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.
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.”
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.
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. Porter has since recanted his testimony, stating that he lied in order to get back at his cousin for stealing money from him.
Defense attorney Joseph Cheshire stated, "I think in the last five to six years, there's a fairly well-demonstrated pattern of wrongful convictions in North Carolina that are only now coming to light because of our new open discovery law."
(“Prosecutor Drops Charges Against Former Death Row Inmate,” by Martha Waggoner, Associated Press, December 11, 2007). See also Innocence.
Hoffman is the sixth North Carolina person to be exonerated of capital charges and the 126th in the nation since 1973. He is the third person exonerated in 2007, and the second in December. Earlier in December, Michael McCormick was acquitted by a jury at his retrial in Tennessee. All charges were dismissed against Curtis McCarty in Oklahoma earlier this year.
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."
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.
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. Comparative bullet-lead analysis, based on the assumption that all bullets in one batch will be chemically similar, examines the chemical compositions of bullets to determine if crime-scene bullets match bullets in a suspect’s possession. FBI labs have since concluded that all bullets in a single batch are not always chemically matched “because subtle chemical changes occurred throughout the manufacturing process.”
FBI concerns over comparative bullet-lead analysis were first documented in 1991, and a study by two former FBI lab technicians challenging the technique was completed in 2001. In 2004, the National Academy of Sciences also rejected comparative bullet-lead analysis, stating “that decades of FBI statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box were so overstated that such testimony should be considered ‘misleading under federal rules of evidence.’” A year later, FBI lab director Dwight Adams recommended to FBI Director Muehller that the Bureau abandon the comparative technique and discourage prosecutors from using it in future trials.
Adams believes that the government has an obligation to review cases in which the technique was used and to notify courts of any convictions that could have been erroneously based on the technique. "It troubles me that anyone would be in prison for any reason that wasn't justified. And that's why these reviews should be done in order to determine whether or not our testimony led to the conviction of a wrongly accused individual," Adams said to the Post. "I don't believe there's anything that we should be hiding."
The Post and 60 Minutes conducted a nationwide investigation, researching court files and holding interviews with dozens of lawyers and scientific experts. Their research yielded at least 250 cases in which evidence from comparative bullet-lead analysis was introduced. More than a dozen of these convictions have been reversed or are now being challenged as to whether innocent people were sent to prison.
The FBI has said it would conduct a national review of these cases and create a system where future scientific testimony can be monitored.
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. The judge's order also revealed that Chapman's defense attorneys did not adequately represent him during his trial, and that expert testimony cast doubt that one of Chapman's alleged victims, Yvette Conley, was murdered at all. The testimony indicated that Conley may have died of a drug overdose. "The notion that a defendant can be put to death when no crime in fact occurred is troubling at best," wrote Judge Ervin after holding a series of evidentiary hearings examining Chapman's innocence claims.
Chapman was sentenced to death for the 1992 murders of Conley and Jean Ramseur. At first, prosecutor Jason Parker offered Chapman a plea bargain because "it wasn't the world's greatest case," but Chapman insisted that he was innocent and wanted to clear himself in court. Judge Ervin noted that among the covered-up evidence supporting Chapman's innocence claim was a witness who said he saw a man with Ramseur on the night of the murder who was not Chapman. Prosecutors also concealed a report that a jail inmate had confessed to Ramseur's murder. The judge explained that Chapman's attorneys did not have access to the report because a detective perjured himself at Chapman's original trial and his testimony during evidentiary hearings was "not credible."
One of Chapman's attorneys, Frank Goldsmith, noted, "After 14 years, Edward Chapman has finally had his day in court. . . . This is a significant step in an innocent man’s quest for justice. We cannot express the degree of our relief that Edward and the families of Ms. Ramseur and Ms. Conley have been granted a new opportunity for the truth to be told and justice to be served."
(Charlotte Observer, November 12, 2007, and Defense Attorneys' Press Release, November 7, 2007).
New Jersey Assembly Speaker Joseph Roberts, Jr. (pictured) has announced that on December 13 members of the Assembly will vote on whether to reduce the state's most severe punishment to life in prison without parole. A spokeswoman for Senate President Richard J. Codey said the Senate is likely to take similar action before the legislative session ends on January 8, though a date has not been set for the vote. If approved by the Legislature and signed by Gov. Jon Corzine, who opposes the death penalty, the move would make New Jersey the first state to vote to abolish capital punishment since the U.S. Supreme Court reinstated it in 1976.
Roberts made the announcement in Trenton after meeting with Sister Helen Prejean, author of "Dead Man Walking." He called New Jersey's death penalty a "flawed public policy" that is costly, discriminatory, immoral and cruel. He added that "the consequences are irreparable if mistakes are made" and said that "the time has come" to consider the abolition measure. Prejean praised the decision and said that New Jersey is "going to be a beacon on the hill."
New Jersey reinstated the death penalty in 1982, but has not executed anyone since 1963. The Legislature imposed a moratorium on executions in December 2005 when it formed a commission that studied the death penalty. The state has eight men on death row.
Eighteen former death row inmates from around the country recently toured North Carolina and called for a moratorium on executions. The tour, one of the largest of its kind and organized by People of Faith Against the Death Penalty and Witness to Innocence, included speaking engagements in churches and public auditoriums, as well as a rally in front of North Carolina's Legislative Building. Two legislators, Rep. Pricey Harrison and Sen. Eleanor Kinnaird, joined the exonerees to lend their support to the group's call for a halt to executions and a study of North Carolina's capital punishment system.
Among the 18 exonerees who shared their stories of wrongful conviction during the tour was Shujaa Graham, who was released from California's death row in 1981. Graham said that those who have been wrongly convicted and sentenced to die must deal every day with the injustice they have endured, noting, "I've been out more than 20 years, and I still suffer today. I saw a lot of my friends executed. As I regained my humanity . . . I learned to start forgiving." Gary Drinkard, who was freed from Alabama's death row after he was acquitted in 2001, added, "I spent seven years, eight months and 21 days locked up. . . . A lot of ex-death row inmates say they don't have a lot of animosity. Well, I have a lot." Drinkard added that he is seeking a halt to executions because the justice system is inherently political. He said that prosecutors and district attorneys often feel pressured to get murder convictions in order to be promoted, and that this reality can lead to wrongful convictions.
Five wrongly convicted people have been freed from North Carolina's death row. Nationwide, there have been 124 death row exonerations.
(The News & Observer, November 3, 2007 & The Daily Tar Heel, November 5, 2007). See Innocence.