News and Developments 2008: Innocence

A three-judge panel of the US Court of Appeals for the 11th Circuit in Atlanta heard arguments in the Troy Davis case on December 9.  The judges weighed whether Davis' new evidence was sufficient to merit a more extensive hearing and perhaps a new trial.  One of the judges, Rosemary Barkett, said she would like to see the innocence claims fleshed out in a further hearing.

Judge Barkett expressed her frustration with the fact that none of the eyewitnesses were shown another primary suspect’s photo or presented with a lineup with him in it.  Barkett also speculated that Savannah police faced so much pressure to quickly solve the high profile murder that they did not focus enough on the other primary suspect.  While acknowledging the possibility of executing an innocent person, Barkett added, “It’s also possible the real guilty person who shot [the victim] Officer MacPhail is not being prosecuted.” 

The Court did not indicate when it would issue a ruling and at the close of the hearing, Judge Dubina called the appeal a “very difficult case.”  Judge Marcus called the case “murky,” without the availability of DNA evidence that could categorically clear Davis. The high profile case has garnered attention as seven of the nine eyewitnesses in the case have recanted their original testimony.

A new study concerning criminal justice procedures in Texas has been released by the Justice Project. Their research found that only 12% of Texas law enforcement agencies have any written policies or guidelines for the conduct of photo or live lineup procedures. Furthermore, they discovered that the few existing written procedures are often vague and incomplete. Eighty-two percent of Texas’ 38 wrongful convictions exposed by DNA testing, which includes non-capital cases, were based largely or exclusively on incorrect eyewitness identifications.

Overall, the study found that most jurisdictions in Texas fail to implement widely endorsed best practices that have been proven to increase reliability of eyewitness testimony. Only 7% or less of all Texas departments have written policies in line with such endorsed best practices designed to minimize eyewitness error.

The Justice Project is a non-profit and non-partisan organization that works to improve the fairness and accuracy of the criminal justice system. The full research report may be found here.

On November 10 in Richmond, Virginia, thirty former FBI agents held a press conference calling for the pardon of four sailors, known as the Norfolk Four, who were convicted of rape and murder. Their convictions were based mainly on their own confessions, which were apparently made out of fear that they might otherwise receive the death penalty. The FBI agents pointed out that DNA and forensic evidence now points to a prison inmate who has confessed as the sole perpetrator of the crimes. They asked Virginia Governor Tim Kaine to pardon the men. “After careful review of the evidence we have arrived at one unequivocal conclusion: The Norfolk Four are innocent,” said Jay Cochran, a former assistant director of the F.B.I. and former special agent who served at the bureau for 27 years. “We believe a tragic mistake has occurred in the case of these four Navy men, and we are calling on Governor Kaine to grant them immediate pardons.”

“We are not bleeding hearts, and we don’t take this type of public action lightly,” said Cochran. “However, we also believe that law enforcement has an obligation to protect the most innocent from wrongful conviction.” The agents joined a long list of notable people calling for a pardon, including 4 former Virginia attorneys general, 12 former state and federal judges and prosecutors, and a past president of the Virginia Bar Association.

A Florida inmate faces execution despite new revelations that the state prompted a trial witness to lie. Inmate Wayne Tompkins was to be executed in Florida on October 28, 2008, but was granted a stay of execution to allow time for the state Supreme Court to review his case. On November 7, the court denied Tompkins' appeal, even though the court acknowledged that a state witness, a jailhouse informant, admitted to providing false testimony at Tompkins' original trial in 1985.

Justice Harry Anstead dissented from the court's ruling, noting that jailhouse informants are often unreliable, and in this case the informant was apparently prompted to lie.  He wrote, "Indeed, if the claim is true, we have a state prosecutor who committed a criminal act in tampering with a witness. Surely, common sense would tell us this is the kind of 'bombshell' disclosure that could change the jury's entire evaluation of the case." Tompkins' attorney Martin McClain cited numerous concerns about the state's case. "This is one of the most troubling cases that I have," he said. "The evidence against Mr. Tompkins is just absurd."  Tompkins' stay of execution expires on Nov. 18.