 1989 rape and murder of fellow high school student. He was 17 at the time. Now 34, he is trying to get back on his feet – a difficult process with little governmental support, according to the Times.

INNOCENCE: Criminal Convictions in Question after FBI Bullet Evidence Discredited

An investigation by The Washington Post and 60 Minutes has cast doubt on at least 250 criminal cases in which the defendant was convicted based on FBI bullet-lead test evidence. Since the early 1960s, the FBI has used a technique called comparative bullet-lead analysis on an estimated 2,500 cases, many of which were homicide cases prosecuted at state and local levels.

North Carolina Court Cites False Testimony and Official Misconduct in Granting New Trial to Death Row Inmate

Superior Court Judge Robert Ervin ruled that North Carolina death row inmate Glen Edward Chapman is entitled to a new trial based on ample evidence that he was wrongly convicted. Judge Ervin said that law enforcement officials withheld evidence, used false testimony, and misplaced or destroyed important documents that could have supported Chapman's innocence claim.