The StandDown Texas Project

Scott Christianson on a California Legislator's Push to Bring Back Gas

The Sacramento Bee publishes an OpEd, "DAs push for return of the gas chamber," by Scott Christianson, a former New York state criminal justice official.  He's also the author of The Last Gasp: The Rise and Fall of the American Gas Chamber.

State lawmakers are scheduled to conduct a public hearing Tuesday on legislation to overhaul California's dysfunctional system for carrying out legal executions. Much of the proposal is old news, but there is one as-yet unnoticed feature that merits close attention.

California's district attorneys want to bring back the gas chamber. Really. While the plan stands little chance of passage, it reveals just how desperate and out of touch the pro-capital punishment forces have become.

Since 1967, despite spending many hundreds of millions of dollars on the death penalty, California has put to death a grand total of 13 people – two by a procedure of lethal gas that was struck down by the federal courts in the 1990s and the last 11 by a protocol of lethal injection that remains stymied in the courts. Not surprisingly, public opinion has been turning against capital punishment: Last November 48 percent of the electorate voted for Proposition 34, which would have ended the practice.

And:

The use of nitrogen for execution purposes was first suggested in a brief article that appeared in a conservative magazine in September 1995. In it, Stuart A. Creque, a Bay Area freelance writer, called nitrogen asphyxiation a "perfect method of execution," saying nitrogen is "cheap and universally available" material that requires no special safety precautions, and claiming that it would cause painless death without any trauma or damage to human organs.

In 2011 this method was further recommended by Kent Scheidegger, the legal director of the Sacramento-based Criminal Justice Legal Foundation, a conservative public interest law organization that often collaborates with prosecutors to champion the most punitive responses to crime.

In his blog, Scheidegger stated, "The problem with the gas chamber was not the method but the choice of gas." He advocated the use of helium or nitrogen.

"I do not need reports or studies to know that hypoxia is painless," he wrote. All that is necessary, he said, "is retrofit the gas chamber to flush it with helium or nitrogen."

How many appellate judges, scientists or engineers would agree with either of those facile assertions? California law prohibits gassing for euthanasia of dogs or cats. Veterinarians considered it too cruel. But using it on humans would be OK?

Earlier coverage of the California legislation begins at the link; more on Scott Christianson's book, at the link.

Pete Earley on the James Holmes Case

Today's Dallas Morning News publishes the OpEd, "Seeking death penalty in Aurora killings is wrong," by Pete Earley.  He's a former journalist and the author of Crazy: A Father’s Search Through America’s Mental Health Madness.

As the father of an adult with a severe mental illness, I am dismayed by a Colorado prosecutor’s decision to seek the death penalty in the Aurora movie theater attack.

Attorneys for gunman James Eagan Holmes offered to have their client plead guilty in return for a life sentence without parole. That was not good enough for Arapahoe County District Attorney George Brauchler.

After consulting with “800 victims and their families” on the July shootings that left 12 dead and dozens wounded, Brauchler declared that for Holmes, “justice is death.”

Only the most egregious cases should merit the death penalty, and despite the monstrosity of these shootings, executing a defendant who was receiving psychiatric care and who appears to have a severe mental illness violates that high standard.

And:

My son got sick when he was 22. Those of us with mentally ill family members have seen how schizophrenia and bipolar disorder can distort our loved ones’ thinking and sometimes cause them to break the law. Their actions are symptoms of their disorders.

Mental illness does not excuse murder — a fact that Holmes’ attorneys readily acknowledged. But murders spawned in psychosis should be adjudicated differently from those for profit, jealousy or revenge.

Our legal system does a poor job of dealing with mentally ill defendants. The standard legal test is whether the defendant knew at the time of the crime the difference between right and wrong and whether he understood the consequences of his actions. But that’s often a fool’s reasoning when applied to an ill person’s mind.

Earlier coverage of the Colorado case begins at the link.  Related posts are in the mental illness category index.

North Carolina Legislative Roundup

"N.C. Senate taking up capital punishment changes," is the AP report, via the Virginian Pilot.

North Carolina Republican senators say rule changes to capital punishment procedures in the state will help mete out justice upon convicted killers and give closure to families of slain victims.

The Senate scheduled floor debate to on legislation that seeks to end a logjam on North Carolina's death row, where no one has been executed since 2006 due to broad legal appeals.

The bill also would repeal completely the Racial Justice Act — a 2009 law that lays out a method for prisoners to use evidence to attempt to persuade a judge their death sentences should be reduced to life in prison.

WECT-TV posts, "Author advocates for maintaining Racial Justice Act ."  It's by Bailey Hicks.

A UNCW Department Chair and author says the Racial Justice Act needs to stay. As part of Senate Bill 306, Sen. Thom Goolsby is suggesting repealing the legislation.

Dr. Kimberly Cook says that's not a good idea. While writing her book, "Life After Death Row," she interviewed over a dozen people who were exonerated from death row.

"It was very sobering, illuminating, and also inspiring," said Cook. "I was inspired by the strength and determination they had to get through that most terrifying experience and come out of it with a determination to prevail in their case against the wrongful conviction."

She says after conducting interviews and talking to people who were wrongly convicted, she believes racial bias is still present in the judicial system, which is why she says the Racial Justice Act needs to remain in North Carolina.

"When we have racial discrimination that can lead to wrongful death to people of color we have to take that seriously," said Cook.

"Racial Justice Act supporters muster opposition to repeal," is the Raleigh News & Observer report by Craig Jarvis.

Death penalty opponents are planning a news conference to muster opposition to legislation that would repeal the Racial Justice Act and resume executions.

North Carolina Coalition for Alternatives to the Death Penalty will gather with sympathetic lawmakers and people whose relatives have been murdered. The news conference will be Wednesday in the statehouse.

Earlier this month, a repeal bill backed by the Senate leadership – SB306 – was the subject of a news conference by its primary sponsor, Sen. Thom Goolsby, a Republican from Wilmington.

Read more here: http://projects.newsobserver.com/node/27246#storylink=cpy

Earlier coverage from North Carolina begins at the link.

More on Murder at the Supreme Court

The Sunday edition of the Annapolis Capital Gazette reported, "ABC News veterans tackle high court's death penalty cases," written by Theresa Winslow.  Here's the beginning:

Martin Clancy and Tim O’Brien are used to be being in the hot seat.

They’ve visited prison death chambers and sat in the electric chair. “It made my blood run cold,” said Clancy, who lives in Riva.

Writing a book on capital punishment was less difficult. Time proved to be the biggest obstacle for the ABC News veterans.

Clancy and O’Brien came up the idea for the book 20 years ago, but didn’t get started until fairly recently, thanks to busy schedules. They also toiled over the theme.

Once they focused a couple years ago, progress was rapid. “Murder at the Supreme Court: Lethal Crimes and Landmark Cases” was released by Prometheus Books of Amherst, N.Y. last month.

“Behind these Supreme Court headlines are some terrific stories,” said Clancy, 70, who is retired. “It was great fun to find them, great fun to tell them and hopefully, people will find them good reading.”

Earlier coverage of the book begins at the link.

A New Book From University of Tennessee Press

Race, Rape, and Injustice: Documenting and Challenging Death Penalty Cases in the Civil Rights Era is by Judge Barrett J.Foerster, with a foreword by Michael Meltsner.  It's published by the University of Tennessee Press.

Here's more from the book's description:

This book tells the dramatic story of twenty-eight law students—one of whom was the author—who went south at the height of the civil rights era and helped change death penalty jurisprudence forever.

The 1965 project was organized by the NAACP Legal Defense and Educational Fund, which sought to prove statistically whether capital punishment in southern rape cases had been applied discriminatorily over the previous twenty years. If the research showed that a disproportionate number of African Americans convicted of raping white women had received the death penalty regardless of nonracial variables (such as the degree of violence used), then capital punishment in the South could be abolished as a clear violation of the Fourteenth Amendment’s Equal Protection Clause.

Targeting eleven states, the students cautiously made their way past suspicious court clerks, lawyers, and judges to secure the necessary data from dusty courthouse records. Trying to attract as little attention as possible, they managed—amazingly—to complete their task without suffering serious harm at the hands of white supremacists. Their findings then went to University of Pennsylvania criminologist Marvin Wolfgang, who compiled and analyzed the data for use in court challenges to death penalty convictions. The result was powerful evidence that thousands of jurors had voted on racial grounds in rape cases.

This book not only tells Barrett Foerster’s and his teammates story but also examines how the findings were used before a U.S. Supreme Court resistant to numbers-based arguments and reluctant to admit that the justice system had executed hundreds of men because of their skin color. Most important, it illuminates the role the project played in the landmark Furman v. Georgia case, which led to a four-year cessation of capital punishment and a more limited set of death laws aimed at constraining racial discrimination.

A Virginia native who studied law at UCLA, BARRETT J. FOERSTER (1942–2010) was a judge in the Superior Court in Imperial County, California.

MICHAEL MELTSNER is the George J. and Kathleen Waters Matthews Distinguished Professor of Law at Northeastern University. During the 1960s, he was first assistant counsel to the NAACP Legal Defense Fund. His books include The Making of a Civil Rights Lawyer and Cruel and Unusual: The Supreme Court and Capital Punishment.

Related posts are in the books category index.

Tonight on Moyers & Company - The Death Penalty's Fatal Flaws

Tonight's edition of the PBS program Moyers & Company is," The Death Penalty's Fatal Flaws."

The program airs tonight on most PBS stations.  You can check the broadcast time in your market.

Fifty years ago, the Supreme Court’s landmark decision in the case of Gideon v. Wainwright established the constitutional right of criminal defendants to legal representation, even if they can’t afford it. The Court ruled there shouldn’t be one kind of justice for the rich and another for the poor, but the scales of the American legal system still tilt heavily in favor of the white and wealthy. On this week’s Moyers & Company, attorney and legal scholar Bryan Stevenson exposes the system’s failures, and ongoing struggles at the crossroads of race, class and justice.

Later on the show, Martin Clancy and Tim O’Brien, authors of Murder at the Supreme Court, join Bill to share the human stories behind the evolution of capital punishment in America, and the death penalty’s fatal flaws.

The broadcast closes with a Bill Moyers Essay on the hypocrisy of “justice for all” in a society where billions are squandered for a war born in fraud while the poor are pushed aside.

 

 

Moyers also posts, "WATCH: The Death Penalty's Fatal Flaws," at Huffington Post.

Right now, there are more than 3,100 inmates on death row -- more than 60 percent of them members of racial or ethnic minorities. Over time, Supreme Court Justices have fine-tuned the circumstances under which the death penalty may still apply, but no set of laws or jurisprudence can undo wrongful executions -- or, it seems, completely prevent them.

According to journalists Martin Clancy and Tim O'Brien, authors of Murder at the Supreme Court and my guests on this weekend's program, at least 18 inmates were released from death row in recent years because DNA evidence proved their innocence. These cases are among more than 140 death penalty exonerations over the last three decades.

The Annapolis Capital Gazette notes, "Bookworm: Death penalty book authors have signing in Annapolis."  It's by Theresa Winslow.

The authors of a new book about the Supreme Court and death penalty cases have a book signing from 7 to 9 p.m. Saturday at The Annapolis Bookstore.

"Murder at the Supreme Court: Lethal Crimes and Landmark Cases" came out last month. Authors Martin Clancy and Tim O'Brien are ABC News veterans.

The duo is also scheduled to appear on "Moyers & Company" on public television stations this weekend.

Earlier coverage of Gideon's 50th anniversary begins at the link.

Anthony Lewis, 1927-2013

Last week marked the 50th anniversary of the Supreme Court ruling in Gideon v. Wainwright.  Anthony Lewis' classic book, Gideon's Trumpet, has been educating readers about the case, the ruling, and criminal indigent justice since it was published in 1964.  It has remained continuously in print.

Today's New York Time publishes the obituary, "Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85."  It's written by Adam Liptak, the paper's current Supreme Court reporter.

Anthony Lewis, a former New York Times reporter and columnist whose work won two Pulitzer Prizes and transformed American legal journalism, died on Monday at his home in Cambridge, Mass. He was 85.

The cause was complications of renal and heart failure, said his wife, Margaret H. Marshall, a retired chief justice of the Massachusetts Supreme Judicial Court.

Mr. Lewis brought passionate engagement to his two great themes: justice and the role of the press in a democracy. His column, called “At Home Abroad” or “Abroad at Home” depending on where he was writing from, appeared on the Op-Ed page of The Times for more than 30 years, until 2001. His voice was liberal, learned, conversational and direct.

As a reporter, Mr. Lewis brought an entirely new approach to coverage of the Supreme Court, for which he won his second Pulitzer, in 1963.

“He brought context to the law,” said Ronald K. L. Collins, a scholar at the University of Washington who compiled a bibliography of Mr. Lewis’s work. “He had an incredible talent in making the law not only intelligible but also in making it compelling.”

Coverage of the 50th anniversary of Gideon begins at the link.

Trial of Jesus to Be Presented in Boulder & Austin, This Week

Former federal prosecutor Mark Osler wrote, Jesus on Death Row: The Trial of Jesus and American Capital Punishment, in 2009.  It's become the basis for a presentation by Osler and Jeanne Bishop, a Chicago attorney and victim's advocate.

They will be presenting "The Trial of Jesus," on Tuesday, March 26 in Boulder, Colorado at St. John's Episcopal Church; and, on Thursday, March, 18 at First Baptist Church of Austin.  Details are embedded in the items linked below.  They are must-reads.

Sunday's Austin American-Statesman reported, "Drama asks audience to consider Christ, death penalty," by Juan Castillo.

If Jesus were prosecuted today under Texas law, what would we do?

Would we sentence him to a life behind bars, or would we sentence him to death?

An audience at First Baptist Church of Austin will decide Thursday evening at a modern interpretation of the “Trial of Jesus,” where audience members become jurors and mete out his punishment.

In the live, unscripted mock trial, Mark Osler, a former federal prosecutor and now a law professor at the University of St. Thomas in Minneapolis, plays the prosecutor. Jeanne Bishop, a Chicago public defender who teaches law at Northwestern University, plays Jesus’ attorney. Both are against the death penalty, and though they hope that support for abolishing capital punishment can rise from faith communities, they emphasize that there is no argument for or against it during the presentation. “This is not an anti-death penalty diatribe,” Bishop said.

And:

The mock trial came to Austin in a roundabout way. Osler contacted First Baptist Church of Austin pastor Roger Paynter after hearing of Paynter’s passionate sermon on the Newtown, Conn., mass killings, which had gone viral. In the sermon, Paynter talked about the tragedy of children “being gunned down” and of the need for gun control and mental health issues to be addressed.

“Mark wrote me and said, ‘If your church is open to preaching what you said, maybe they’d be open to this event,’” Paynter recalled. “It’s Holy Week; what better time to engage this historic trial and re-examine it through the fresh eyes of the penal code?” Paynter said.

The church, he said, is not taking a stand by hosting the event, but continuing a practice dating back to the 1940s of addressing and debating difficult issues and “allowing that sort of intelligent conversation to go on.”

The Boulder Daily Camera publishes an OpEd written by Bishop and Osler, "Death and Christ."

As Colorado continues to ponder abolishing the death penalty, the role of faith in that consideration will be important. Without the support of Christians, there would be no death penalty in America: A Pew Research Center for People and the Press study released in January 2012 reported that 77 percent of white evangelical Christians and 73 percent of white mainline Protestants supported the death penalty.

There is something deeply ironic about Christian support for capital punishment, since a wrongful execution is part of the faith's central narrative. The trials of Christ and his disciples featured many of the same elements that challenge the death penalty today -- overcommitted prosecutors, a mob mentality, and the unfortunate conviction of those who turn out to be innocent. The Last Supper, even, can be seen as the last meal of a man who knew he was condemned to die.

We are committed Christians who are also criminal attorneys. One is a former prosecutor who now trains future prosecutors, and the other is a public defender who lost her sister, brother-in-law, and their unborn child to murder. We have embarked on an unusual project to challenge Christians to integrate their faith with their beliefs about capital punishment. Our goal is to present the sentencing phase of the trial of Jesus as a real event, under current state law. We have performed it in nine states, from Cambridge, Massachusetts to Pasadena, California. Among other places, it has been presented at Pat Robertson's Regent University, Fuller Theological Seminary, and churches in Virginia, Tennessee, Oklahoma, and Illinois.

The experience of the trial is brief, intense, and challenging. It is not a scripted play; instead, we approach the case as trial lawyers. It is different every time. We call a variety of witnesses and do not know the other's arguments. After evidence and arguments in the trial, the audience divides into groups of 12, which deliberate as juries to a verdict.

Earlier coverage of Mark Osler's writings begins at the link.

Fighting for Their Lives

That's the title of a new book written by Susannah Sheffer, pulbished by Vanderbilt University Press.  It's subtitled, Inside the Experience of Capital Defense Attorneys.

There will be an author event in Austin, Tuesday, March 19, at Book People, our great, independent bookseller at 6th & Lamar, in the heart of Austin.  Book People will be happy to send you a signed copy.

Here's more about the book:

"Sheffer takes readers beyond the courtroom and execution chambers to explore how capital defense attorneys cope when they can’t save a client. ... The book is unexpectedly moving, as when an inmate consoles an attorney who has run out of options, and the author is especially adept at uncovering the ethical and professional nuances of these cases. ...  sobering and intimate ... "

    -- Publishers Weekly

"This is an important book. The death penalty's impact is so much broader than we realize, and these attorneys are affected in ways that even I had not imagined.  I am grateful to Susannah Sheffer for bringing these stories to light."

    -- Sister Helen Prejean, author of Dead Man Walking and The Death of Innocents

"One day the United States will outlaw capital punishment. One day Americans will look back on our time and wonder how people could ever have thought that executing other human beings was a good thing. Meanwhile, some of the most courageous men and women in our midst are lawyers who defend those convicted of capital crimes, attempting to save clients from being murdered by the state. Fighting for their Lives is the story of the heroic but ordinary bravery of these lawyers. Read it and be awed by their grace and intelligence. Read it and be furious at the needless miscarriages of justice. Read it and weep."

    -- Thomas Cahill, author of A Saint on Death Row and How the Irish Saved Civilization

It's also available from Amazon, Barnes & Noble, and your local independent bookseller; also available, Kindle and Nook e-reader editions.  I'll be posting the time and location of other author events as they are set up.

Here's our Q&A with Susannah:

Q. What led you to write this book?

A. I am always interested in people’s internal, emotional experience, and in terms of the death penalty, most of my work has involved looking at, and writing about, its impact on various affected people – particularly murder victims’ family members and family members of people who have been executed. Curiosity about the effect on defense attorneys was sort of a natural outgrowth of that work. I knew that this was a pretty unexplored area of the death penalty landscape, and in fact as I proceeded with the interviews for the book, I learned even more vividly and powerfully how reluctant defense attorneys have been to talk openly about the emotional impact of their work. I’m interested in how people cope with loss and specifically in how people in helping professions -- people who devote themselves to trying to help and even save other people -- manage internally when that effort fails.

Q. We usually only read a short quote from a death penalty lawyer in a news article.  What would you tell people about this group of people.

A. I have to say first that I didn’t set out to interview a random cross-section of capital defense attorneys. I interviewed some of the most dedicated, passionate, committed attorneys out there (of course, there are many other equally dedicated and committed attorneys whom I didn’t interview, but my point is that I didn’t interview anyone for whom this was “just a job”). My interviewees also tended to place a high value on forming relationships, even attachments, with clients – placing themselves at greater emotional risk, in some ways, although you can see in the book that they make a strong case for why they practice in that particular way. In the short quotes in news articles that you’re talking about, an attorney will be talking about the client or the legal issues that the client’s case highlights. This book’s inquiry was about the attorneys’ own experience. Every time they told me a story of a setback in a case, or a last visit with a client, I would keep asking, “And what was that like for you? What was going on inside you when that happened?” So I had the privilege – and it did feel like a privilege – of seeing some of the raw pain and struggle that capital defense involves. I have an indescribable amount of respect for the attorneys I interviewed and all that they encounter.

Q.How did you research the book?

A. I interviewed 20 capital defense attorneys who had lost at least one client to execution. That’s a rather ghoulish criterion, but I was particularly interested in the experience of loss and the emotional impact of being vested with the responsibility of trying to save a life and then sometimes – or, sadly, often – not being able to. I conducted the interviews in person, transcribed the recording of each conversation, and spent a lot of time immersing myself in that material and seeing what themes emerged.  In a few instances I asked follow-up questions over the phone. Because we were discussing such personal and emotional aspects of the work, and because there has not been a culture or a tradition among capital defense attorneys of having these kinds of conversations, I used pseudonyms and omitted identifying details. This meant sacrificing some narrative richness – I couldn’t give much biographical or even physical detail – in favor of an extraordinary emotional richness that I think would not have been possible if I hadn’t offered that confidentiality. It was a trade-off I was glad to make.

Q. How did you first come to work for the repeal of capital punishment?

A. I got involved in anti-death penalty work as part of working on other issues related to prisoners, when I was collaborating with a former prisoner to write his story (that book became In a Dark Time: A Prisoner’s Struggle for Healing and Change, published in 2005). That was in the mid 1990s. Then, as I mentioned earlier, I began working with family members of murder victims and family members of people who have been executed, first as a writer for Murder Victims’ Families for Reconciliation and, since the organization’s founding in 2005, as staff writer and project director for Murder Victims’ Families for Human Rights.

Related posts are in the books index.

Michelle Alexander on Police and the Truth

Michelle Alexander  writes the OpEd, "Why Police Lie Under Oath," for the New York Times.  She is the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness.  Here's the beginning:

THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly.  Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”

The New York City Police Department is not exempt from this critique. In 2011, hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units. “I thought I was not naïve,” he said when announcing a guilty verdict involving a police detective who had planted crack cocaine on a pair of suspects. “But even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

Earlier coverage of Michelle Alexander's book, The New Jim Crow, begins at the link.

 

Kirk Bloodsworth in Maryland

Today's New York Times reports, "A Death Penalty Fight Comes Home."  It' written by Scott Shane.

Kirk Noble Bloodsworth, a beefy, crew-cut man
whose blue T-shirt read “Witness to Innocence,” took the microphone in a church hall here and ran through his story of injustice and redemption one more time. Twenty years ago, he walked out of a Maryland prison, the first inmate in the nation to be sentenced to death and then exonerated by DNA.       

About 60 activists against the death penalty listened with rapt attention, preparing to descend on state legislators to press their case. Maryland appears likely in the next few weeks to join the growing list of states that have abolished capital punishment. Some longtime death penalty opponents say no one in the country has done more to advance that cause than Mr. Bloodsworth. But ending executions in Maryland, the state that once was determined to kill him, would be a personal victory for him.       

Even for proponents of capital punishment, Mr. Bloodsworth’s tale is deeply unsettling.

And:

Even after his release, Mr. Bloodsworth could never quite escape the false charges that had threatened him with execution. He tried to return, he said, to “a normal life,” but he was haunted by what he had learned about the justice system.       

“If it could happen to me, it could happen to anybody,” he said. He threw himself into work against capital punishment and for justice reform, first as a volunteer speaker and later as a professional advocate. Last month he began work as the advocacy director for Witness to Innocence, a Philadelphia-based coalition of exonerated death row inmates who push to end capital punishment.       

The movement to end the death penalty has garnered more support from politicians and the public as it has shifted from moral condemnation of capital punishment to a more practical argument: that mistakes by witnesses and the police inevitably mean that innocent people will be executed. While DNA gets the limelight, of 142 prisoners sentenced to death and then exonerated in the last 40 years, just 18 were freed over DNA evidence, according to the Death Penalty Information Center in Washington.

The Times also has this excellent graphic on death sentences and state repeal.

Earlier coverage from Mayland begins at the link.  Earlier coverage of Kirk Bloodsworth's advocacy is also available.

His story is told in Bloodsworth: The True Story of One Man's Triumph over Injustice by Tim Junkin; a must-read.

A Novel Take on Death Row

The Canadian Press posts, "Ronald Smith's Lawyer Don Vernay Writes Book About Fictional Death Row Inmate," by Bill Graveland.  It's via Huffington Post Canada.

It wasn't much of a stretch for death row lawyer Don Vernay to put himself into the mind of a killer.

Vernay, 69, has spent more than two decades of his life defending those headed to the gallows — one of the most notable being Canadian Ronald Smith, who has spent the last 30 years fighting a death sentence in Montana for the murder of Thomas Running Rabbit and Harvey Madman Jr. in 1982.

In his novel "Today and Tomorrow," Vernay gives a glimpse into the mind of a young man about to be executed for the Christmas Eve murder of his parents and chronicles the chain of events that brings him to the last day of his life.

The story takes place totally inside the head of the unidentified and remorseless protagonist and takes the reader on a journey that is both dark and humorous from his birth to his death.

"Because I've been doing this work so long I wanted to convey what trauma can do to somebody — how someone can just shut down, which is what happens with this kid. He causes an accident that kills his brother, his parents just heap the blame on him and he just shuts down," said Vernay, who now practises law out of Albuquerque, N.M., but deals primarily with death penalty cases in nearby Texas.

Related posts are in the books category index.  Coverage of Ronald Smith's case begins at the link.

 

Assisting Exonerees - A Largely Unmet Need

"Cleared death-row inmates need help adjusting to the world outside prison," is the Wilmington Star News editorial on North Carolina exonerations.  Here's the beginning of this must-read:

The journey from death row to a normal life is a lonely one for former inmates who have been cleared of murders they did not commit. Walking out the prison door is but the first difficult step. People like Alan Gell, sentenced to death for a murder he did not commit, are given a pat on the back, possibly some financial compensation and not much else.

What they really need is help adjusting to the outside world.

Two University of North Carolina system professors have done a public service with their book, "Life After Death Row," which examines the difficult transition from the grimmest of cell blocks to complete freedom – and absolutely no guidance as to what comes next.

Kimberly Cook, who heads the UNC Wilmington sociology and criminology department, and Sandra Westervelt, associate professor of sociology at UNC Greensboro, relate the struggles of Gell and others who have found themselves going from an institutionalized life where every decision is made for you into an unfamiliar world that expects you to get on with your life without missing a beat.

It doesn't work that way, and it is a disgrace that, after wrongly imprisoning someone, our justice system does not have procedures to help exonerated inmates make that transition. In North Carolina, it is not as though it would break the bank to provide some help.

Earlier coverage of the new book referenced in this editorial begins at the link.

Reentry for Exonerees

Today's Wilmington Star News in North Carolina reports, "Exonerated death row inmates readjust to society after release."  It's by Brian Freskos.

In 2004, Alan Gell walked out of a Bertie County courtroom a free man.

After languishing nearly five years on death row for a murder he did not commit, a new jury overturned his original conviction. But despite the sense of vindication that accompanied his freedom, Gell felt uneasy and scared.

He was released into a foreign world where toilets flushed automatically "and scared the crap out of you," he said. On the outside, he had no access to health care or social services. And with an erroneous murder conviction on his record, it felt impossible to find a job.

"They threw me to the wolves," he said in a telephone interview earlier this week. "If it was not for my family, I don't know what I would have done."

Gell is among 18 exonerated death row inmates whose post-release odysseys form the subject of a recently released book entitled, "Life After Death Row: Exonerees' Search for Community and Identity," co-authored by professors at University of North Carolina campuses in Wilmington and Greensboro.

And:

Cook and Westervelt say only a small proportion of exonerees receive compensation. Only 23 states have compensation laws. North Carolina boasts one of the most generous, awarding $50,000 for each year of wrongful incarceration. But the process often takes years. And to qualify, exonerees must obtain a governor's pardon – a task that often proves elusive. As a result, only about 23 percent of them win compensation through the law, Westervelt said.

Gell believes he should not have to ask the state to correct a wrong that it perpetrated. He instead filed a lawsuit against prosecutors and investigators and in 2009, settled for $3.9 million, according to the book.

Today, Gell's life has assumed a degree of normalcy. He is in a healthy relationship and has kids. But the stigma of being "that guy" who once served time on death row still sticks to him.

"You never really get over the whole deal," he said.

The article notes that proceeds from the book are being dontated to two nonprofit organizations that assisted the exonerated, Witness to Innocence and Centurion Ministries.

More on Life after Death Row: Exonerees' Search for Community and Identity is at Amazon.com.

Related posts are in the wrongful incarceration index.  Texas has one of the most generous compensation laws in the nation for those wrongfully convicted and incarcerated.

A Q&A with Sr. Helen Prejean

"Activist discusses work against death penalty," is the conversation with Houston Chronicle reporter Harvey Rice.  Here's the beginning of this must-read:

Sister Helen Prejean, 73, anti-death penalty advocate and author of "Dead Man Walking," which was made into a movie in 1995 of the same name, was in Houston for the 10th anniversary of GRACE, the Gulf Region Advocacy Center, which represents low-income death-penalty defendants at no cost. She spoke with Houston Chronicle reporter Harvey Rice about her passion for her cause.

Q. Was it your experience with Patrick Sonnier, whose 1984 execution inspired your book "Dead Man Walking," that led you to be outspoken against the death penalty, or was it something else?

A. When he was killed in the electric chair he looked at my face. I had never seen an execution before with my own eyes. I went outside and vomited. Support for death penalty was 87 percent at the time. I realized the people are never going to see this, but I've witnessed it. I've witnessed the guards who had to do the killing. One who said I have to quit. I met the victims' families. They are given this illusory promise (that the death penalty will bring them closure.) I began speaking out immediately after that execution. I wrote a book, "Dead Man Walking." It was to get the word out to the people, to get them to face the reality of the death sentence, to gradually take them into the horror. That's what I tried to do.

More about Sr. Helen Prejean is at the link; you can also visit her website, Prejean.org.

Damien Echols' Book, Life After Death

"After Jail and Release, New Fame as an Author," is a New York Times report by Dave Itzkoff.

On a Thursday afternoon walk along Canal Street, Damien Echols was reflecting on how this busy thoroughfare once nourished him in the first few months after his August 2011 release from a super-maximum-security prison in Arkansas.

Arriving from a life spent largely in solitary confinement and awaiting a death sentence, Mr. Echols was starved for human interaction and feasted on this downtown Manhattan smorgasbord teeming with awed tourists, stubborn natives and street peddlers hawking unfamiliar wares as if it were a five-course dinner.

Now, however, Mr. Echols compared this same block to a far less appetizing meal: “A sack full of McDonald’s hamburgers,” he called it.

It’s not that Mr. Echols, 37, one of the defendants in the notorious West Memphis Three murder case and the author of a new memoir, “Life After Death,” has become tired of a frantic, indifferent city or jaded by his own long-sought, hard-won freedom.

But after a year on the outside he finds himself an unlikely and uncomfortable celebrity. He is famous mostly because of things for which he does not want to be recognized, yet he is unable completely to shun the spotlight he says he needs to win himself a full exoneration.

“You can have all the evidence in the world, and that’s still only 50 percent of the fight,” said Mr. Echols, who speaks in a soft but resolute voice. “The other 50 percent is media. You have to get the media to pay attention. If not, they’ll sweep it under the rug and keep going.”

Tall and lean with long black hair, Mr. Echols is most widely known for having been convicted in 1994, along with Jason Baldwin and Jessie Misskelley Jr., for the 1993 murders of three boys in West Memphis, Ark., a crime the three men say they did not commit. Last year Mr. Echols, Mr. Baldwin and Mr. Misskelley were released, after almost 20 years, in a deal that required them to plead guilty even though they continue to maintain their innocence.

Since then Mr. Echols has lived a bifurcated existence. He has become well known from the three “Paradise Lost” documentaries, directed by Joe Berlinger and Bruce Sinofsky, that chronicled the West Memphis Three case, and he has spent time with several of the entertainment-world luminaries who fought for his release and have helped finance his exoneration efforts, including Johnny Depp, Eddie Vedder and the “Lord of the Rings” director Peter Jackson. (Mr. Jackson and Mr. Echols are also among the producers of a coming documentary, “West of Memphis.”)

But Mr. Echols says his private life is happily mundane. He and his wife, Lorri Davis, live in Salem, Mass., a city with long connections to magic and the dark arts that has become a modest mecca of New Age shops and meditation centers; he calls it “the only place on earth where I’m in the majority.”

"Freedom After Fire Ants and Tumult," is the Times' book review by Janet Maslin.

Eighteen and a half years after he was sentenced to death for participating in the murders of three 8-year-old boys in Arkansas, Damien Echols finds himself in Faireyland. Mr. Echols’s new book, “Life After Death,” has a Shepard Fairey-inspired cover design that’s as coolly lionizing as Mr. Fairey’s “Hope” poster for President Obama. The book has a champion in Johnny Depp, who has compared Mr. Echols’s writing to Dostoyevsky’s. And his story is the subject of a forthcoming documentary, “West of Memphis,” even though that story has been exhaustively told in the three “Paradise Lost” films that paved the path to Mr. Echols’s release from death row.

These are mind-bending new circumstances for a guy who grew up as an impoverished loner, sardonically described himself as white trash, and spent his years of incarceration noticing the most grotesque, dehumanizing aspects of prison life. Yet “Life After Death” tries to reconcile all these extremes into a single narrative, and to a great extent it accomplishes this magic trick. By the way, Mr. Echols spells that word “magick,” just as one of his favorite writers, the very spooky Aleister Crowley, did. It was Mr. Echols’s teenage taste for the occult, heavy metal and black clothing — a look inspired by Mr. Depp in “Edward Scissorhands,” he says — that initially made him a target for the vindictive and provincial police in West Memphis, Ark.

“Life After Death” does not discuss the details of that triple murder case and the long, botched investigation and trial that followed. For one thing, that story is not over. Last summer Mr. Echols, now 37, and his two cohorts in what became known as the West Memphis Three, Jason Baldwin and Jessie Misskelley Jr., were freed on an Alford plea, an unusual technicality whereby the defendants were released but not vindicated. The accumulated fan support, financial backing and legal muscle that have rallied around Mr. Echols suggest that his champions will continue to fight on his behalf.

But he is sick of that story anyway. So “Life After Death” is a dual memoir, partly about Mr. Echols’s boyhood and partly about his prison life.

Tonight, Echols will be signing copies of his book in Tempe, Arizona.  "9/24: Damien Echols talks 'Life,' at Changing Hands in Tempe," is by Randy Cordova for the Arizona Republic, features a Q&A with the author.

As one of the West Memphis Three, Damien Echols spent nearly two decades on death row for the murders of three Arkansas Cub Scouts in 1993, a crime he says he didn't commit. Last year, due to a lack of evidence, the men were released amid a flood of publicity.

And:

Q: It must also be a shock because people see you in magazines with people like Johnny Depp and think, "Oh, he's living the life."

A: People see the glamour angle or some red-carpet thing with Johnny, but they don't know for the past month I've been homeless, and we've (he and wife, Lorri Davis) been struggling to get a place to stay. Tomorrow, we move to Massachusetts, but we've been moving from hotel to hotel or staying with friends. When we left Arkansas, we literally felt like refugees. I did not have one single penny in my pocket or a change of clothes. If it wasn't for people helping us and trying to get us on our feet, we would have been screwed.

Blue Rider Press, the book's publisher, has distributed a list of author events.

September 21 – New York, NY | Barnes & Noble, Union Square – 7:00 PM

September 24 – Tempe, AZ | Changing Hands Bookstore – 7:00 PM

September 26 – Los Angeles, CA | UCLA Freud Playhouse (Book Soup presents) – 7:00 PM

September 28 – Seattle, WA | Seattle Town Hall – 7:30 PM

October 11 – Minneapolis, MN | Innocence Project Minnesota – 7:00 PM

October 12 – Kansas City, MO | Rainy Day Books at Unity Temple – 7:00 PM

October 14 – Nashville, TN  | Southern Festival of Books

October 26 – Denver, CO | Tattered Cover LoDo – 7:30 PM

October 27-8 – Austin, TX | Texas Book Festival

October 29 – Tulsa, OK | All Souls Unitarian Church (Booksmart presents) – 8:00 PM

Earlier coverage of Damien Echols and the West Memphis Three case begins at the link; more on Life After Death, also available.

Wanting to Kill

That's the title of Matthew Parker's OpEd in the New York Times Sunday Review, published August 5th.  He'ss the author of Larceny in My Blood, a graphic memoir.  It's a must-read.

My brother had been stabbed numerous times, his throat slashed. The crime occurred in a park in South Phoenix. An ex-con from Oklahoma was later found guilty of first-degree murder.

Overnight, I became a believer in the death penalty. Before John’s murder, I thought that killing a person in any form was wrong. “I want closure,” I would rant to anyone who’d listen. “I want justice.” But what I really wanted was blood and vengeance.

A few years after John died I moved to Arizona and, several years after that, was sentenced to prison. I was a junkie and a petty thief, the latter a direct result of the former. Between 1987 and 2002 I was constantly being locked up. Aside from time in the county jail, I also served roughly 10 years in both federal and state institutions.

In the summer of 1991 I was being held in a Maricopa County jail on three felonies: third-degree burglary, possession of narcotics and possession of drug paraphernalia. The judge sentenced me to two years in an Arizona state prison, the same state prison system that housed my brother’s murderer. After being transferred to the Arizona Department of Corrections I was taken to an office for classification.

“You have a D.N.H. in your jacket,” the administrator told me.

D.N.H. is an abbreviation for “do not house,” as in: “Do not house prisoner Parker with his brother’s murderer.” Jacket is slang for a prisoner’s criminal record. The administrator had my jacket in his hand, and he was leafing through it as he sat behind his desk in the cramped office. My jacket contained such things as the specifics of my convictions, my criminal history and security threat, as well as any propensity for violence or, as was the case with me, the lack thereof.

I knew that my brother’s killer was serving a life sentence in an Arizona state prison. I didn’t want to confront him; I was in truth scared to death at the possibility, however remote. Here I was being sent to the same prison system as the man I wanted killed. My thoughts were roiling. What if there wasn’t a D.N.H. in my jacket? What if there was a screw-up — not unheard of in prison bureaucracies — and I was sent to the same prison as him? What if I ran into him? What would I do? What would he do? That D.N.H. in my jacket made me instantly realize just how close I was to an actual death penalty — so close that I could personally administer it. One little mistake on the part of the Arizona Department of Corrections and all my wishes for bloody vengeance would have become a reality. “Here’s your death penalty, son. We’re gonna accidentally (wink, wink) put you in the same prison with this dirt bag, where you can stab him in his sleep with a homemade shank. Slash him to ribbons with a razor blade in the shower. Bash his brains out on the ball field with a baseball bat.”

It’s easy enough to think about vengeance, even to declare a desire for it, but being confronted with the mechanics of murder is a different matter entirely. It forced me to examine my motives more closely, and to think about the sheer intimacy inherent in acts of violence. I’d been in fistfights in jail and prison — fighting is just a fact of life on the inside — but they were relatively harmless and over quickly. Now I was forced to contemplate actual murder, and decided that it just wasn’t in me to attack another human being with intent to kill or, a distinct possibility, be killed. It took that D.N.H., that rote product of penal bureaucracy, to teach me that I didn’t want to kill anybody, and from there it wasn’t much of a mental leap to conclude that I didn’t want the state do it for me, either.

Related posts are in the incarceration, OpEd, and victims' issues category indexes.

More From the Steinbeck Family

"Steinbeck Family Outraged That Texas Judge Cited ‘Of Mice and Men’ in Execution Ruling," is Robert Mackey's post at the New York Times Lede blog.

After Thomas Steinbeck, the writer’s son, read a Guardian article on how his father’s novel had been used in a Texas court to argue for the execution of the mentally retarded, he joined the effort to halt the killing of Mr. Wilson, The Beaumont Enterprise reported. In a statement released on Tuesday, just before Mr. Wilson was put to death for a fatal shooting in 1992, Mr. Steinbeck wrote:

On behalf of the family of John Steinbeck, I am deeply troubled by today’s scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson’s case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e., Lennie Small from “Of Mice and Men,” as a benchmark to identify whether defendants with intellectual disability should live or die.

My father was a highly gifted writer who won the Nobel Prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way. And the last thing you ever wanted to do, was to make John Steinbeck angry.

In 1937, the novelist himself told The New York Times that the model for his character, a killer who did not comprehend his own actions, was shown leniency by the American legal system of the time. “Lennie was a real person,” Mr. Steinbeck said. “He’s in an insane asylum in California right now. I worked alongside him for many weeks. He didn’t kill a girl. He killed a ranch foreman. Got sore because the boss had fired his pal and stuck a pitchfork right through his stomach. I hate to tell you how many times I saw him do it. We couldn’t stop him until it was too late.”

"Steinbecks: Leave Lennie alone," by Rania Khalek at Salon.

Despite having been diagnosed with mental retardation by a court-appointed neuropsychologist, Texas courts determined, based on unfounded and highly subjective standards, that Wilson was not mentally retarded and therefore was eligible for execution. Texas, unlike any other death penalty state, measures mental retardation using nonclinical standards invented by the Texas Court of Criminal Appeals. Known as the “Briseño factors,” these standards have absolutely no basis in science or clinical application. Instead they were inspired by Lennie Small, the fictional migrant farmworker from the famous novel “Of Mice and Men,” written by the late Nobel Prize-winning American author John Steinbeck.

Wilson’s attorney, Lee Kovarsky, told Salon that eight years later, not a single clinician or scientific body uses or even recognizes the “Briseño factors” as valid. “There is no citation to any science or opinion as to where those factors come from,” he adds. In fact, the only reference the TCCA made was to Steinbeck’s Lennie Small.

"John Steinbeck's writing shouldn't be used in death row cases, says son," by Nadia Khomami at the Telegraph.

John Steinbeck’s son has criticised the State of Texas over its use of his father’s fiction in death row cases.

Texas has been using the mental disability of Lennie Small, the Nobel prize-winning author's fictional character in Of Mice and Men, to define learning difficulties and thus to justify its execution of Marvin Wilson, who was put on death row for the 1992 murder of a police informant.

Earlier coverage of the execution of Marvin Wilson begins with the preceding post.

A Book From Clive Stafford Smith

The Injustice System is due to be published in November by Viking.  It's available for pre-order from Amazon.

It's the subject of the Digital Journal OpEd, "Clive Stafford Smith — The Baron Münchhausen of Death Row," by Alexander Baron.

When we hear the word fanatic, most of us think of some wide-eyed individual, perhaps holding a bomb or wearing a suicide vest. At best, we think of someone who not only won't change his mind but can't change the subject. There are though, fanatics who speak, apparently, with the voice of quiet reason. An impeccably English accent helps the deception, especially when addressing an American audience.

Clive Stafford Smith is one of these latter types of fanatics. He is given three pages in the latest issue of the New Humanist magazine to talk about his new book and sound off at the wicked American criminal justice system, with especial reference to the death penalty. Here, as in this short presentation, he sounds very persuasive.

Related posts are in the books index.

Timothy McVeigh and the Myth of Closure

That's the title of an Atlantic post last month by Andrew Cohen. concerning a new book, Killing McVeigh: The Death Penalty and the Myth of Closure, by Indiana University Law prof Jody Madeira.  It's published by NYU Press.  The book is also available from Amazon.com.

The families of his victims were allowed to watch him die, but in the years that passed, many were left without a sense of finality. A new book follows these people, searching for an answer to a powerful question: When does a tragedy end?

Eleven years ago today-- on June 11, 2001-- Oklahoma City bomber Timothy McVeigh was executed by lethal injection at the federal death chamber in Terre Haute, Indiana. He died with his eyes open, it was reported, staring up at the closed-circuit camera that was beaming his execution back to Oklahoma. Four years earlier, almost to the day, a federal jury in Denver, Colorado, had sentenced him to death for the murder of 168 people, killed in a truck bomb blast at the Alfred P. Murrah federal building on April 19, 1995.
When the death sentence was revealed on June 13, 1997, The Denver Post reported at the time, there was little of the public cheering that had accompanied the jury's first verdict. Then, there had been a measure of jubilation on the streets outside the courthouse in downtown Denver. This time, on Friday the 13th, there was mostly just a sense of relief. "I'm glad it's complete," juror David Gilger said. "I hope it brings a sense of closure to everyone."

Closure. To many it is just another "made-up word. A politician's word," a word that has proven, unsurprisingly, to be wholly inadequate to describe the range of emotions, often raw and conflicting, of any particular person's grieving process. Then again, many others evidently still swear by it. Search "'victims' rights' and closure" on Google and it comes back with 1,770,000 results.

No surprise. Fifteen years ago, especially, the word had great political relevance. The concept of "victims' rights" was just then broadening its impact upon the criminal justice system, fueled by a United States Supreme Court decision styled Payne v. Tennessee. The 1991 ruling, written by Chief Justice William Rehnquist, held that a capital defendant had no Eighth Amendment right to be free from a sentencing trial which included "victim impact" statements.

After Payne came O.J. And then after that came McVeigh. It was in the name of justice, and closure, that the thousands of victims of the Oklahoma City bombing exerted remarkable political power to achieve their goals. The biggest example of their success was the swift, bipartisan passage of the 1996 Antiterrorism and Effective Death Penalty Act, an extraordinary statute that has influenced hundreds of murder cases -- and much of our legal war on terrorism -- ever since.

NYU Press has more on the book.

In Killing McVeigh, Jody Lyneé Madeira uses the Oklahoma City Bombing as a case study to explore how family members and other survivors come to terms with mass murder. As the fullest case study to date of the Oklahoma City Bombing survivors’ struggle for justice and the first-ever case study of closure, this book describes the profound human and institutional impacts of these labors to demonstrate the importance of understanding what closure really is before naively asserting it can or has been reached.

Related posts are in the books and victims' issues category indexes.

Furman at Forty

Yesterday, the 2011-2012 Supreme Court term ended with the ruling upholding the Affordable Care Act.  On June 29, 1972, 40 years ago today, the Court ruled existing death penalty laws unconsittutional in Furman v. Georgia.  There's more on the case at the link, including the ruling, via Oyez.

A central issue addressed by the Court was the arbitrariness of the imposition of the death penalty at that time.  The Death Penalty Information Center issued a report five years ago, Struck by Lightning: The Continuing Arbitrariness of the Death Penalty (available in Adobe .pdf format) that is still current; perhaps even more relevant today than five years ago.

Four years after Furman, a number of states had written and passed new capital punishment laws, and the Court revisited the issue in a series of cases, collectively referred to as Gregg v. Georgia.  That ruling cleared the way for the return of capital punishment.  Yet, in virtually every Supreme Court term since, death penalty cases have become a fixture at the Court, creating a highly complex, constantly shifting body of jurisprudence.  Today, it's apparent to most observers that arbitrariness remains a hallmark of the death penalty.

Reuters Legal notes this landmark in today's Summary Judgments.

The Supreme Court saves the best for last, as we were reminded this week, when Monday's decision on Arizona's immigration law gave just a taste of the hoopla to come over yesterday's ruling on the federal healthcare law.

The justices' end-of-term rush inevitably leads to end-of-June anniversaries, and one that is particularly topical in these times is Furman v. Georgia. That decision, which is 40 years old today, found that arbitrary and inconsistent imposition of the death penalty constitutes cruel and unusual punishment.

The issue of what constitutes cruel and unusual punishment under the Eighth Amendment is still very much up for debate. A lawsuit filed on Tuesday claims that lack of air-conditioning in Texas prisons, which led to the death of several inmates last summer, is just that, The New York Times reports.

And:

While Furman v. Georgia ushered in a moratorium on executions in 1972, it only lasted a few years. Indeed, the biggest shift in the death penalty in recent years has been led not by the Supreme Court but by the states. In April this year, Connecticut became the fifth state in five years to repeal capital punishment, bringing to 17 the number of U.S. states that have done so.

Not all big Supreme Court decisions come in June. Next Monday, July 2, is the 36th anniversary of the decision that reintroduced the death penalty, Gregg v. Georgia.

I hope that readers will take some time this weekend and over the July 4th celebration to read the opinons and examine some other sources.

Here are some earlier posts relevant at this marker of time and law.

• More on David Oshinsky's Examination of Captial Punishment
• A Q&A With Michael Meltsner on the Reissue of Cruel & Unusual
• John Paul Stevens: The Vote He Would Take Back
• Editorial & Commentary on ALI Action

And for anyone who wants to dig deeper, I highly recommend Charles L. Black Jr's classic, Capital Punishment: The Inevitability of Caprice and Mistake.

The Inferno

Kay Campbell posts, "Prison chaplain questions death penalty value," at the Huntsville Times.

In 1981, Philip Workman walked into a Wendy’s restaurant in Memphis, brandished a gun, and had the employees hand him the money out of the cash drawer.

Cornered moments later by police officers in a corner of the parking lot, Workman fired the gun. A police officer fell.

In 2007, Workman was executed for that homicide.

Trouble is, says the Rev. Joseph Ingle, who will speak in Huntsville Tuesday, Workman’s gun is not the one that killed that police officer.

The officer, according to forensic evidence analyzed after Workman’s ‘82 trial, was killed by the kind of bullet that is in police pistols, not Workman’s. The officer, in short, appears to have been killed by another officer’s shot.

Ingle’s latest book, “The Inferno: A Southern Morality Tale,” chronicles what happened between that moment in the parking lot and Workman’s execution by lethal injection 26 years later.

“It was pretty much a nightmare,” Ingle said this week from his home office in Nashville. “If you ever think the issue of capital punishment and our criminal justice system aren’t politically fraught, you need to take another look. It is beyond appalling.”

And:

Rather than take a United Church of Christ congregation, Ingle chose to become a self-supporting prison chaplain. He volunteers in Riverbend Maximum Security Prison in Nashville. From 1974 until 1983, he was the executive director of the Southern Coalition on Jails and Prisons, a multi-state organization that sought to abolish the death penalty.

Abolishing the penalty makes sense not only to avoid executing people for crimes they didn’t commit, but also in simple dollars and cents.

“Nationally, there is a move away from capital punishment,” Ingle said, “but you don’t see that in the South. Since 1977, more than 93 percent of the executions in the U.S. have been in the South.”

And patterns for those executions follow disturbingly familiar paths of racial discrimination.

“If you kill a white person, you are 11 times more likely to die for that crime than if you kill a black person,” Ingle said. “And it’s even worse if you’re a black person and you kill a white person. Then you are 22 times more likely to die.”

The article notes that Ingle will be speaking the evening of Tuesday, June 19th at a meeting of the Interfaith Mission Service at the 88 Buffet Restaurant on University Drive in Huntsville.

The Inferno is available at the link from Amazon.com.  He's also the author of Last Rites.

Prejean Papers Featured in DePaul University Exhibit

"Exhibit on anti-death penalty activist opens at DePaul," is the AP post, via the Rockford Register Star.

An exhibit dedicated to the life of a nationally known Roman Catholic anti-death penalty activist is opening in Chicago.

Sister Helen Prejean wrote the book "Dead Man Walking," which later became a film starring Susan Sarandon and Sean Penn.

The exhibit at DePaul University looks at notable moments in her activism over the decades and includes correspondence with people on death row. Prejean donated her papers to DePaul in 2010.

The exhibit is called "In Deeds and Words: The Prejean Ministry Against the Death Penalty."

DePaul University has issued a news release, "Noted Anti-Death Penalty Activist Sister Helen Prejean to Visit DePaul for May Lectures, Opening of Exhibition on Her Life and Work."

Sister Helen Prejean, C.S.J., the activist and author whose book “Dead Man Walking” helped fuel the current anti-death penalty movement in the United States, will appear at DePaul University May 14 to dedicate an exhibition highlighting her work to end capital punishment.

 “In Deeds and Words: The Prejean Ministry Against the Death Penalty” examines notable moments in Prejean’s 30 years of advocacy on behalf of death row inmates and her activism to abolish the death penalty. The exhibit highlights her relationships and correspondence with individuals on death row. It also highlights the process of writing her best-selling books, “Dead Man Walking” and “The Death of Innocents,” and adapting the former for the 1995 film starring Susan Sarandon and Sean Penn.

The exhibit will be open to the public Monday through Friday from 9 a.m. to 5 p.m. through Nov. 30 in DePaul’s Special Collections and Archives, Room 314 of the Richardson Library, 2350 N. Kenmore Ave., Chicago.

And:

On May 15 at 7 p.m., Prejean will present a lecture titled “Dead Man Walking—the Journey Continues,” in which she will reflect on current efforts to roll back the death penalty around the country. A 6:30 p.m. reception will precede the talk.

Both programs are free and will be held at Cortelyou Commons, 2324 N.  Fremont St., Chicago, but reservations are required at eventRSVP@depaul.edu.

On May 16 at 6:30 p.m., Prejean will participate in a public conversation about the writing process behind her past best-sellers and her upcoming book “River of Fire.” The program will be held in Room 220 of the Lincoln Park Student Center, 2350 N. Sheffield Ave., Chicago.

“Sister Prejean has long been a leading light in the fight for social justice across a wide spectrum of issues, especially the movement to end capital punishment in the United States,” said the Rev. Dennis H. Holtschneider, C.M., DePaul’s president. “We are deeply honored that she has chosen DePaul to preserve the record of her life’s work.”

Prejean first announced the donation of her archives to DePaul in February 2011, coincidentally just after the Illinois Legislature’s surprising vote to abolish the death penalty. She was invited to consult on the issue with Illinois Gov. Pat Quinn, who signed the legislation several weeks later, making Illinois the 16th state in the nation to outlaw capital punishment. In recent months, Connecticut has repealed its death penalty and a referendum has been placed on the November ballot asking California voters if that state should abolish capital punishment.

The launch of the Prejean exhibit coincides with the opening of Prejean’s papers for researchers and academic use. The collection is multifaceted and contains rich resources not only on the issue of capital punishment, but also in charting the development of Prejean’s activism, the process of writing and publishing a book, and the social justice issues that underlie much of the death penalty debate.

More on Kerry Max Cook

The Southwest edition of the New York Times carries, "Released but Never Exonerated, a Man Fights for Freedom," by Michael Hall.  It's also posted at the Texas Tribune, which partners with the Times for expanded Texas coverage.  Here's an extended excerpt:

A couple of Fridays ago, Kerry Max Cook, who was released from Texas’ death row in 1997 after two decades, went to pick up his 11-year-old son, Kerry Justice, from his North Dallas school. Class was just letting out. As Mr. Cook approached a group of children and their parents, a little girl squirmed out of her mother’s arms and ran toward him. “Mr. Kerry!” she called. He laughed as she jumped into his arms. “Haleigh!” he shouted, and began tickling her. “She adores Mr. Kerry,” her mother said.

The same jolly scene followed Mr. Cook as he walked around the small campus — children calling out to him, laughing, jumping into his arms. Vicki Johnston, the school’s director, looked on, smiling. “Kerry’s such a big part of the school,” she said. “He’s like a pied piper to the kids.” Asked about his past, Ms. Johnston simply said: “We know him. We know what kind of man he is.”

Unfortunately for Mr. Cook, 15 years after his release, the State of Texas still does not share Ms. Johnston’s view. Though he is widely recognized as one of the country’s most famous exonerated prisoners, Mr. Cook is not legally exonerated. In fact, in the eyes of the state, he is still a killer — convicted of the 1977 rape and murder of Linda Jo Edwards.

Mr. Cook’s situation is complex. His death sentence was twice overturned by higher courts, and DNA taken from the victim’s underwear did not match his own, and the evidence used to convict him has been shown to be entirely fallacious — but because Mr. Cook pleaded no-contest to the murder on the eve of what would have been his fourth trial, he cannot be declared actually not guilty.

Nevertheless, Mr. Cook has become a high-profile spokesman for the wrongfully imprisoned. He has published a book about his experience and has been one of the subjects of a popular Off Broadway play, “The Exonerated,” which was later made into a film. He has given speeches all over the United States and Europe. His Facebook page contains pictures of Mr. Cook with actors like Robin Williams, Richard Dreyfuss and Ben Stiller, who have been drawn to his story.

Yet Mr. Cook lives in the shadows with his wife and their son, knowing that whenever he applies for a job or gets on an international flight, he will be identified as a convicted murderer. Now he hopes to change that, with two motions filed recently in Smith County, where the case was originally heard, that could finally clear his name.

And:

In 2009 Mr. Cook met Marc McPeak, a civil lawyer — with Greenberg Traurig in Dallas — who had read his book. Mr. McPeak’s firm began devising a legal strategy, pro bono, to navigate the difficult road of getting Mr. Cook an official exoneration. The first step was to get DNA testing on other items from the crime scene, including a hair found on Ms. Edwards’s body.

On Feb. 28, Mr. McPeak filed two motions in Smith County, one for the DNA testing and the other to recuse the judge who would decide whether to allow the testing — Mr. Skeen, the former district attorney. “We want it heard outside of Smith County,” Mr. McPeak said. “Not once in 35 years have officials there shown either the desire or the ability to treat Kerry fairly.”

They hope that further DNA evidence excluding Mr. Cook will help them to file a writ of habeas corpus to have him declared actually innocent.

Earlier coverage of Kerry Max Cook's effort to fully clear his name begins at the link.  As I always point out, Texas Montly journalist Michael Hall and I are not related.

Kerry Max Cook's 2007 book is Chasing Justice.

Justice Stevens Returns to New York Review of Books

"A Struggle with the Police & the Law," is Justice John Paul Stevens' third essay in the New York Review of Books since his retirement from the Supreme Court.  It's a review of The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s, by Irving Morris, published by the University of Delaware Press.

The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s, by Irving Morris, tells us at least as much about its author as it does about the facts of the underlying case, which concerned an encounter between an unnamed young woman and three young men in Wilmington, Delaware’s Woodlawn Park in the early hours of October 30, 1947. The book, Morris writes, “is essentially the story of a fledgling lawyer’s struggle to overturn the result of a flawed trial by proving…police perjury.”

Irving Morris’s vivid recollection of events that occurred many decades ago demonstrates how the intangible benefits that lawyers receive from unpaid devotion to their profession generally far exceed the value of fees received from paying clients. I have often quoted the advice that John Adams gave to a younger lawyer: “Now, to what higher object, to what greater character, can any mortal aspire than to be possessed of all this knowledge well digested, and ready at command to assist the feeble and friendless…?” Morris’s story exemplifies this lesson. As he writes toward the end of the book, “Even though my clients paid little, I know I have earned far beyond what I ever imagined I might receive from successfully representing them.”

As the story unfolds, we learn how a competent lawyer responds to a series of defeats in protracted litigation. We are not told about the later events that made Irving Morris a leader of the corporate bar and the president of the Delaware State Bar Association.

And:

Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits, as Justice Lewis Powell, Justice Potter Stewart, and I explained in our joint opinion in Gregg v. Georgia (1976). We wrote that capital sentencing procedures must be constructed to avoid the random or capricious imposition of the penalty, akin to the risk of being struck by lightning. Today one of the sources of such arbitrariness is the decision of state prosecutors—which is not subject to review—to seek a sentence of death. It is a discretionary call that may be influenced by the prosecutor’s estimate of the impact of his decision on his chances for reelection or for election to higher office.

Justice Stevens' November 2010 essay in the New York Review of Books reviewed David Garland's Peculiar Institution; his November 2011 NYRB essay reviewed William Stuntz' The Collapse of American Criminal Justice.  Related posts are in the books index.

NYT Review of Anatomy of Injustice

The Sunday Book Review of the New York Times looks at Raymond Bonner's Anatomy of Injustice: A Murder Case Gone Wrong.  The review is "A Life in the Balance," by Kevin Boyle.

This much we know to be true: On a cold winter weekend in early 1982, somebody murdered 76-year-old Dorothy Edwards. Apparently she knew the perpetrator, since she let him into her handsome home on a quiet side street in Greenwood, S.C. The crime itself was horrific. She was beaten with a blunt object, stabbed repeatedly — one ear was almost severed — probably sexually assaulted; her body was stuffed into a bedroom closet, where it was discovered on Monday afternoon, Jan. 18. The next day the police arrested Edward Lee Elmore, a 23-year-old handyman whom Edwards had recently hired to do a few odd jobs around the house. He was formally charged with first-degree murder on Jan. 21, tried in the second week of April, found guilty by a jury that deliberated for two and a half hours, and sentenced to death.

We know this as well: As of this writing, there have been 1,283 executions in the United States since 1976, when the Supreme Court ended its four-year moratorium on capital punishment. There have also been 134 death row exonerations, almost half of them since 1999. In his mesmerizing new book, “Anatomy of Injustice,” Raymond Bonner, a onetime prosecutor and a former investigative reporter and foreign correspondent at The New York Times, makes a persuasive case that Elmore ought to be added to the list of the innocent. Instead, he spent nearly 30 years in the South Carolina state penitentiary, most of that time on death row, trapped by a complex of forces that too often warp the legal process, even when a man’s life hangs in the balance.

Like many capital cases, Elmore’s was shaped by the fearsome combination of race and class. Edwards was a well-to-do white woman whose murder made front-page headlines; little wonder that the Police Department wanted a quick arrest, the prosecutor the death penalty. And Elmore, a poor black man with a tangential connection to the victim, seemed so obvious a suspect, neither the police nor the prosecutor considered any alternatives, though there was one close at hand. Their case was incredibly weak, Bonner shows, resting on inference, some very dubious physical evidence and the testimony of a jailhouse snitch who claimed the defendant had confessed to him. But Elmore, who had an I.Q. of 61, was in no position to fight back; he couldn’t tell time, much less follow the intricacies of the law. His court-appointed attorneys didn’t help. At trial they barely interrogated the prosecution’s witnesses and called only one of their own: Elmore, whom the prosecutor, with 30 years of experience behind him, savaged.

Earlier coverage of Raymond Bonner's important book begins at the link.  Related posts are in the books index.

Robert Towery's Death Row Writings

Towrey was executed in Arizona last week.  His Death Watch Diary is now available in a free Kindle edition from Amazon.  This description is from Amazon:

For the last 35 days of his life, Robert was placed on “Death Watch” where his every move was recorded and chronicled by prison officials.

Robert also kept a diary which he gave or mailed to his attorneys as installments.  He detailed the ironies and absurdities of life in prison. He reveled in simple pleasures, such as a good meal or a sports event on television. He longed for human contact from his last visitors, and he touchingly tried to comfort his pod-mate, who doesn’t really understand that he was going to his death.

"Arizona executed inmate's diary details final weeks," is by Michael Kiefer for the Arizona Republic.

Beginning Feb. 2, the day he was taken from his regular cell at the Arizona State Prison Complex-Eyman in Florence and put on "Death Watch," Towery chronicled his life for his attorneys. There, he was housed with fellow Death Row inmate Robert Moormann, who was executed Feb. 29.

On March 7, his last night on Earth, Towery was taken a few miles down the road to "Housing Unit 9," in the main prison, where Arizona carries out executions by lethal injection. He made his last diary entry the next morning.

These are excerpts from that diary - Towery's words, his descriptions of the tedium, the rituals, the security, the indignities and the humanity, precisely as he wrote it - right up to the morning of his execution.

"Dear Diary: Arizona inmate wrote of the days before his execution," is by Ashley Powers for the Chicago Tribune.

In the weeks before he was executed for strangling a man to death, Arizona inmate Robert Towery kept a diary.

His writings began Feb. 2, when he was transferred to a “death watch” cell in state prison, and ended Thursday, shortly before he was put to death by lethal injection at 11:26 a.m. The Associated Press described the execution -- and the events leading up to it.

Towery, 47, had been convicted of killing Mark Jones during a robbery in 1991; he was the second inmate put to death in Arizona in a two-week period.

Towery’s entries, some of which the Arizona Republic published, are striking in their banality.  He asked prison officials for conditioner, and there was none. A brush or comb? Nope. He couldn’t find the motivation to work out, either.

Towery looked for bits of humor, such as when he saw two correctional officers doze off. “Exactly who is watching whom?” he wrote. He joked about his new living quarters being cleaner than his old ones. “I have not seen a single roach, water bug, scorpion, stink beetle or spider. Woo-hoo!!”

Towrey's execution is noted at the link.  Related posts are in the books index.

The Latest From Mark Osler

University of St. Thomas Law prof Mark Osler posts, "Lent and the Hidden Cost of Capital Punishment," at Huffington Post.  He's a former federal prosecutor.  It's a must-read.

Christianity is an odd religion in that the central human figure, Christ, is executed by the state. We don't see that in other faiths: Siddhartha Gautama Buddha died of food poisoning at age 80, and the Prophet Muhammad died of natural causes at 63.

It should mean something to Christians, then, that an execution is at the center of the faith and this season of Lent. One part of that meaning could have something to do with those who were a part of the process -- the prosecutor, the judges, the witnesses and executioners. The process of execution led them all to some form of ruin: Judas, the government cooperator, was torn asunder; Peter, called to be a witness, denied Christ; Caiaphus, the prosecutor, was so tortured he tore at his clothes; Pilate, the person who decided clemency, was tortured by the decision; and even the Centurion guard at the execution itself cried out at the injustice he saw.

These broken people of the gospels foreshadow a terrible cost hidden within our current use of the death penalty.

And:

The characters in the story of Lent are people who are very real in their strengths and weaknesses. It must mean something that they are shown in the gospels as so tortured by being a part of the machinery of death. The question left to us by this aspect of the gospel story is nothing less than this: Setting all else aside, is the death penalty worth the cost to these innocents, the citizen-jurors and dutiful workers?

Earlier coverage of Osler's book, Jesus on Death Row: The Trial of Jesus and American Capital Punishment, begins at the link.  Earlier commentary by Osler is also available.

Raymond Bonner in the New York Times

The Sunday New York Times carries Raymond Bonner's OpEd, "When Innocence Isn’t Enough."  Here's the beginning of this must-read:

EDWARD LEE ELMORE turned 53 in January. For more than half his life, the soft-spoken African-American who doesn’t understand the concept of north, south, east and west, or of summer, fall, winter and spring, was in a South Carolina prison, most of it on death row.

On Friday, Mr. Elmore walked out of the courthouse in Greenwood, S.C., a free man, as part of an agreement with the state whereby he denied any involvement in the crime but pleaded guilty in exchange for his freedom. This was his 11,000th day in jail.

Mr. Elmore was convicted in 1982 for the sexual assault and murder of an elderly white widow in Greenwood. His trial lasted only eight days, including two spent picking the jury. The state concealed evidence that strongly pointed to Mr. Elmore’s innocence and introduced damning evidence that appears to have been planted by the police. For three decades lawyers for Mr. Elmore, who were convinced of his innocence, sought to get him a fair trial.

Headlines and news stories about men being released from death row based on DNA testing suggest that this happens often. But it doesn’t. Once a person has been convicted, even on unimaginably shaky grounds, an almost inexorable process — one that can end in execution — is set in motion. On appeal, gone is the presumption of innocence; the presumption is that the defendant had a fair trial. Not even overwhelming evidence that the defendant is innocent is necessarily enough to get a new trial. “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Justice Byron R. White wrote for the majority in a 1977 case, Patterson v. New York.

In other words, innocence is not enough.

Coverage of Bonner's latest book, Anatomy of Injustice: A Murder Case Gone Wrong, begins in this earlier post.  Bonner's next author event is in Austin, on Wednesday, March 7 at Book People.  More book events are noted at Bonner's website.

More Reviews of Raymond Bonner's Book; Upcoming Author Events

Raymond Bonner's Anatomy of Injustice: A Murder Case Gone Wrong, is getting national attention in book reviews, and his author events continue with stops in Washington, DC and Austin.

Tomorrow, Bonner will appear at Washington, DC's celebrated Politics & Prose, where many Book TV author events are taped for later airing.  On March 7, Bonner is at Austin's Book People.  Both bookstores are happy to send signed books to those who cannot make it to the store.  Bonner also has a list of additional author events at his website.

On to the reviews.  Jonathan Yardley posts a Washington Post book review.

Bonner, who reported on the Elmore case while working as a staff reporter for the New York Times, is a lawyer as well as a journalist and brings professional expertise to the book. He also brings passionate feelings about the proper roles of prosectors and defense attorneys. He came to admire a New Yorker named J. Christopher Jensen, a corporate lawyer “who felt a need to do something more meaningful than help rich people get richer” and helped defend many accused persons in South Carolina. “Jensen never asked himself whether Elmore was guilty or innocent,” Bonner writes. “It was not a question he had to address. For Jensen, like many criminal defense lawyers, in defending a criminal suspect he is defending the integrity of the judicial system and the Constitution, as well as the individual. By demanding that a guilty person have a fair trial, defense lawyers are ensuring that an innocent person will as well.”

As for prosecutors, “a bedrock principle of the American judicial system” is “the duty of the prosecution . . . not to obtain a conviction but to do justice.” Later Bonner writes: “If there is a flaw in the adversarial system of justice that has developed in America, it is that the adversarial nature of it outweighs justice. Prosecutors want to win in trial court. Appellate lawyers want to win on appeal. Justice often gets lost.” From the first prosecutor who went after Elmore to the last, every single one violated that basic rule. The next time you read about justice in America, think twice.

A Boston Globe book review is by Ethan Gilsdorf.

For those seeking more ammunition for their battery of anti-death-penalty arguments, look no further. “Anatomy of Injustice: A Murder Case Gone Wrong’’ is Raymond Bonner’s accomplished and meticulously researched investigation into a murder case that, as the clumsy title suggests, was egregiously bungled.

In 1982, in Greenwood, S.C., Edward Lee Elmore, 23, is accused of killing an elderly widow.

Elmore had occasionally done odd jobs for the victim. When her body is found in her closet, stabbed dozens of times and possibly raped, Elmore is fingered as the prime suspect, despite a notable lack of physical evidence linking him to the crime.

Wilbert Rideau writes the review, "Presumed guilty," for the Financial Times.

America claims to have the best criminal justice system in the world, but in Anatomy of Injustice: A Murder Case Gone Wrong, Raymond Bonner reveals how flawed it is for the indigent defendant, especially if he is from a minority or is mentally retarded.

Edward Lee Elmore is both – an African American with an IQ of 61 who was 14 when he dropped out of school in the fifth grade, still reading at second-grade level. Unable to do simple mathematics or tell the time, he earned his living working as a handyman in the affluent white neighbourhoods of Greenwood, South Carolina.

Rideau is the author of the acclaimed memoir, In the Place of Justice: A Story of Punishment and Deliverance, published in 2010 and noted here.

"On death row, by mistake (or worse)," is the Richmond Times-Dispatch review witten by Doug Childers.

"In many ways, Elmore's is a garden-variety death penalty case: a young black male of limited intelligence convicted of murdering a white person after a trial in which his lawyers' performance was so poor that it could barely be called a defense," writes Bonner, a former investigative reporter and foreign correspondent for The New York Times and a staff writer at The New Yorker.

But it's also exceptional, he adds, because it "raises nearly all the issues that mark the debate about capital punishment: race, mental retardation, bad trial lawyers, prosecutorial misconduct, 'snitch' testimony, DNA testing, a claim of innocence."

As Bonner demonstrates, many of those issues would not have come to light if it hadn't been for the work of a lawyer named Diana Holt, who learned about Elmore's case while she was a law student working for the South Carolina Death Penalty Resource Center.

Holt researched and advocated for Elmore's cause for more than 16 years. The fact that Elmore eventually had his death sentence vacated is, in part, a testament to her doggedness.

Earlier coverage of Bonner's latest book begins at the link.

More Advance Praise for Raymond Bonner's Book

Andrew Cohen posts, "The Book of the Century About the Death Penalty," at the Atlantic.  Here's the beginning:

If you want to better understand why America is slowing turning away from the death penalty, do yourself a favor and read this excerpt from Anatomy of Injustice by Raymond Bonner in the new issue of The Atlantic. The journalist, author, and Atlantic correspondent, has written a masterful book (to be released on February 22) about the application and excesses of state capital punishment regimes. It is as eloquent, important, and accessible an addition to legal scholarship as was Anthony Lewis' first masterpiece, Gideon's Trumpet, two generations ago.
It doesn't matter on which side of the death penalty gulf you reside. If you believe in capital punishment, you ought to read the book to better understand why 100 million or so of your neighbors believe the system is arbitrary and capricious and beneath the dignity of a civilized nation. And if you are opposed to capital punishment, you ought to read the book to understand exactly how and why so many politicians and prosecutors are full of crap when they profess their confidence in the accuracy and reliability of convictions in capital cases.

Anatomy of Injustice focuses upon a single case in South Carolina, in which a black man named Edward Lee Elmore was thrice tried, convicted, and sentenced to death for the murder of an elderly white woman named Dorothy Ely Edwards. She was killed in 1982, and Elmore was first tried just a few months later. And yet, incredibly, just before Thanksgiving of this year, 30 years after the murder, the 4th U.S. Circuit Court of Appeals granted Elmore the right to his fourth new trial. He has been in prison all this time, often on death row.

"Having scrutinized volumes of records of Elmore's three trials and his state [post-conviction-relief] proceedings," the sharply-divided federal appeals court ruled on November 22 in a 194-page opinion, "we recognize that there are grave questions about whether it really was Elmore who murdered Mrs. Edwards." In this sentence, we see an essential truth about the failure of capital punishment in America. It's disconcerting enough that the law fails to require the level of certainty that morality demands. What's worse is that even the lower standard goes unmet in a shocking number of capital cases.

Anatomy of Injustice: A Murder Case Gone Wrong, will be published by Knopf on February 21.  Earlier coverage of the book is at the link.  Bonner has established a Facebook page for Anatomy of Injustice, and he lists several author events at his website.

It's currently available for pre-order from Amazon, Barnes & Noble, and your local, independent bookseller.

Raymond Bonner on the Death Penalty

The March 2012 issue of the Atlantic carries, "The Last Line of Defense: An unlikely crusader, Diana Holt wages a heroic, long-odds battle against the death penalty."  It's written by Raymond Bonner and drawn from his latest book, Anatomy of Injustice: A Murder Case Gone Wrong, to be published by Knopf on February 21.

It's currently available for pre-order from Amazon, Barnes & Noble, and your local, independent bookseller.

Author events are currently scheduled for;

Feb 28 - Cambridge/Boston, MA - Harvard JFK School
Mar 1 - Washington, DC - Politics & Prose
Mar 5 - Austin, TX - 5604 Manor
Mar 15 - Berkeley, CA - UC Berkeley

I'll add more as they become available.

Here's the beginning of the Atlantic excerpt:

In our criminal-justice system, once a person has been convicted, no matter how shaky the conviction, the presumption of innocence disappears. The defendant is assumed to have had a fair trial. New evidence, even enough to sow a field of doubt, does not necessarily entitle a defendant, not even one on death row, to a new trial. The remarkable defense attorney Diana Holt learned these lessons the hard way after she took on the case of Richard Charles Johnson, in October of 1999.

Holt, then 41, had worked as an attorney at the Center for Capital Litigation, in South Carolina, a nonprofit that represented prisoners on death row. Blond, blue-eyed, physically slight, and intense, Holt had begun working at the center a few years earlier, while still in law school. Having overcome great hardships in her own life, she had acquired a singular reputation as somebody who would work indefatigably to save the lives of the condemned—which is why her former mentor at the center, John Blume, asked her to help with the Johnson case. She would work on it for the next three years.

In the past year, Bonner wrote several articles on lethal injection issues.  Related posts are in the books index.

Cruel & Unusual

John D. Bessler, an Associate Professor at the University of Baltimore School of Law, has written a wonderful addition to death penalty scholarship with, Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment.  It's just been published by Northeastern University Press, and is available from University Press of New England, Amazon, Barnes & Noble, and your local independent book seller.

From the publisher:

The conventional wisdom is that the founders were avid death penalty supporters. In this fascinating and insightful examination of America's Eighth Amendment, law professor John D. Bessler explodes this myth and shows the founders' conflicting and ambivalent views on capital punishment. Cruel and Unusual takes the reader back in time to show how the indiscriminate use of executions gave way to a more enlightened approach--one that has been evolving ever since. While shedding important new light on the U.S. Constitution's "cruel and unusual punishments" clause, Bessler explores the influence of Cesare Beccaria's essay, On Crimes and Punishments, on the Founders' views, and the transformative properties of the Fourteenth Amendment, which made the Bill of Rights applicable to the states. After critiquing the U.S. Supreme Court's existing case law, this essential volume argues that America's death penalty--a vestige of a bygone era in which ear cropping and other gruesome corporal punishments were thought acceptable--should be declared unconstitutional.

It has a detailed accounting of the views of America's founding leaders on the death penalty and tracks societal changes to our understanding of the Eighth Amendment.  It also looks forward in the chapter, "The Road to Abolition."

Related posts are in the books index.

A Profile of Christina Swarns

Today's Washington Post carries, "Defense lawyer fights racism in death row cases."  It's written by Lonnae O’Neal Parker.  Swarns is the LDF as the Director of the Criminal Justice Practice at the NAACP Legal Defense Fund, an organization that has been at the forefront of fighting capital punishment.  Here's the beginning:

There’s a steadfast cheeriness to Christina Swarns as she talks rapid fire about the contours of her day. There are the rigors of her end-to-end Manhattan commute, how rarely she dresses like a grown-up and the usual challenges of the professional working mom.

But that changes when the conversation turns to the role of race in the criminal justice system. Then the Howard University grad becomes all authority and passion. She cites case law, death-penalty statistics and the history of Southern lynchings.She talks without pause, punctuating her words with hand gestures, even as her favorite portobello sandwich goes untouched in front of her.

As director of the criminal justice unit at the NAACP Legal Defense Fund, Swarns, 43, is one of the most prominent capital-defense lawyers in the country — the rare black woman in a community whose public face is most often white and male. Over the course of her career, she’s gotten seven convicted murderers off death row; one was exonerated, three had their convictions overturned and three had their death sentences vacated. But it is her most recent victory that is by far the most high-profile.

In December prosecutors in Philadelphia declined to seek another death sentence against Mumia Abu-Jamal, a decision that took him off death row for the first time in 30 years and rewarded years of effort Swarns — and many others — had put into the case. In 1982, Abu-Jamal was convicted of killing a Philadelphia police officer and his decades-long court battles gained him a national and international following. There have been hip-hop tributes, “Free Mumia” T-shirts and a street named for him in France. When it was announced that he would no longer face the death penalty, famed writer Alice Walker wrote him a poem, activist and Princeton University professor Cornel West led a rally at the Philadelphia Constitution Center and the former South African archbishop Desmond Tutu called for his immediate release.

Abu-Jamal is Swarns’s biggest case, and she’s thrilled for the renewed attention it has received. But what she really wants is more scrutiny on an entire system she says is unfair and unjust.

And:

For Swarns and “everybody in the [capital-defense] community,” she says the connection between the death penalty and race is irrefutable. “The death penalty is a direct descendant of lynching,” she says. “The states with the highest number of lynchings also have the highest numbers of death-penalty executions.

Swarns will be one of the participant's at UT Law's program Lynching and the Death Penalty, March 23 & 24.  It's noted, here.  Coverage of Mumia Abu-Jamal's case is also available.

Michael Meltsner's classic book on LDF's involvement in death penalty cases in the 1960's and '70's, Cruel and Unusual: The Supreme Court and Capital Punishment, has recently been reissued by Quid Pro Books.  Coverage of Meltsner's book is also available.

The New Jim Crow - Now in Trade Paperback

Leonard Pitts' writes, "The new Jim Crow alive and thriving," in his syndicted column.  It's via his home paper, the Miami Herald.

In June of 2010, I wrote in this space about a book, The New Jim Crow, by Michelle Alexander, which I called a “troubling and profoundly necessary” work. Alexander promulgated an explosive argument. Namely, that the so-called “War on Drugs” amounts to a war on African-American men and, more to the point, to a racial caste system nearly as restrictive, oppressive and omnipresent as Jim Crow itself.

This because, although white Americans are far and away the nation’s biggest dealers and users of illegal drugs, African Americans are far and away the ones most likely to be jailed for drug crimes. And when they are set “free” after doing their time, black men enter a legal purgatory where the right to vote, work, go to school or rent an apartment can be legally denied. It’s as if George Wallace were still standing in the schoolhouse door.

The New Jim Crow won several awards, enjoyed significant media attention, and was an apparent catalyst in the NAACP’s decision last year to call for an end to the drug war. The book was a sensation, but we need it to be more. We need it to be a movement.

As it happens and not exactly by coincidence, Alexander’s book is being reissued in paperback this week as we mark the birthday of the man who led America’s greatest mass movement for social justice. In his battle against the original Jim Crow, Martin Luther King, in a sense, did what Alexander seeks to do: pour sunlight on an onerous condition that exists just beyond the periphery of most Americans’ sight.

And:

On March 15, Alexander has agreed to appear with me at Books & Books in Coral Gables, where I will moderate a discussion with an audience. You’ll also be able to submit questions via Twitter @MiamiHeraldLive and Facebook. Video from the event will be posted on The Miami Herald’s website.

On Monday, Dave Davies interviewed Michelle Alexander on the WHYY-produced Fresh Air on National Public Radio, "Legal Scholar: Jim Crow Still Exists In America."  There is audio at the link.

Under Jim Crow laws, black Americans were relegated to a subordinate status for decades. Things like literacy tests for voters and laws designed to prevent blacks from serving on juries were commonplace in nearly a dozen Southern states.

In her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, legal scholar Michelle Alexander writes that many of the gains of the civil rights movement have been undermined by the mass incarceration of black Americans in the war on drugs. She says that although Jim Crow laws are now off the books, millions of blacks arrested for minor crimes remain marginalized and disfranchised, trapped by a criminal justice system that has forever branded them as felons and denied them basic rights and opportunities that would allow them to become productive, law-abiding citizens.

Related posts are in the books and race indexes.

From Alabama

"It's hard to argue with a state senator's logic for why Alabama should abolish the death penalty," is the title of an editorial in today's Birmingham News.

If executing people really serves as a deterrent to murder, why isn't Alabama sending fewer people to Death Row?

It's a question state Sen. Hank Sanders raised in a speech Sunday, and it's one that his colleagues in the Alabama Legislature should seriously consider. Then, maybe they'll consider Sanders' legislation to abolish the death penalty altogether.

So many arguments can be made for why the state of Alabama should stop this insanity. There's nothing fair about the way the state determines who will die. What makes a murder subject to capital punishment can be something so arbitrary as whether the victim was inside or outside at the time. And whether a death sentence will actually be inflicted depends on a hodgepodge of factors far more arbitrary than the legal criteria. What color was the skin of the victims? How diligent was the defense lawyer? Did the local district attorney even seek the death penalty? Did the judge opt for a death sentence even if a jury recommended against it?

And:

Locking up a killer for life is the alternative to death in capital cases. That is enough to keep Alabamians safe, and a series of studies shows it is cheaper than pursuing an execution to the end.

The state should put the death penalty to death. It isn't fair, necessary or cost-effective, and if the purpose of it is to stop murder, it isn't working.

"Selma senator wants to abolish death penalty," by William White is from the Opelika-Auburn News.

A state senator from Selma says he plans to introduce a bill to abolish the death penalty in Alabama during the upcoming regular session of the Legislature.

 “I call it murder when the state of Alabama makes the deliberate decision to kill a person,” said Sen. Henry “Hank” Sanders,D-Selma.

Sanders spoke to the congregation and guests Sunday at the Auburn Unitarian Universalist Fellowship for the first in a series of meetings for “The Journey of Hope – from Violence to Healing,” which highlights concerns about the death penalty in Alabama.

While Sanders had introduced legislation for a moratorium on executions previously, he said he plans to take the next step in the upcoming session that begins Feb. 7.

“I will introduce a bill to abolish the death penalty,” said Sanders to the applause of the audience at the church.

Also from Alabama, there is news of a new book.  "Lawyer Richard Jaffe questions the death penalty in 'Quest for Justice: Defending the Damned'," by Kent Faulk is from the Birmingham News.

In his more than three decades as a lawyer, Richard Jaffe has defended hundreds of people charged with ending the lives of others -- including more than 60 charged with capital murder.

Some were acquitted. Others were not. But Jaffe believes not one of his clients, or those of any other lawyer, should ever have to face the ultimate penalty for their crimes -- death.

Through a retelling of some of the high-profile and more routine cases he has handled in his new book -- "Quest for Justice: Defending the Damned" -- Jaffe poses what he says are troubling questions about the use of the death penalty in Alabama and elsewhere.

And:

Three of the 138 people exonerated and released from Death Rows in the United States -- Bo Cochran, Gary Drinkard, and Randal Padgett -- were clients Jaffe took on after initial convictions and death sentences. He helped another Death Row inmate win a new trial at which he was acquitted.

"The death penalty doesn't work; therefore, no one should be subjected to it, for all the reasons I lay out in the book," Jaffe said.

Birmingham's CBS affiliate, WIAT-TV, also profiled the book, "Death Penalty: Quest for Justice."  There is video at the link.

Defense Attorney Richard Jaffe doesn't believe he will change minds about the death penalty with his new book out in February, Quest for Justice: Defending the Damned. But he does hope the public will at least begin to ask more questions.

Among those questions the cost of the death penalty and his belief that it does not deter crime. He also objects to the way death sentences are handed out, something he likens to a game of chance. "It's a lottery, a true lottery. You have no idea who gets it even if you knew the facts of the case first which end in execution and which don't."

And:

He predicts the Troy Davis case may point to the end of the death penalty. The Georgia man was executed despite widespread doubts about his guilt.

Earlier coverage from Alabama begins at the link; there's also coverage of the state's unique judicial override mechanism in capital cases.

Scott Turow's Innocent - Tonight

A reminder that Scott Turow's 2010 novel, Innocent, has been turned into a TNT movie, "Scott Turow's Innocent," premiere Tuesday, November 29, on the cable channel.

An earlier post has details.  There will also be showings on December 2 and 3.

Turow is also the author of, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. It's an excellent primer on capital punishment from a talented writer.

Ultimate Punishment is drawn from his service on the Illinois Governor's Commission on Capital Punishment.  The Illinois Commission was appointed in 2000 by then-Governor George Ryan after he imposed a moratorium on executions.  The Commission's report was issued in 2002.  Earlier this year, with the moratorium still in place, Illinois replaced its death penalty with a sentence of life without parole.

Scott Turow's Innocent

Scott Turow's 2010 novel, Innocent, has been turned into a TNT movie, "Scott Turow's Innocent," which will premiere Tuesday, November 29, on the cable channel.  Here's part of the blurb:

Bill Pullman (Independence Day, Torchwood) stars as Rusty Sabich, a judge charged with the murder of his wife, a situation that comes 20 years after he was cleared in the death of his mistress. During this latest trial, a secret affair from Rusty's recent past threatens to hamper his defense and fracture his relationship with his son. Oscar® winner Marcia Gay Harden (Pollack, Damages) plays Rusty's wife, while Alfred Molina (Spider-Man 2, Law & Order: LA) is his friend and defense attorney.

And:

Scott Turow's Innocent is a sequel to Turow's bestseller Presumed Innocent. The movie is written and directed by Mike Robe.

The made-for-cabel movie was also the topic of a New York Times article, "Made-for-TV Movies, Reborn on Cable," by Kathryn Shattuck in the Sunday Arts section.

IT’S a scene a movie studio might once have spilled a little blood for: Bill Pullman, stepping into the shoes of Harrison Ford as Rusty Sabich, the prosecutor turned suspected murderer in “Presumed Innocent,” the 1990 hit based on the thriller by Scott Turow. Marcia Gay Harden as Rusty’s brilliantly deranged spouse. Alfred Molina as the defense lawyer Sandy Stern. And Mr. Turow himself, who, despite initial resistance to writing a sequel, revisiting the Sabich saga some 20 years later.

But these days it’s exactly the kind of movie a studio probably wouldn’t touch. Instead “Scott Turow’s Innocent,” which now places Sabich behind the murder of his wife, brings its pedigree to cable television, increasingly the home for Hollywood types who crave adult-oriented drama.

“Innocent,” to be shown on Nov. 29, is the first entry of TNT’s “Mystery Movie Night,” weekly adaptations of novels by Sandra Brown, Lisa Gardner, Richard North Patterson, April Smith, Mary Higgins Clark and Carol Higgins Clark, starring veterans like Dermot Mulroney, Anne Heche, Judd Hirsch and Jane Alexander.

And:

For Mr. Turow, “the biggest benefit is that it gets made,” he said, noting that his novel “Innocent,” published in May 2010, took months to become a television movie versus years of feature development.

In addition to his novels, Turow is also the author of, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. It's an excellent primer on capital punishment from a talented writer.

Ultimate Punishment is drawn from his service on the Illinois Governor's Commission on Capital Punishment.  The Illinois Commission was appointed in 2000 by then-Governor George Ryan after he imposed a moratorium on executions.  The Commission's report was issued in 2002.  Earlier this year, with the moratorium still in place, Illinois replaced its death penalty with a sentence of life without parole.

A Man Who Knew About the Electric Chair

That's the title of Ralph Blumenthal's post at the New York Times City Room blog about Lewis E. Lawes, the legendary warden of New York's Sing Sing Prison, Lewis E. Lawes.  Here's an extended excerpt of this must-read:

Nobody killed more people, with more regret, than Lewis E. Lawes.

The warden of the Sing Sing Correctional Facility for 21 years, Lawes supervised the executions of 303 prisoners, all the while condemning the practice of capital punishment as barbaric, inequitable and futile.

As Hollywood’s favorite “fearless, fighting warden,” with a soft heart for his “boys,” Lawes was in charge of the prison through two turbulent decades, from the Jazz Age and the Great Depression to World War II.

“I shall ask for the abolition of the Penalty of Death,” he wrote in 1923, quoting Lafayette, “until I have the infallibility of human judgment demonstrated to me.”

Executions at the prison, in Ossining, N.Y., left Lawes physically ill, his trove of papers at the John Jay College of Criminal Justice shows. Once, when a condemned man named Patrick Murphy pleaded for a strictly prohibited last drink of spirits, Lawes broke the rules to deliver a medicinal dose of bourbon. Murphy accepted it gratefully and then offered it back to the stricken Lawes, saying, “You need the shot more than I do, warden.”

But he was no pushover. “Hell,” he wrote in one of his many books, “Invisible Stripes,” “the only law in Sing Sing is Lawes.”

So with the United States Supreme Court now reviewing the Alabama case of the death row inmate Cory Maples, whose appeal got waylaid in the mail, and weeks after a lethal injection ended the life of Troy Davis still protesting his innocence in the killing of a Georgia police officer, it would hardly be amiss to summon Lawes (who died in 1947 at 63) as an expert witness on the subject of state-ordered death.

Barely one out of 80 killers actually paid with his life, Lawes liked to note. Where was the equity in that? And, he asked, “Did you ever see a rich man go the whole route through to the Death House? I don’t know of any.”

Recently, a number of prominent former corrections officials have spoken out against capital punishment; coverage begins at the link.

In 2004, Blumenthal wrote Miracle at Sing Sing : How One Man Transformed the Lives of America's Most Dangerous Prisoners.  The long time Times writer served as the paper's Houston bureau chief several years ago.

Oregon to Change Execution Time

Today's Oregonian reports, "Instead of a midnight execution, state plans 7 p.m. death for Gary Haugen."  It's by Helen Jung.

When the state executed Harry Charles Moore in 1997, it chose the eeriest of hours -- just after midnight -- to deliver the lethal combination of drugs to the double murderer. 

But if the state executes inmate Gary Haugen on Dec. 6 as planned, the procedure would unfold around 7 p.m.

The timing would help the state Corrections Department coordinate security with other public safety agencies, reduce the impact on employee schedules and limit disruptions to the inmates, said spokeswoman Jeanine Hohn.

The switch is one that several states across the country have made in recent years, trading out the midnight execution times for daytime or evening hours, said John Bessler, an associate law professor at the University of Baltimore and author of Death in the Dark: Midnight Executions in America.

In some cases, the tradition goes as far back as the 1880s, he said, as states sought to crack down on the "carnival-like atmosphere" that accompanied hangings in the public square.

By bringing the executions inside prison grounds and moving the times to the dead of night, officials were able to limit attendance -- and media attention -- to the executions, he said.

Earlier coverage from Oregon begins at the link.

Our ‘Broken System’ of Criminal Justice

That's the title of Justice John Paul Stevens latest essay in the New York Review of Books.  It appears in the November 10 issue.  It reviews the new book, The Collapse of American Criminal Justice by William J. Stuntz, published by Belknap Press/Harvard University Press.  Here's the beginning of this must-read:

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans.

The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.

Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice. Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street.

Much more than a hat tip of credit to Andrew Cohen and his Atlantic post, "Justice Stevens Speaks His Mind."

Suddenly, John Paul Stevens is everywhere. The retired Supreme Court justice has chimed in on the death penalty, written his memoirs, spoken about judicial ethics, and called the Bush v. Gore case "frivolous." And last week, in a chatty essay for The New York Review of Books, he offered some insight into the chaos (and inherent unfairness) that is the criminal justice system in America. At the age of 91, Stevens evidently has a lot to say after 35 cloistered years on the Court.

Some people are annoyed by Stevens' high profile. They think it's unbecoming for a retired justice to speak out so candidly on live legal issues. On the right, they conveniently cast Stevens' recent pronouncements as proof of his "liberal" nature, allowing them to ignore the fact that the High Court moved further to the right than the Ford appointee moved to the left during his tenure. Me? I think it's great that the man is speaking out and speaking up. He's earned the right, first of all, and he also happens to be a natural and excellent legal analyst.

His latest essay -- "Our 'Broken System' of Criminal Justice," from the New York Review of Books -- is a great example. In it, Stevens does a great job not just of translating the language of the law to lay people -- which is the most important thing a legal analyst can do -- but also providing the sort of context and perspective that only a retired Supreme Court justice can offer. Here, Stevens is a pivot for the rest of us; he links us to the legal and political history behind the criminalization of American life while showing us how that past directly impacts modern jurisprudence.

And:

Lord knows, the world doesn't need any more lawyers. But it can always use a good legal analyst. I hope Stevens continues to speak out and write about the law. If he educates only one viewer or reader at a time, he'll be doing the nation another great service.

Justice Stevens' own book, Five Chiefs: A Supreme Court Memoir, was published last month.  Earlier coverage of Justice Stevens and his book begins at the link.

Washington, D.C.'s great independent book seller Politics & Prose will host an author event with Justice Stevens on Nov 7, 2011, however, I understand the event is already sold out.

Late last year, Justice Steven's wrote, "On the Death Sentence," for the New York Review of Books.  The essay is noted here.and  commentary on his essay begins at the link.

Kirk Bloodsworth on the Hank Skinner Case

"Texas Must Test DNA Before Carrying Out Skinner Execution," is the title of Kirk Bloodsworth's essay at Huffington Post, this morning.  He was the first DNA exoneree convicted of a capital crime in America.  His story is told in Bloodsworth: The True Story of One Man's Triumph over Injustice by Tim Junkin.

Test the DNA. That is the simple request of Hank Skinner to Texas officials before they carry out his execution, which is scheduled for November 9. I do not know if Mr. Skinner is innocent or guilty -- but I do know firsthand the critical importance of DNA testing. Nearly twenty years ago, I became the first person in the United States exonerated from death row when post-conviction DNA testing proved my innocence.

In 1985, I was convicted and sentenced to death in Maryland for a crime I did not commit. I spent eight years in prison, two of those on death row, before I obtained the testing that led to my exoneration.

DNA testing not only proved my innocence. Ten years after I was released from prison, DNA helped identify the true person who committed the tragic murder of a young girl for which I had faced execution. That person confessed and is serving life in prison.

The only reason my name was cleared, and the right man brought to justice, is because prosecutors agreed to test the evidence. I am living proof that when scientific evidence is available, there is simply no excuse to refuse testing.

Texas officials have senselessly fought against DNA testing in Mr. Skinner's case for over a decade. Mr. Skinner came within one hour of execution last year before the U.S. Supreme Court intervened. He now faces execution again despite the State's continuing to vehemently block testing of key pieces of never-tested DNA evidence.

And:

Since my exoneration, I have worked to ensure that no defendants are denied the critical testing that saved my life. That is why I helped champion a federal law in 2004 to provide funds for post-conviction DNA testing.

Just this year, Texas lawmakers similarly recognized the vital importance of DNA testing. In May, the Texas Legislature passed a law expanding access to post-conviction DNA testing. The new law is designed for cases like Mr. Skinner's, where available DNA evidence has never been tested. Testing reliable scientific evidence can provide certainty and help maintain confidence in the criminal justice system.

The State has absolutely nothing to lose by putting off Mr. Skinner's upcoming execution to allow these tests to be conducted. Whether DNA proves Mr. Skinner's guilt or innocence, Texas officials should not be afraid of seeking the truth.

DNA allowed the mistakes in my case to be caught in time. Texas must test the evidence in Mr. Skinner's case before it is too late.

Earlier coverage of Hank Skinner's case begins with the preceding post.

Events Roundup

The Texas Book Festival takes over the Capitol complex this weekend in Austin.

Michele Deitch will be moderating a panel at the Texas Book Festival dealing with juvenile justice and the treatment of children and youth in Texas.  The panel features two great authors--Bill Bush, the author of The State of Our Children: Texas as a Parent, on the history of juvenile justice crisis and reform in Texas, and Sherry Matthews, the author of an oral history of the Waco State Home--a children's home for neglected and dependent youth. 

The session is Saturday, October 22nd from 1:30 - 2:30 pm, in the Capitol Extension, Rm. E2.014

Earlier coverage of Michele Deitch's work in juvenile justice is noted at the link. 

Also:

The Trials of Eroy Brown: The Murder Case That Shook the Texas Prison System is Michael Berryhill's book on prison civil rights and the collapse of Jim Crow justice in Texas. He presents Brown's story in his own words, set against the backdrop of the chilling plantation mentality of Texas prisons. Berryhill chairs the journalism program at Texas Southern University.  The program is moderated by Texas Monthly editor Nate Blakeslee.

It's Sunday, October 23rd from 11:00 - 11:45 am in Capitol Extension Room E2.014.

On October 24th in San Antonio, the Catholic Mobilizing Network and the Texas Coalition to Abolish the Death Penalty  are co-sponsoring a “Religious Leaders Dialogue on the Death Penalty”."

The event, will take place at Trinity University, from 7-9 p.m. in Laurie Auditorium, will be moderated by CMN Executive Director Karen Clifton.

Leaders from the following institutions are confirmed to attend: the Roman Catholic Archdiocese of San Antonio; Mission Presbytery; the Episcopal Diocese of West Texas; the Evangelical Lutheran Church -  Southwestern Texas Synod; Temple Beth-El; and the United Methodist Southwest Texas Conference.

Related posts are in the books, event, and religion indexes.

A Q&A With Michael Meltsner on the Reissue of Cruel & Unusual

Earlier this week I noted the reissue of Cruel and Unusual: The Supreme Court and Capital Punishment, Michael Meltsner's classic book detailing death penalty litigation in the 1960's and 1970's at the NAACP Legal Defense Fund (LDF).  Better still, the Quid Pro Books edition has a new preface by the author.

I'm very happy that Michael Meltsner took the time to participate in a Q&A.  He's a senior professor of law at Northeastern University School of Law in Boston, and its former dean.

Q.  This is a classic book, and I'm really glad that it will now be widely available again.  What was it like to revisit your original work with the passage of time and to write the new forward?

A.  Much has happened since publication of the first edition in 1973, but to my surprise I realized we still live in a legal world governed by the tension between Furman and Gregg.  My main reaction, however, was more personal than professional: I thought about the lawyers, secretaries and advocates with whom I worked closely, some of whom are no longer with us. An extraordinary group. I asked myself how did they find the energy and imagination to do what they did?

Q.  It must have been incredibly frustrating to see the states' reaction to Furman, quickly resulting in new death penalty statutes.  What was that like?

A.  Yes frustrating it was. Defeat snatching victory just as we were getting used to it. (Like the Red Sox losing its nine game lead in September:)) But then the Furman victory was itself unexpected. We lived roller coaster lives those years.

Q.  Now, a generation and nearly 1,300 executions later, it's increasingly clear that America's death penalty remains arbitrary and capricious, largely limited to the American South.  Death sentences are dropping and one by one state legislatures are replacing capital punishment.  What do you see for the future?

A.  I see an unwilingness to use the death penalty for any substantial public purpose and an incapacity in a number jurisdictions to discard it. Think of trying to take away a child's pacifier! He no longer needs it but will fight like crazy to keep it around.

Q.  At a symposium on the future of death penalty scholarship at the University of Albany, Hugo Adam Bedau started his keynote by reciting recent book titles on the death penalty - the point being that every year brings an increasing number of book focused on this failed experiment.  For those who haven't read Cruel & Unusual and don't know its history, what makes it relevant today?

A.  I'm told you can't practice in the field at a high level without understanding the road to Furman, but I agreed to a second edition because people I respect flattered  me by saying the book was a great read as well as a primer on litigation strategy and tactics. I still teach a course on constitutional litigation that deals with strategy and tactics so I was an easy sell. BTW last year I was honored to have received an award in Hugo Bedau's name; his scholarship laid some of the essential building blocks for the Legal Defense Fund's approach.

Q.  You've had a superlative career.  What role did death penalty litigation play in shaping your life in the law?

A.  I deal with this at length in my 2006 memoir, The Making of a Civil Rights Lawyer. In brief though, at a remarkably early age I had the opportunity to argue capital cases, one before the Supreme Court. Working with lawyers like Tony Amsterdam, Jack Greenberg and Jim Nabrit was my true legal education. But the deeper meaning, one that shaped a lot of my subsequent work, was an intimate knowledge of how dysfunctionally our society deals with violence    

Q.  Thanks.

Alan Childress, the publisher at Quid Pro Books, Tulane Law prof, and editor at the Legal Profession Blog, also joined in the Q&A.

Q.  What led you to start Quid Pro Books?  Between your duties and research at Tulane Law and editing the Legal Profession Blog, it seems that you already have a reasonably full plate.

A.  Last year, I figured that the Kindle and iPad meant a whole new life for classics in law & society that had gone out of print. Most nonfiction publishers did not seem eager to create ebooks, or at least priced them high to drive readers back to print books. All 50 of our ebooks or journals are $9.99 or less. All have affordable paperbacks, too, because there is still a need for their availability to, really, a different market. There was no shortage of great books that needed new editions, written by the best people in their fields . The project took off, and now brings out all-new books too, such as Lawrence Friedman's The Human Rights Culture. As to having time to do it despite blogging, I recommend to you a prodigious co-blogger. In my case Mike Frisch is a blogging machine, not me.

Q. Publishing has been undergoing a revolution in recent years.  You touched on this, but how important is it to have e-editions along with hard copies of these works that have been out of print.

A. Extremely, even though there are many people who understandably prefer print editions. For others, Kindles and apps are nice. But for some people who need large print, or text-to-speech, or access to books instantly in remote places or other countries, ebooks are more than a convenience: they restore reading to people who lacked realistic access before. For out of print classics, in particular, the economics make more sense for ebooks--no warehousing, lower production costs, potential worldwide market. In the future the percentage of people who get their books in a digital format will only increase, of course, but we'll happily produce print editions as long as people read them.

Q.  Any preview of future criminal justice titles we might expect to see?

A.  Hmm. None scheduled for the short run. Some criminal law fiction is coming. But more traditionally, this spring we republished Jerome Skolnick's Justice Without Trial, with a new Foreword by Candace McCoy, and Stuart Scheingold's The Politics of Law and Order, with new Foreword by Malcolm Feeley.    Both are very recognized titles in legal sociology and political science, respectively.

Q. Besides criminal justice topics, do you have any other books that may be of special interest to our Texas readers?

A. Yes, thanks, at least for those who also have dealings over our border into Louisiana, or are curious about civil law terms. It's a Louisiana Civil Law Dictionary.  I also think some may be interested in a history of the Bracero guestworker program, Kitty Calavita's Inside the State.  And as noted before, Lawrence Friedman of Stanford has a new book out on human rights.

Q.  The legal community was an early and enthusiastic adopter of blogs, and the network of law professor blogs covers an entire spectrum of legal issues.  The blogs certainly help to disseminate traditional scholarship, and enlarge the community for discussion, but they do more, as well.  What lessons have you learned from editing the blog.

A. Other than the advice earlier of enlisting a co-editor who is committed to regular postings and knows how to dig up stories of interest, I learned that such stories and open questions -- on legal ethics, in the case of our blog -- lurk everywhere, but aren't well organized. State bar discipline reports, for many states, are not as accessible or open as you'd think. We find the ethics angles in ordinary news stories too.

Many thanks to Michael Meltsner and Alan Childress for taking the time to participate.  Harry Truman often said, "The only thing new in the world is the history you don't know."  Cruel & Unusual is a vital and foundational book, essential to really understand American states' application of the death penalty today.

Earlier coverage of the reissue of Cruel & Unusual begins at the link.

A Classic Book Reiussued

Cruel and Unusual: The Supreme Court and Capital Punishment is Michael Meltsner's gripping account of the NAACP Legal Defense Fund's original campaign to abolish the death penalty, ending with the Supreme Court's 1972 ruling in Furman v. Georgia.  Meltsner is a senior professor of law at Northeastern University School of Law in Boston, and its former dean.

The Quid Pro Books edition has a new foreword by Evan Mandery of the John Jay College of Criminal Justice and a new preface by the author.

It's available in a variety of formats, includinging Amazon paperback, Kindle edition, as well as Barnes & Nobel Nook or print editions.   It's also available on Apple iBooks and at Sony's ebookstore.

Credit for the reissue goes to Alan Childress, a Tulane Law prof, an editor at the Legal Profession Blog, and publisher at Quid Pro Books.

Here's Amazon's product description:

The true and gripping account of the nine-year struggle by a small band of lawyers to abolish the death penalty in the United States. Its new edition features a 2011 Foreword by death penalty author Evan Mandery of CUNY's John Jay College of Criminal Justice, as well as a new Preface by the author. The mission, plotted out over deli sandwiches in New York's Central Park in the early 1960s, seemed as impossible then as going to the moon: abolish capital punishment in every state. The approach would fight a war on multiple fronts, using multiple strategies. The people would be dedicated, bright, unsure, unpopular, and fascinating. This book is their personal history: not only the cases and the arguments before courts, the death row inmates and their victims, the judges and politicians urging law and order – this is the true account of the real-life lawyers from the inside. The United States indeed went to the moon, and a few years later the U.S. Supreme Court ruled the death penalty unconstitutional. The victory was long-sought and sweet, and the pages of this book vividly let the reader live the struggle and the victory. And while the abolition eventually became as impermanent as the nation's presence on the moon, these dedicated attorneys certainly made a difference. This is their story.

As Evan Mandery writes in his new Foreword, "In these pages, Meltsner lays bare every aspect of his and his colleagues’ thinking. You will read how they handicapped their chances, which arguments they thought would work (you may be surprised), and what they thought of the Supreme Court justices who would decide the crucial cases. You will come to understand what they perceived to be the basis for support for the death penalty, and, with Meltsner’s unflinching honesty, what they perceived to be the inconsistencies in their position." Mandery concludes: "It is my odd lot in life to have read almost every major book ever written about the death penalty in America. This is the best and the most important.

Every serious scholar who wants to advance an argument about capital punishment in the United States – whether it is abolitionist or in favor of the death penalty, or merely a tactical assessment – cites this book. It is open and supremely accessible." And the author's "constitutional vision was years ahead of its time. His book is timeless." Part of the Legal History & Biography Series from Quid Pro Books, the new editions (in print and ebook formats) feature embedded pagination from previous editions, allowing continuity in all new formats and across all prior printings. This book has been adopted in many classes in colleges and law schools, but it is not written just for lawyers and students – it is not burdened with legal jargon and heavy legal analysis. It is accessible to a wide audience and tells the personal stories of the people involved, as well as examining the strategies and the legal and political nuances of death penalty litigation in the United States.

About the Author
Michael Meltsner is a senior professor of law at Northeastern University School of Law in Boston, and its former dean. Hired by Thurgood Marshall as only the second white lawyer on the staff of the NAACP Legal Defense Fund, Meltsner litigated cases throughout the country and in many causes before teaching law at Columbia, Harvard, and Northeastern Universities.

Related posts are in the books index.

John Paul Stevens: The Vote He Would Take Back

"Retired Justice John Paul Stevens on His ‘Wrong’ Vote on Texas Death Penalty Case," is the title of George Stephanopoulos' post at ABC News.

Retired Justice John Paul Stevens is a man of few regrets from his nearly 35 years on the Supreme Court, except one – his 1976 vote to reinstate the death penalty.

“I really think that I’ve thought over a lot of cases I’ve written over the years.  And I really wouldn’t want to do any one of them over…With one exception,” he told me.

“My vote in the Texas death case.  And I think I do mention that in that case, I think that I came out wrong on that,” Stevens said.

 At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said. But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens.

The retired associate justice has been an outspoken opponent of the death penalty, but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week.

He writes in his book, “Five Chiefs,” that he regretted the vote “because experience has shown that the Texas statute has played an important role in authorizing so many deaths sentences in that state.”

ABC News has also posted the full transcript of the interview with Justice Stevens.  Here's an excerpt dealing with capital punishment.

GEORGE STEPHANOPOULOS: You of course, became an outspoken opponent of the death penalty in your time on the court.  How did you evolve?  Can you summarize how your own views evolved?

JOHN PAUL STEVENS: About the death penalty?  Well, of course, it’s a long story, because I’ve been involved in that issue for so long.  But there also you have to keep in mind, there are always two part to the question.  One is, “When do you think it’s constitutional to have the death penalty?”  And the other question is whether one thinks it’s a wise thing to do.  And on the second question, whether your opponent is a matter of policy I’ve never felt that it was a particularly wise method of punishment.  And several of the members of the court, I can say specifically Warren Burger and Harry Blackmun, although they voted to uphold the penalty consistently early on, they personally did not think it made sense.

But my own thinking on the issue, on the constitutional issue evolved over the years, after our first decision in 1975, in the first year that I came in the court, in which at which time I thought the court was adopting procedures and rules that would confine the imposition of the death penalty into a very narrow set of cases.  And they took special pains to have fair procedures.

And over the years, the– I was disappointed to find they expanded the category of cases, rather dramatically later on, in ways that I don’t think Potter Stewart would have agreed with– who was sort of the principle author of our join opinion on– and they also have relaxed procedures in ways that actually give the prosecutor advantages in capital cases that I don’t think he has in ordinary criminal cases.  And so that seemed to me there’s a change in the general atmosphere around capital cases that occurred over the years and made me–

GEORGE STEPHANOPOULOS: It seems like there may be another evolution now in the country that the case of Troy Davis, executed last week.  It appeared with the protests around that that the country may be heading towards a tipping point in another direction, against the death penalty.  Is that what you see?

JOHN PAUL STEVENS: I don’t know.  I’m not a very good judge of public reaction on something like that.  But I think there always has been a significant group that felt that the penalty really wasn’t worth it and caused more harm than good.

And:

GEORGE STEPHANOPOULOS: Which case are you most proud of in your career?

JOHN PAUL STEVENS: You know, I’ve been asked that question a lot and I should be ready for– with an answer.  I’m– there– there are a lot of them, to tell you the truth.  And I really think that I’ve thought over a lot of cases I’ve written over the years.  And I really wouldn’t want to do any one of them over.

GEORGE STEPHANOPOULOS: Not one?

JOHN PAUL STEVENS: With one exception.

GEORGE STEPHANOPOULOS: Which is?

JOHN PAUL STEVENS: My vote in the Texas death case.  And I think I do mention that in that case.  I think that I came out wrong on that.

GEORGE STEPHANOPOULOS: And one of the things we’ve seen in Texas is a proliferation–

JOHN PAUL STEVENS: Right.

(OVERTALK)

GEORGE STEPHANOPOULOS: –of executions.

JOHN PAUL STEVENS: And I think that my law clerk at the time sort of foresaw that that was a problem that was inherent in the way that statute was drafted.

GEORGE STEPHANOPOULOS: I don’t know if you saw it, but there was actually a moment in the last couple of weeks, in one of the presidential debates, where the number of executions in Texas was cited, and the crowd cheered.

JOHN PAUL STEVENS: I noticed that, yeah.

GEORGE STEPHANOPOULOS: What did you think?

JOHN PAUL STEVENS: I was– I was rather disappointed, because it– maybe one believes, and certainly a lot of people sincerely do, that it is an effective deterrent to crime and will in the long run will do more harm than good.  I don’t happen to share that view.  But there are obvious people who do.  And, of course, being hard on crime has been– always– is politically popular, let’s put it that way.

More on on Jurek v. Texas, 428 U.S. 262 (1976):, via Oyez.

Justice Stevens' book, Five Chiefs: A Supreme Court Memoir, is now available.  It's published by Little, Brown and Company.

Washington, D.C.'s great independent book seller Politics & Prose will host an author event with Justice Stevens on Nov 7, 2011.  I'll post news of additional author events.

Late last year, Justice Stevens wrote, "On the Death Sentence," for the New York Review of Books.  The essay is noted here.and  commentary on his essay begins at the link.

Black, Brown and Invisible: Minorities on Death Row

That's the title of an event in Houston, tonight, at the University of St. Thomas.

Scholars and legal experts join author and former Mexican Consul General of Houston Ricardo Ampudia in a conversation about the impact of the death penalty, particularly on minority defendants.  Topics to be addressed include capital punishment, innocence, disregard of Geneva Conventions and other accords concerning consulates and detained nationals.  A Q&A will be moderated and followed by a book signing.

Participants:
· Ricardo Ampudia is a journalist, diplomat and author of Mexicans on Death Row (Arte Público, 2010), which explores the history and ethics of capital punishment and how it affects the sentencing of Mexicans in the United States.

· Scott J. Atlas, a former litigation partner for the firm Vinson & Elkins (1982 -- 2006), led the legal team that won the release of Ricardo Aldape Guerra, an undocumented immmigrant who spent 14 years on death row.  He was the first Mexican National ever released from Texas' death row.

· Nicole Casarez. attprmeu amd professor at the University of St. Thomas, teaches journalism, media law, public relations and media ethics.  Casarez's affiliation with the Texas Innocence Network has led to investigative work on numerous capital and non-capital cases, including that of exonerated Texas dath row inmate Anthony Graves.

· David R. Dow is the Cullen Professor at the University of Houston Law Center, Rorschach Visiting Professor of History at Rice University and founder of the Texas Innocence Network.  Dow is the author of The Autobiography of an Execution

The book is Mexicans on Death Row by Ricardo Ampudia.

Ricardo Ampudia explores the history and ethics of the death penalty in this fascinating look at its impact on Mexicans sentenced to death in the U.S.  Originally published in Mexico as Mexicanos al grito de muerte, this absorbing account of the history, use and flaws of the death penalty is a must-read for anyone interested in the criminal justice system.

The event is free and open to the public.  For more information, call 713-743-2999.

The event on Twitter is:

#blackbrowndeathrow

Related posts are in the books, event, and foreign citizen index.

Webcast Today

The Constitution Project's Constitution Day program on wrongful convictions will be webcast today, live from Georgetown Law School in Washington, DC.

Annual Celebration of Constitution Day
Fifth Annual Constitutional Commentary Award Presentation and Discussion with the Honorees

Join The Constitution Project, the Mid-Atlantic Innocence Project, and Georgetown University Law Center as we recognize distinguished authors Jim and Nancy Petro and Brandon Garrett for their respective books, False Justice: Eight Myths that Convict the Innocent  and Convicting the Innocent: Where Criminal Prosecutions Go Wrong. In both works, the authors discuss the flaws in our criminal justice system that continue to result in wrongful convictions. The Constitution Project will present the three authors with its Constitutional Commentary Award, given annually to the author or producer of an outstanding work that has improved the quality of public discourse through insightful, articulate analysis of a constitutional issue of the day.  Following the award presentation, Jeffrey Rosen will host a discussion with the three authors.

The webcast will be available here.

WHO:  
Brandon Garrett, Professor of Law, University of Virginia School of Law, author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong

Jim Petro, Former Republican Attorney General of Ohio (2003-2007), and Nancy Petro, co-authors of False Justice: Eight Myths that Convict the Innocent 

Jeffrey Rosen (moderator), Legal Affairs Editor, The New Republic; Professor of Law, George Washington University

WHAT:
Fifth Annual Constitutional Commentary Award Presentation and  discussion with the authors.

WHEN:
Thursday, September 15, 2011 from 3:30-6:30 pm EDT/ 2:30-5:30 pm CDT/ 1:30 pm MDT/ 12:30 pm PDT

WHERE:
Georgetown University School of Law  
Gewirz Student Center, 12th Floor
120 F Street N.W.  
Washington, D.C. 20001

More information at the Constitution Project website.  Earlier coverage of this event is at the link.

From Alabama

"Alabama appeals court decision regarding condemned inmate Anthony Ray Hinton shows yet again why death penalty should be abandoned," is the title of of the Birmingham News editorial.

If there's one thing that should unite those who support the death penalty and those who don't, it's a desire to make sure no one is executed for a crime he didn't commit.

And if there's one thing that ought to preoccupy our justice system, it's making sure such a terrible travesty does not occur.

Unfortunately, that's not the case. A ruling last week by the Alabama Court of Criminal Appeals offers a timely example. The court strains at a gnat in Anthony Ray Hinton's appeal, but blithely swallows a camel -- that is, it overlooks strong evidence that Hinton did not actually commit the deadly restaurant robberies that landed him on Death Row.

And:

People complain about the appeals afforded those sentenced to death, about the legal technicalities that sometimes result in new trials, and about the emphasis on defendants' rights. But for all those restraints, there is no fail-safe mechanism in Alabama that kicks in to ensure innocent people are not convicted and put to death.

In our view, this is the most forceful argument of all for why Alabama needs to abandon the death penalty altogether. The state cannot afford to be so careless in inflicting a punishment that cannot be undone.

And really, the holes in the appeal system are not limited to Alabama, as shown by a book that examined the first 250 cases across the country in which people were cleared by DNA evidence after being convicted of crimes, including some that led to death sentences. The book found that 87 percent of all the convictions were upheld during the regular appeals process. In 10 percent of the cases, appeals courts actually cited the "overwhelming" evidence against people who, we now know, were not guilty at all.

The book "Convicting the Innocent: Where Criminal Prosecutions Go Wrong" also found a number of common threads in those cases that led to erroneous verdicts. In 74 percent of the cases, faulty forensic evidence -- such as ballistics reports -- played a role.

The West Memphis Three and False Confessions - A Special Guest Post

This guest post comes from Brandon L. Garrett, Professor of Law at the University of Virginia School of Law, and author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong.:

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The West Memphis Three and False Confessions

This past Friday at a hearing in Jonestown, Arkansas, the West Memphis Three, who had been convicted in 1994 of murdering three young boys, but had long claimed their innocence, finally became free men by entering a rare deal in which they officially pleaded guilty while maintaining their innocence. Over the years, the cases against the Three had come into doubt. One of the Three, Jessie Misskelley Jr., had implicated the other two after a twelve hour police interrogation. His confession was the basis for the arrests. The alleged ringleader, Damien Echols, had been sentenced to death and had been on death row for 18 years. However, new DNA tests excluded all of the Three and instead matched one of the victim’s step-fathers. With that evidence in hand the Three seemed headed towards a new trial, one in which the prosecution acknowledges the men would likely have been acquitted. This deal securing their release preempts the staging of a new trial, though the prosecutor maintains that Misskelley’s confession was true and all three are guilty.

The case has received national attention over the years, particularly after a remarkable movie about the case, Paradise Lost: The Child Murders at Robin Hood Hills, was released in 1996. The case of the West Memphis Three is the latest high-profile case of a contested police interrogation that was not carefully recorded, making it far more difficult to unravel who said what. The lawyers for the Three maintained that Misskelley’s confession was false, unreliable and included all sorts of statements totally inconsistent with how the crime happened. Misskelley was borderline mentally retarded, with an IQ of 72, yet police persisted with his lengthy interrogation. The few recorded pieces of the interrogations showed police using leading questions to try to tell him what had happened, something that interrogators are trained not to do because it contaminates a confession. We do not know what threats or other techniques were used to secure that confession. Misskelley had promptly recanted his confession, but it was used to arrest and convict him.

In my book, Convicting the Innocent, I discuss what went wrong in the first 250 cases in which DNA cleared innocent people in the U.S. Chapter Two of the book focuses on the forty cases where DNA brought false confessions to light. Many of the forty were young or mentally disabled, partially explaining why they may have been susceptible to police pressure. In addition, all but two of their confession statements were reported to have “inside information” that only the true culprit could have known. Those details may have been fed by police. However, none of the forty false confessions that I studied was recorded in its entirely. We do not know everything that happened in those interrogation rooms. As a result, until DNA technology was developed and provided decisive evidence of innocence, those false confessions appeared to powerfully support the convictions.

A new multimedia resource, called “Getting it Right,” co-produced with the Innocence Project, with support from the Open-Society Foundations, shows how wrongful convictions display patterns that can tell us how to improve our criminal justice system. The resource includes video from the false confession of Frank Sterling, who, like Jessie Misskelley, endured a grueling twelve hour  
interrogation. His case illustrates the importance of requiring the videotaping of entire
interrogations. “Getting it Right” offers a series of links to research and resources for those interested in reading more about false confessions. “Getting it Right” also features an incredibly moving video featuring Jennifer Thompson, describing how she misidentified Ronald Cotton as the man who raped her and how poor lineup procedures played a role. There are also interactive resources on informants and forensic evidence, and on the roles played by law enforcement and lawyers.

The vast majority of criminal cases lack usable DNA evidence. Like the West Memphis Three case, the 250 cases that I studied are all unusual cases in which the “truth machine” of DNA can call into question seemingly rock-solid evidence. That is why it is so important to learn from the wrongful convictions that do come to light – so that we can get it right.

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Many thanks to Brandon Garrett for his work.

Earlier coverage of Professor Garrett, Getting It Right and his book begins at the link.  Coverage of the release of the West Memphis Three is also available.  Related posts are in the false confessions index.

This post also appears on Harvard University Press Blog.