The StandDown Texas Project

Continued Coverage of the National Registry of Exonerations

The National Registry of Exonerations is beginning to garner editorials, and continuing to get focused attention.

"Hard truths about injustice," is the Dallas Morning News editorial.

Call it a graduate course on what can go wrong in the criminal justice system.

There are 891 case studies at present, and climbing.

That’s the number of individual cases listed so far in a new national project on cataloging and dissecting proven miscarriages of justice.

Called the National Registry of Exonerations, the project aims to build the first comprehensive listing of wrongful convictions in America so the public and professionals can learn the hard lesson of failure, then build a better system.

As with a similar, DNA-centered exoneration database maintained by the Innocence Project of New York, this one figures to be a good teacher. And Texas once again has an embarrassingly prominent presence.

So be it. This state needs to have its dirty laundry laid out as often as possible if that’s what it takes to overcome skepticism that things have been just fine the way they are inside Texas’ halls of justice. We know that’s not the case.

"A new National Registry on Exonerations casts doubt on the accuracy of our criminal justice system," is the title of a Birmingham News editorial.

How many people wrongfully convicted of a crime are we willing to accept? Especially those who are sentenced to Death Row?

A report released Monday by the National Registry on Exonerations raises those questions and more. The registry, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, profiles 873 exonerations from January 1989 through February 2012. The report discusses including at least 1,170 other defendants whose convictions were dismissed after more than a dozen major police scandals. Most of those scandals involved the massive planting of drugs and guns on innocent defendants, which led to "group exonerations."

And:

Of the 16 state exonerations in Alabama, six were men sentenced to death. It does not require a vivid imagination to wonder whether a wrongly convicted person awaits execution on Alabama's Death Row or, worse, whether the state has killed an innocent person in our names.

If someone goes to prison for a crime he or she did not commit, it is an injustice. That is especially true in capital murder cases, where a life is at stake. We would like to have as much confidence in Alabama's criminal justice system as Strange professes, but the report on the national registry casts enough doubt to cause grave concern.

The Week magazine bundles, "25 years of wrongful convictions: By the numbers."

891 - Specific wrongful conviction cases detailed in the National Registry of Exonerations

93 - Percent of the exonerated convicts who are men

50 - Percent who are black

10.7 - Average time, in years, from conviction to exoneration

10,000 - Combined time, in years, the 891 exonerated prisoners spent behind bars

2.3 million - People incarcerated in the U.S. 

1,170 - Convicted defendants cleared in 13 "group exonerations" since 1995, following large police-corruption scandals, usually involving planted drugs or guns

416 - People exonerated of wrongful homicide convictions

UMichigan Law prof Sam Gross, co-founder of the Registry, is interviewed on NPR's All Things Considered, "Exoneration List Shows Patterns In False Convictions."  It's conducted by NPR's Audie Cornish.

And, to start, Professor Gross, this registry contains information about, I guess, 2,000 exonerations since 1989, but do you know if that's really a comprehensive list?

SAMUEL GROSS: No, it's not. It's incomplete in two senses. It doesn't include all the exonerations that occurred. It includes those we've been able to get information on. And, second, and really more important, even if we could get information on all the exonerations that have occurred in the United States in the past 20-some years, that would only be a small fraction of the people who were innocent but convicted of serious crimes, despite their innocence.

CORNISH: So, of these 2,000 cases that you talk about, you have almost 900 cases, roughly, that you have the most detail about. And one thing I found interesting is that it wasn't DNA, necessarily, that exonerated all of these people.

GROSS: That's right. If you ask somebody on the street about exonerations, the next word out of their mouth will almost certainly be DNA and that's because DNA exonerations, which started in 1989, have gotten a lot of attention and for good reason. They've taught us a lot about the criminal justice system and they provide a type of scientific evidence of innocence that is very powerful.

But DNA exonerations have always been a minority of the exonerations that occur and the more we learn about exonerations that don't get as much attention, the more non-DNA exonerations we find out about.

Exoneree Franky Carrillo and Sam Gross were guests on MSNBC Politics Nation with Al Sharpton.  Carrillo spoke about his own experience with wrongful conviction and exonerations.

Visit msnbc.com for breaking news, world news, and news about the economy

At Huffington Post David Protess posts, "Meet the Exonerated."  He's president of the Chicago Innocence Project.

Other findings were more nuanced. Notably, exonerations were spread across 43 states, but were most prevalent by far in three states: Illinois, New York and Texas. These states together accounted for one-third of the country's exonerations. Cook County and Dallas County led the way with 114 exonerations between them.

But why? While the knee-jerk reaction is to shout "corruption," the reality is good news more than bad. As the researchers indicate, these areas have been at the forefront of the national innocence movement, with dedicated lawyers, investigators, journalists and even college students engaged in exposing wrongful convictions since the 1990s. In the last five years, the D.A. of Dallas County has remedied injustice in 19 cases, some in collaboration with the local innocence project.

It is reasonable to conclude that if the loosely affiliated public interest groups were to bring their model to populated counties like San Bernardino (Calif.), Fairfax (Va.) and Bergen (N.J.) -- none with an exoneration since 1989 -- the problem of wrongful convictions would suddenly surface.

Another relevant issue is the death penalty. Seven of the 10 states with the most exonerations also had among the highest death row populations. Although fewer than 0.1 percent of prisoners are sentenced to death, 12 percent of exonerees had been condemned. Once again, the death penalty has been a priority of the innocence movement, and many dramatic exonerations have helped to change the conversation about capital punishment in America.

Earlier coverage of the National Registry of Exonerations begins at the link.

Initial News Coverage of the National Registry of Exonerations

Here are links to extensive news coverage of the National Registry of Exonerations.

"Study: 2,000 convicted then exonerated in 23 years," is the AP report filed by Pete Yost.  It's via the Pioneer Press.

More than 2,000 people who were falsely convicted of serious crimes have been exonerated in the United States in the past 23 years, according to a new archive compiled at two universities.

There is no official record-keeping system for exonerations of convicted criminals in the country, so academics set one up. The new national registry, or database, painstakingly assembled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, is the most complete list of exonerations ever compiled.

The database compiled and analyzed by the researchers contains information on 873 exonerations for which they have the most detailed evidence. The researchers are aware of nearly 1,200 other exonerations, for which they have less data.

They found that those 873 exonerated defendants spent a combined total of more than 10,000 years in prison, an average of more than 11 years each. Nine out of 10 of them are men and half are African-American.

Nearly half of the 873 exonerations were homicide cases, including 101 death sentences. Over one-third of the cases were sexual assaults.

DNA evidence led to exoneration in nearly one-third of the 416 homicides and in nearly two-thirds of the 305 sexual assaults.

Researchers estimate the total number of felony convictions in the United States is nearly a million a year.

The overall registry/list begins at the start of 1989. It

gives an unprecedented view of the scope of the problem of wrongful convictions in the United States and the figure of more than 2,000 exonerations "is a good start," said Rob Warden, executive director of the Center on Wrongful Convictions.

"We know there are many more that we haven't found," added University of Michigan law professor Samuel Gross, the editor of the newly opened National Registry of Exonerations.

"Proven innocent after proven guilty," by Carlyn Kolker for ReutersLegal.

Exoneration. It is one of the most redeeming concepts in the American legal system -- the possibility that the justice system will liberate a person who was falsely convicted of a crime. But it is of course also one of the most terrifying aspects of that same system, predicated on the existence of actual failures.

The National Registry of Exonerations, formally inaugurated today by the University of Michigan and the Center on Wrongful Convictions at Northwestern, contains nearly 900 examples of that paradox. The stories, of everyone from white collar defendants to convicted murderers, focus on how these criminal defendants were convicted, and then, thanks to DNA evidence and re-canted testimony, among other things, were subsequently released, sometimes decades after their convictions.

The list dates from 1989 to the present and includes 885 examples from both federal court and state courts around the country. It is something of an information-gathering feat: No authoritative data base on exonerations already exists, and information on individual cases is scattered across a range of different sources, according to Samuel Gross, the University of Michigan law professor who made the registry.

The "easy" cases to identify were ones already investigated by non-profit legal groups such as the Innocence Project, which focuses on exonerating wrongfully-convicted defendants in death-penalty cases. But beyond that, Gross and his assistants (he had about 18 helpers, some volunteer, some part-time) scoured the Internet, newspapers, state and federal court records and interviewed attorneys to come up with the list of defendants across the country - most cases occurred in state courts - about whom they could gather proof that they'd been exonerated for crimes they didn't commit.

"Wrongful convictions shine spotlight on judicial system," by Kevin Johnson, USA Today.

Perjury, faulty eyewitness identification and prosecutorial misconduct are the leading reasons for wrongful convictions, according to the first national registry of exonerations compiled by university researchers.

The database, assembled in a collaboration by the University of Michigan and Northwestern University, has identified 873 faulty convictions in the past 23 years that have been recognized by prosecutors, judges or governors.

The registry's founders say the numbers, which do not include many cases in which innocent suspects plead guilty to avoid the risk of more serious punishments or cases that have been dismissed because of legal error without new evidence of innocence, represent only a fraction of the problem in the nation's criminal justice system.

"What this shows is that the criminal justice system makes mistakes, and they are more common than people think," said University of Michigan law professor Samuel Gross, the registry's editor. "It is not the rule, but we won't learn to get better unless we pay attention to these cases."

Despite the data, the registry concluded that the "overwhelming majority of convicted defendants are guilty."

"New national registry lists exonerations from wrongful convictions," is by Michael Doyle for McClatchy Newspapers.  It's via the Miami Herald.

Obie Anthony served hard time in California prisons for a crime he didn't commit.

He's not alone, and he's not forgotten. Anthony is one of nearly 900 exonerated former prisoners whose wrenching stories are wrapped into a new database. The National Registry of Exonerations, formally unveiled Monday, is the largest of its kind, and it will get bigger over time.

"This is useful, because if we want to prevent false convictions, we have to learn how we make mistakes," Samuel Gross, a University of Michigan Law School professor, said in an interview.

Gross is the editor of the registry, a joint project of the Michigan law school and the Center on Wrongful Convictions at Northwestern University School of Law. By compiling detailed information about an initial 891 exonerations that have been identified since 1989, the organizers say they already have begun to identify disturbing patterns.

Perjury from witnesses was found to be the biggest problem for those wrongfully convicted of murder, the database shows. Mistakes by eyewitnesses are almost always the cause of wrongful rape convictions. In either case, the consequences are severe. About half of the exonerated individuals had been in prison for at least 10 years; 75 percent served five years or more.

"Registry tallies over 2,000 wrongful convictions since 1989," by David G. Savage for the Los Angles Times and the Tribune News Service.

The registry covers the period since DNA came into common use and revealed, to the surprise of many prosecutors and judges, that a significant number of convicted rapists and murderers were innocent. The Innocence Project in New York says DNA alone has freed 289 prisoners since 1989.

Criminal law experts have been studying the growing number of exonerations. Some cases have involved police corruption or witnesses who recanted. Experts have also pointed to faulty eyewitness testimony and lying witnesses as common problems.

Beyond that, a surprising number of cases involved suspects who confessed to crimes they didn't commit.

"Nobody had an inkling of the serious problem of false confessions until we had this data," said Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University. Under persistent and prolonged questioning by investigators, some suspects confessed to crimes such as rape, even though DNA later revealed they were not the perpetrators.

Among the states, Illinois has the most exonerations listed in the new registry, and among counties, Cook County and Chicago led the way, followed by Dallas and Los Angeles. However, the sponsors of the new registry do not contend that their data permits strong comparisons across counties or states because only about 900 of the cases were examined in detail by jurisdiction.

"It's clear that the exonerations we found are the tip of the iceberg," Gross said.

"Researchers: More than 2,000 false convictions in past 23 years," by Elizabeth Chuck at MSNBC.

There is also regional coverage of the report.  "National study tracks number of people falsely convicted of crime," is by Tracey Kaplan for the Silicon Valley Mercury News.

"Report breaks down wrongful convictions," by  Alan Johnson for the Columbus Dispatch.

"New national registry details wrongful convictions," by Paul Purpura for the New Orleans Times-Picayune

National Registry of Exonerations

Today, the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law launched the first National Registry of Exonerations.  ExonerationRegistry.org represents the largest collection of such cases ever assembled and it will be continually updated.

The purpose of studying exonerations is to learn how to prevent and correct false convictions.

The Registry front page contains the report, Exonerations in the United States, 1989 – 2012.  You can also read an executive summary of the report.  The Registry contains a searchable, sortable database of exoneration.  You can view exonerations by state and by county.

News coverage of the National Registry of Exonerations in the next post.

Examining When Justice Goes Awry

That's the title of Gary Craig's column in today's Rochester Democrat & Chronicle of New York state.  Here's an extended excerpt:

Jonathan Gradess sees a certain logic in holding a conference on wrongful convictions in Monroe County.

“I like the idea that (the conference) is going to be in a jurisdiction that has been in the vanguard of mistakes,” said Gradess, who heads the New York Defenders Association. “It’s sort of like taking the death penalty to Texas. It’s taking wrongful convictions to Rochester.”

A statement that stings some in law enforcement but can’t be denied is that Monroe County has had its share of high-profile wrongful convictions.

Growing research into misidentifications by victims and false confessions by the accused show that wrongful arrests and convictions likely can be curbed. And on Friday, April 20, the Rochester Institute of Technology’s criminal justice and psychology departments will host a conference with the leading experts in these topics as well as others.

Among the speakers at the conference, titled “Justice Miscarried: Convicting the Innocent,” will be John Jay College psychology professor Saul Kassin, an expert in false confessions; Peter Neufeld, co-founder of the Innocence Project; John Jay College professor Jennifer Dysart, an expert in eyewitness identification; Steven Barnes, who spent 20 years in prison for a murder he didn’t commit; and Eugene Pigott Jr., an associate judge on New York’s highest court, the Court of Appeals.

“This conference will help people truly understand the peer-reviewed research that explains why — despite their best intentions — eyewitnesses so often misidentify innocent people as the perpetrators of crime,” said LaVerne McQuiller Williams, associate professor and head of RIT’s criminal justice department. “It will also address why innocent people falsely confess to having committed crimes and the threat that prosecutorial misconduct presents in convicting the innocent.”

The 2012 New York State Wrongful Convictions Conference will be held April 20.  Registration is free, but ends on April 12.

Also From Delaware

"Death sentence overturned," by Sean O'Sullivan is in today's Wilmington News Journal.  Here's the beginning of this lengthy report:

The second-longest-serving inmate on Delaware's death row may be free on bail as soon as next week.

At a brief hearing Tuesday that left prosecutors speechless, Superior Court Judge John A. Parkins Jr. overturned the conviction and death sentence of Jermaine Wright for the January 1991 slaying of liquor store clerk Phillip Seifert.

Parkins said he had "no confidence" in the evidence against Wright, despite a videotaped confession. He said he plans to hold a hearing next week that appears likely to result in Wright's release on bail.

Wright has been under sentence of death for 20 years. The only person who has been sitting on Delaware's death row longer is Robert Gattis, who is scheduled to die by lethal injection later this month.

When Parkins announced that he found Wright's conviction and sentence "constitutionally infirm," more than a dozen family and friends of Wright in the courtroom erupted in cheers before they were quickly quieted by bailiffs.

Wright shook hands and exchanged hugs with his attorneys Herbert Mondros and James Moreno.

Afterward, Moreno said they saw the judge's action as a total vindication for their client.

Wright's original trial counsel, Jack Willard, was also in court and spoke briefly to say that the case had kept him awake nights for 20 years. He praised Parkins for his ruling. "You know there is a God and God hates injustice," Willard told Parkins.

Prosecutors Greg Smith and Danielle Brennan were clearly stunned by Parkins' ruling and declined to comment as they left the court. Several hours later, the Delaware Attorney General's Office issued a one- sentence statement: "We are reviewing the court's opinion to determine the next step and will communicate our decision when it is made."

Thanks to Rachel Dromgoole for distributing.

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.:

-----

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.

-----

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.

Getting It Right

That's the title of a new widget from the Innocence Project and University of Virginia Law prof Brandon Garrett, author of the recently published, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

Here's what the IP has to say in announcing the widget:

The Innocence Project today launched a new multimedia resource on the central causes of wrongful convictions and proven reforms to prevent injustice. The new interactive widget, “Getting it Right,” is embeddable on any website and features videos, case studies and in-depth research on forensics, false confessions, eyewitness identification, informant testimony, defense representation and conduct by police and prosecutors.

The widget was produced in partnership with University of Virginia Law School Professor Brandon Garrett, whose 2011 book, “Convicting the Innocent,” has earned rave reviews and provides the most comprehensive analysis to date of the causes of wrongful convictions later overturned through DNA testing.

I'll add a link to the site in the left-column webroll, "Innocence Projects & Resources."

Earlier coverage of Brandon Garrett and his book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, begins at this link.

A Partial Step Toward Justice

That's the title of an editorial in today's Virginian-Pilot on yesterday's developments in the Norfolk Four case.

Derek Tice never should've been tried for - let alone convicted of - rape and murder. On Thursday, the prosecutor who put him in prison finally confirmed as much, telling the judge that he lacked the evidence to support rape and murder charges against Tice in the 1997 death of Michelle Moore-Bosko.

The admission was long overdue. For years, a growing number of attorneys, investigators and other officials have come to the disturbing conclusion that Tice and three other men - Danial Williams, Joseph Dick and Eric C. Wilson - were wrongfully convicted in the case.

And:

In 2009, then-Gov. Timothy M. Kaine cited those findings and others when he ordered that Tice, Williams and Dick be released from state prison. Wilson already had been released after serving 8-1/2 years.

But the conditional pardon didn't exonerate the Norfolk Four. Tice, like the others, has been on probation and required to register as a sex offender. He moved in with his parents in North Carolina and took a job washing windows on high-rise buildings. Williams wears an electronic monitoring bracelet and moved to Michigan, where he, too, lives with his parents.

Their legal struggles continued, with each filing appeals in state and federal courts to have their names cleared. In April, Tice won an appeal, and a federal court ordered prosecutors to decide whether to drop the charges or retry the case.

Which is what led prosecutor D.J. Hansen on Thursday to finally do what should've been done years ago: Ask that charges against Tice be dropped.

The judge obliged.

As welcome as the move was, more must be done. The other three - Williams, Dick and Wilson - remain dogged by convictions for crimes that they never committed. They are unable to move on with their lives, despite an overwhelming consensus that they should be able to do so.

The cases against each are virtually the same as the one against Tice. The outcome should be the same, too.

Te expanded AP report, "'Norfolk 4' member won't be put on trial again," by Larry O'Dell, is via CBS News.

"The dismissal of charges against Mr. Tice underscores his innocence and the grave injustice that was done to the Norfolk Four," said Dick's attorney, George Kendall. "If there is no case against Mr. Tice, then there can be no case against Mr. Dick, Mr. Williams or Mr. Wilson."

Tice's three co-defendants have state and federal appeals pending. Kendall said the state appeals focus on the actions of former Norfolk detective Robert Glenn Ford, who allegedly used threats and intimidation to extract false confessions from the men. Ford was convicted last year of extortion and lying to the FBI in a case unrelated to the Norfolk Four.

The dismissal of charges against Tice means he will no longer have to register as a sex offender and meet conditions of parole — requirements that the other three men still must fulfill because their convictions remain.

"It is now time for Mr. Tice to try to rebuild his life with this grave injustice behind him," said Tice's attorney, E. Desmond Hogan. "We all look forward to the day when Dan Williams, Joe Dick and Eric Wilson — the other innocent men of the Norfolk 4 — can likewise put this tragic chapter behind them."

Tice, 41, is taking classes at a community college in hopes of getting into nursing school and is working for a window cleaning service. He said it was daunting finding a job after his release from prison — 250 applications in three months resulted in no job interviews — but being on the sex offender registry has been even tougher.

"Anyone can look at it and say, 'Oh, he's a bad person.' Personally, to me that was very disheartening and hard to do," Tice said.

Thirty former FBI agents as well as some ex-prosecutors had lobbied to exonerate the Norfolk Four. Their cause also was championed by novelist John Grisham, who has homes in Virginia and Mississippi, and their story was featured in a PBS documentary, "The Confessions."

PBS Frontline has posted, "The Confessions: One of the "Norfolk Four" Cleared of Rape/Murder Charges."

Tice's complicated road to exoneration was profiled in our November 2010 film The Confessions, which investigated the problematic way Tice's case -- and the cases of three other men, a group known as the "Norfolk Four" -- were handled by Virginia's justice system. All four Navy men underwent long interrogations before breaking under pressure, admitting they took part in Moore-Bosko's violent death. It wasn't until 1999, after the Norfolk Four were incarcerated, that another inmate named Omar Ballard confessed that he committed the crime alone. Ballard's DNA matched evidence found at the scene of Moore-Bosko's death, while no physical evidence could connect the Norfolk Four to the crime.

"It's a victory for me, but there's still three other guys," Tice said upon hearing the news. The guys, Joe Dick Jr., Eric Wilson and Danial Williams, have all filed appeals to the Virginia Supreme Court after a lower court dismissed earlier petitions in March.

Due to a conditional pardon by then-Gov. Tim Kaine 2009, the three men are no longer in prison but still have convictions on their records, meaning they are ineligible for some kinds of employment and required to register as sex offenders.

Earlier coverage of the Norfolk Four case begins at the link.  Related posts are in the false confessions index

Breaking Norfolk Four News From Virginia

The Virginian-Pilot is reporting, "With charges dropped, Norfolk Four member free man."  It's by Louis Hansen.  Here's an extended excerpt:

In the same courthouse where he lost his freedom for raping and murdering a Navy wife in 1997, Derek Tice today was declared a free man.

Norfolk Circuit Court Judge Charles E. Poston accepted a special prosecutor’s request this morning to drop two felony charges against Tice. After years of legal appeals, political lobbying and widespread media attention, the former sailor has been cleared of the crime.

Special Prosecutor D.J. Hansen asked the judge to drop the charges due to insufficient evidence.

"It is over," Poston said.

At the end of the hearing, Tice smiled and hugged his family members. "It's a victory for me, but there's still three other guys," he said.

Tice is one of the former sailors known as the Norfolk Four, convicted in the rape and murder of Michelle Bosko in her Ocean View apartment. The men confessed to the crimes, were convicted and sent to prison. Tice, Danial Williams and Joseph Dick were convicted of murder and rape; Eric C. Wilson was convicted of rape. The men have appeals active in federal and state courts.

A fifth man, Omar Ballard, later confessed to committing the crime alone. Ballard’s DNA was the only match to the crime scene. He is serving a life prison sentence.

Shortly after the convictions, the Norfolk Four began a series of appeals claiming their innocent. Their lawyers argued that former Norfolk police detective Robert Glenn Ford forced false confessions from the men. Ford was later convicted of federal corruption charges not related to the case.

The initial AP post is, "Prosecutor dismisses charges against 'Norfolk 4' member Derek Tice," by Larry O'Dell.  It's via the Republic.

Prosecutors will not retry a former sailor whose conviction in the rape and murder of a Norfolk woman was overturned on appeal.

At a hearing Thursday in Norfolk Circuit Court, special prosecutor D.J. Hansen of Chesapeake dismissed charges against Derek Tice in the 1997 slaying of 18-year-old Michelle Moore-Bosko. Tice and three co-defendants, who became known as the "Norfolk Four," claimed they falsely confessed to the crime under pressure from police.

In 2009, then-Gov. Tim Kaine granted conditional pardons for the three sailors who were still in prison, but he left the convictions intact. Tice continued to fight his conviction and won, but prosecutors still had the option of retrying him.

Attorneys for Derek Tice have issued a news release,"Prosecutor Drops Charges Against Derek Tice, One of the Norfolk Four.  Attorneys Call on VA Officials to Vacate Convictions of All Four Innocent Navy Men."  The full release is below:

At a hearing in Norfolk Circuit Court today, D.J. Hansen, Deputy Commonwealth's Attorney, City of Chesapeake, dismissed the charges against Derek Tice, one of three innocent Navy men who served 11 years in prison for a rape-murder they did not commit.  (The fourth innocent sailor, Eric Wilson, served 8½ years after being convicted of the rape.)

Prosecutors rarely dismiss a criminal case, but the evidence is overwhelming that Mr. Tice and the three other men, Danial Williams, Joseph Dick, and Eric Wilson, were innocent of the crime for which they were wrongfully convicted.

“The dismissal of charges against Mr. Tice underscores his innocence and the grave injustice that was done to the Norfolk Four. If there is no case against Mr. Tice, then there can be no case against Mr. Dick, Mr. Williams or Mr. Wilson,” said George Kendall, attorney at Squire, Sanders & Dempsey who provides pro bono representation to Mr. Dick.

In 2009, then-Governor Tim Kaine granted conditional pardons for three of the Navy veterans but left their wrongful convictions intact. In 2010, Robert Glenn Ford, the lead detective in the Norfolk Four case whose coercive, unconstitutional interrogation tactics led to the conviction of the innocent men, was convicted of corruption, taking bribes, and lying to the FBI.

“The Norfolk Four, their families, and the citizens of the Commonwealth have waited far too long for justice to be served. Virginia authorities should concede that their convictions are invalid, dismiss the charges against each of them, and allow these innocent men to rebuild their lives,” said Don Salzman, attorney at Skadden, Arps, Slate, Meagher & Flom who provides pro bono representation to Mr. Williams.

The Norfolk Four are out of prison, but they are not free. The former sailors have trouble securing good jobs, live under harsh parole conditions, and must register as sex offenders, even though they received conditional pardons and are completely innocent.

Some of the harsh conditions include wearing an ankle bracelet and being subject to GPS monitoring 24 hours a day, not being able to visit family and friends who live near schools, and living under strict curfews.

Only one man, Omar Ballard, committed this crime. He confessed and stated he acted alone. He is serving a life sentence in prison. Only his DNA and confession matched the crime scene. DNA and other forensic evidence at the crime scene excluded Mr. Tice, Mr. Dick, Mr. Williams, and Mr. Wilson.

“We believe the Commonwealth has a duty to vacate the convictions of the Norfolk Four and finally correct this unimaginable injustice,” said Stephen Northup of Troutman Sanders who provides pro bono representation to Mr. Wilson.

Earlier coverage of the Norfolk Four case begins at the link.  Related posts are in the false confessions index

 

Dallas Morning News Editorial - The Lege

"A mixed bag of wins and losses in Austin on our priorities," is the title of an editorial in today's Dallas Morning News.

At the beginning of 2011, this newspaper identified six priority areas where we wanted leaders to “stand and deliver” solutions to stubborn problems. Here is our assessment of how lawmakers did in the regular legislative session that just ended in Austin.

And:

Getting it right on criminal justice

Give the Legislature high marks for adopting safeguards against wrongful convictions.

Shepherded by Sen. Rodney Ellis , D-Houston, and Rep. Pete Gallego, D-Alpine, the most badly needed reform sets standards for police agencies in conducting eyewitness lineups. Another allows defendants new post-conviction access to DNA evidence. Legislation by Sen. Wendy Davis, D-Fort Worth, sets a timeline for police agencies to have rape kits tested to try to solve cases. And one more bill extends compensation eligibility to Anthony Graves, who was railroaded and put on death row for a killing spree that took six lives; he was exonerated last year.

The governor should sign these bills.

Lawmakers leave important unfinished business, including reforms to record confessions of felony suspects and to ban the offer of leniency in exchange for accomplice testimony in a death penalty case. And at long last, lawmakers should create a special commission to study wrongful convictions and find ways to improve the system.

Earlier coverage of the Texas Legislature's 82nd Regular Session begins at the link. Related posts are in the Texas Legislature index.

The Regular Session eneded Monday.  Lawmakers are currently meeting in a Special Session.  The agenda is limited to items specified by the governor.

New Book

Convicting the Innocent: Where Criminal Prosecutions Go Wrong is the title of a new book University of Virginia Law prof Brandon Garrett. 

A news release, "U.Va. Law Professor Brandon Garrett's Book Examines Wrongful Conviction," announces the publication.

False confessions, invalid forensic analysis, eyewitness misidentifications and other systemic flaws in the criminal justice system contributed to the wrongful conviction of the first 250 people exonerated by DNA tests, University of Virginia law professor Brandon Garrett writes in "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," published this spring by Harvard University Press.

Garrett began by studying the original criminal trial records of the 250 people who were convicted of series crimes and later exonerated. "The goal was to see what patterns there are," he said.

In a way, it would have been a comfort if the wrongful convictions had resulted from idiosyncratic mistakes or even corruption, Garrett said. That would suggest that false convictions are exceedingly rare, as nearly all police officers, prosecutors and judges conscientiously seek to convict the guilty and free the innocent, he said.

"What I found, though, was that the errors that repeated over and over again across the 250 cases were the result of bad barrels, and not a few bad apples. They resulted from unsound but systemic practices that allowed well-intentioned people to contribute to convicting the innocent," he said.

Those practices included the use of suggestive eyewitness identification procedures, flawed forensic analysis, coercive interrogations, shoddy investigative practices, cognitive bias and poor lawyering, he said.

What was particularly haunting about the cases, Garrett said, was that at the time, before the DNA tests proved the convict's innocence, many of the prosecutions appeared uncannily strong. For example, some cases included false confessions in which innocent suspects seemingly supplied police with details of a crime that police claimed could only be known by the perpetrator. The false confessions were typically the result of long, undocumented interrogations in which investigators may have planted details of the crime with the suspect, he said.

One case studied in the book was that of Earl Washington. On Jan. 20, 1984, Washington – defended for 40 minutes by a lawyer who had never tried a death penalty case – was found guilty of rape and murder and sentenced to death. After nine years on Virginia's death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man.

As a young lawyer in New York, Garrett said he saw the reality of such cases as Washington's and the others he analyzed. After law school, he worked at a firm in which Johnny Cochran was a partner, as were Peter Neufeld and Barry Scheck, the founders of the Innocence Project, an advocacy group that works to overturn wrongful convictions.

While there, Garrett was involved in representing a young soldier who had been charged with the rape of an elderly woman. The young man had been in a minor traffic accident near the scene of the crime shortly after it occurred.

"Detectives brought him in and interrogated him over many hours," Garrett said. "Ultimately he confessed, falsely, thinking that if he just parroted what they demanded that he say, he could finally go home. Instead, he was convicted by a jury and he spent 10 years in prison. DNA testing eventually proved his innocence."

Garrett's new book is an extension of previous studies he has done on the 250 cases. He wrote a groundbreaking study, "Judging Innocence," on the appeals and post-conviction process in cases in which the defendants were later cleared by DNA evidence, and later examined forensic analysis and confessions in that group of the wrongfully convicted.

Garrett began thinking about writing a book after the National Academy of Sciences asked him about the role forensic analysis played in those cases. He realized the only way to know for sure was to study the original trial transcripts. So he gathered more than 200 of them, with research support from the Law School and a two-year grant from the Open Society Institute. With the help of a team of student research assistants, he began meticulously reviewing the trials and coding their features.

Garrett fears that the types of errors that contributed to the convictions – unreliable witness testimony, forensic errors, false confessions – are not exclusive to cases in which DNA samples are available.

"What I saw in these 250 cases gave me grave concerns about the accuracy of other criminal cases in which DNA testing can't give us the answers," he said.

The criminal justice system is slow to reform, in part because it is fragmented and made up of so many investigative agencies and court systems at the local, state and federal level, he said.

"You have to remember that just because you don't get so many DNA exonerations in recent cases, for a wonderful reason – DNA testing is now routine before trial – it doesn't mean that the same problems with forensics, with confessions, with eyewitnesses, or with the adversary process itself aren't still serious ones," he said. 

Fortunately, he said, policymakers are increasingly taking very seriously the lessons that can be learned from the high-profile wrongful convictions that have come to light. In the last chapter of his new book, Garrett describes a criminal procedure revolution, as jurisdictions have begun to gradually adopt improved eyewitness identification procedures, mandatory interrogation recording requirements, forensic science reforms, innocence commissions and improved criminal discovery practices, among others. 

In part because the data may be of interest to researchers and policymakers, Garrett has also made available resources related to the book on a website hosted by U.Va.'s Law School.

Garrett's law school web page has several resources, including data and material from the book.

Related posts are in the books index.

Rodney Ellis' Legislative Agenda - Preventing Wrongful Convictions

Today's Houston Chronicle reports, "Ellis works to halt wrongful convictions."  It's written by Bobby Cervantes.

In the decade since state lawmakers last addressed wrongful convictions, Texas has earned the distinction of having the highest number of exonerations based on DNA evidence in the nation.

At least 42 men from a dozen Texas counties have leveled successful DNA challenges to their convictions, according to the Innocence Project of Texas.

In light of that, Sen. Rodney Ellis, D-Houston, is hoping a fresh move toward criminal justice reform will elbow its way to the forefront in a session jammed with a massive budget shortfall, redistricting and a raft of contentious measures, such as voter ID and anti-illegal immigration legislation.

Ellis is proposing an "Innocence Protection Package," four bills aimed at decreasing the number of wrongful convictions in Texas. Rep. Pete Gallego, D-Alpine, is the package's sponsor in the House.

"I tried to pick things that I thought were very much in the mainstream of criminal justice reforms that shouldn't cost money, that will save money," Ellis said. "They've been well-vetted and (have) broad-based support."

State lawmakers in 2009 created a panel to examine the issue of wrongful convictions and propose reforms. After a year-long investigation, the 11-member panel of legislators, judges and legal groups last August recommended changes for the 82nd Legislature.

Ellis' bills include many of the panel's suggestions, including uniform procedures for eyewitness identification, requiring investigators to record interrogations in serious felonies, streamlining defendants' appeals for DNA testing, and reorganizing Texas' indigent defense task force.

The eyewitness ID and DNA testing bills passed the Senate last session, but stalled in the House.

In 85 percent of exoneration cases, mistaken eyewitness identification sealed the defendants' guilt, according to the Innocence Project of Texas. In many counties, no uniform or documented eyewitness policies exist, the group said.

Under Ellis' bill, law enforcement agencies would have to develop written procedures for using suspects' photographs in line-ups and conducting live line-ups.
GOP opposition unlikely

Rep. Jerry Madden, R-Plano, who served on the House Criminal Jurisprudence Committee last session, said he could not see a GOP effort to block Ellis' bills if they are in line with recommendations from the Texas Criminal Justice Integrity Unit, which Judge Barbara Hervey, of the Texas Court of Criminal Appeals, launched in 2008.

The unit includes Hervey, Ellis and reform advocates, including Jim Bethke, director of the Taskforce on Indigent Defense, and Barry Scheck, director of the New York-based Innocence Project.

"I have pretty good confidence that some of those things will move forward and would be passed," Madden said. "If they're different, they'd have to be looked at."

I believe that the legislation is actually from the recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions.  There is an overlap in the membership of that body, created by the last legislature, which issued its report late last year, and Judge Hervey's Criminal Justice Integrity Unit.

The Cole Panel Report and a volume of Research Details are available in Adobe .pdf format.  More on Tim Cole's wrongful conviction and posthumous exoneration  begins here.

Earlier coverage of the Task Force on Indigent Defense, Texas Criminal Justice Integrity Unit, and the Timothy Cole Advisory Panel on Wrongful Convictions, at the links.

The Ellis-Gallego legislation on eyewitness identiciation procedures is SB 121/HB 215.  The Ellis/Gallego legislation on electronic recording of custodial interrogations is SB 123/HB 219.  Senator Ellis' bill on post-conviction DNA testing is SB 122.  Rep. Gallego and Sen. John Whitmire have filed the campanion bills SB 317/HB 220, on post-conviction testing of forensic evidence.

Daily Kos on the Norfolk Four

Daily Kos features an excellent recap of the Norfolk Four case in the Criminal InJustice Kos post, "Confessions, Innocence and Abolition."

On Tuesday, November 9, PBS Frontline broadcast a new documentary "The Confessions," (produced by renowned filmmaker Ofra Bikel) which examines the case of the Norfolk Four,  four Navy men who were wrongfully convicted after being coerced into giving false confessions. The former sailors were freed from prison in 2009 after they were granted conditional pardons by then-Governor Timothy Kaine, but the fight continues through ongoing litigation to fully vacate their convictions.

Earlier coverage of the Norfolk Four, at the link.

Judge Sarokin on False Confessions - Norfolk Four, Tonight on Frontline

Retired Federal Judge H. Lee Sarokin posts, "Why Do Innocent People Confess to Crimes They Did Not Commit?," at Huffington Post.

The answer all too often is coercion, intimidation, deceit and trickery. All of those techniques were employed to obtain the conviction of four innocent sailors for the rape and murder of a woman in Norfolk, Virginia. Danial Williams after only 11 days of marriage was arrested and charged with the crime. After relentless questioning and threats for 11 hours, he confessed. When the confession did not fit the actual facts, he was again questioned and convinced to alter his confession to jibe with those facts.

Because Williams' DNA failed to match any at the crime scene, the police next interrogated his roommate, Joe Dick. Subjected to the same harassment, Dick likewise confessed. For reasons too complicated to recount here, a total of eight men were charged with the gang rape and murder of Michelle Bosko, including two other sailors, Eric Wilson and Derek Tice.

And:

In the 261 exonerations based upon DNA evidence, clear evidence of innocence, approximately 20 percent of the convictions set aside were based upon false confessions. There is no more powerful evidence in a criminal trial than a confession by the defendant himself. There is no greater injustice than when those confessions are obtained through threats and intimidation and result in the conviction of innocent persons.

A reminder that PBS Frontline tonight examines the Norfolk Four in, "The Confessions."  Earlier coverage begins here.

PBS Frontline to Examine Norfolk Four Case

The PBS documentary, which premiered this season with an examination of the Todd Willingham case, takes up another controversial case, that of the Norfolk Four in Virginia.

Tomorrow night's program is, "The Confessions."  Check your local PBS affiliate for the time in your locale.

Why would four innocent men confess to a brutal crime they didn’t commit? FRONTLINE producer Ofra Bikel (Innocence Lost, An Ordinary Crime) investigates the conviction of four Navy sailors for the rape and murder of a Norfolk, Va., woman in 1997. In interviews with the sailors, Bikel learns of some of the high-pressure police interrogation techniques -- including the threat of the death penalty, sleep deprivation, and intimidation -- that led each of the “Norfolk Four” to confess, despite a lack of evidence linking them to the crime. All four sailors are now out of prison -- one served his sentence and the other three were granted conditional pardons last summer -- but the men were not exonerated as felons or sex offenders. The case raises disturbing questions about the actions of the police and prosecutors, who relied on the sailors’ often contradictory confessions for their convictions, and disregarded DNA evidence that pointed to a lone assailant who would later confess to the crime himself while serving prison time for another rape.

On Saturday, the New York Times reported, "Officer’s Extortion Conviction Prompts Calls for Full Exoneration of ‘Norfolk Four’," by Sabrina Tavernise.

The recent conviction of a Virginia police officer supports the case for full exoneration of the “Norfolk Four,” former sailors convicted of rape and murder, who received conditional pardons from Virginia’s governor last year, lawyers for the men said.

In legal briefs filed in Virginia this week, the lawyers argued that last week’s conviction of Robert Glenn Ford, a police officer in Norfolk, Va., and the main investigator in the case of the Norfolk Four, raises new evidence showing the men were wrongly convicted. The men received partial pardons in 2009, but their convictions still stand, and the lawyers argue that they should now be overturned.

The men were convicted in the 1997 murder case of Michelle Moore-Bosko in Norfolk. None of the four sailors had prior criminal records, and the case against them was based almost entirely on confessions they gave to Mr. Ford, who pursued the investigation despite DNA evidence linking the crime to another man, Omar Ballard.

But Mr. Ford’s conviction — for extortion and lying to the Federal Bureau of Investigation — covered a period that began in 2003, long after the Norfolk Four were convicted, and in a letter last month, Judge Everett A. Martin Jr., expressed skepticism that the conviction was relevant for the Norfolk Four case.

But Donald P. Salzman, a lawyer for Danial J. Williams, one of the former sailors, argued in a response filed this week that Mr. Ford’s indictment and conviction was new information that substantially changed the facts of his client’s case.

Specifically, Mr. Salzman said, a source has come forward asserting that Mr. Ford had stated he believed the men were not guilty of the crime. But in Mr. Salzman’s view, Mr. Ford did not back off the case because he was trying to protect his position. Earlier in his career, Mr. Salzman said, Mr. Ford was caught in what prosecutors said was an effort to elicit false confessions from juveniles, and Mr. Salzman argued that another instance could have endangered his job.

“A detective who was the driving force behind these convictions has now been convicted for manipulating the justice system,” said Mr. Salzman, of the law firm Skadden, Arps, Slate, Meagher & Flom. “He had a motive to continue to pursue these cases.”

Margaret Edds posts, "The crumbling case against the 'Norfolk Four'," the Voices blog of the Washington Post.

A “PBS Frontline” documentary on the Norfolk Four case, scheduled to air Tuesday, makes it chillingly clear that the concept of multiple false confessions is no more preposterous than Ford’s and the prosecutors’ ever-shifting theory of the case.

Initially satisfied with one confession, police backtracked after the first DNA test failed to match evidence. Over time, faced with one disappointing DNA result after another, Ford extracted more and more confessions and more and more names of purported co-conspirators. Eventually, seven men, including two with solid alibis, stood implicated.

No evidence existed against any of them, save the confessions.

Then, out of the blue, an eighth man serving time for rape, also confessed. Omar Ballard, who did not know the others, was the only suspect without ties to the armed services, the only one with a history of attacking women, the only one who knew precisely how the crime occurred, and the only one whose DNA fit.

As he tells “Frontline”: “I alone committed the murders. . . . No one ever had anything to say or do with the case besides me.”

By the time Ballard appeared, police and prosecutors were too invested to admit their mistake. They simply inserted Ballard into a ludicrous, eight-man conspiracy. Aside from Ballard, now serving a life sentence, the three men conditionally pardoned by Kaine each served about 11 years of life sentences; the fourth man, Wilson, was convicted of rape only and had completed an 8½-year sentence at the time of the partial pardons.

As registered sex offenders, all four live in a hellish limbo, dictated by the laws of their individual states. In Michigan, Williams wears an electronic ankle bracelet 24 hours a day. He cannot even work in the yard without permission. In Texas, Wilson was denied admission to a school for electricians and cannot adopt his wife’s son because of his criminal record. In North Carolina, Tice washes windows for a living, his dream of becoming a nurse forever barred. And in Maryland, Dick fears taking his parents’ dogs for a walk because a school backs up to their property.

The Virginian-Pilot reports, "'Frontline' show dissects case of the Norfolk Four," by Tim McGlone.

Frontline producers also obtained, for the first time publicly, an interview with Ballard. He told Frontline that police pressured him to say the other men participated in the crime with him, a statement that he said was not true.

"It was made clear from the jump that unless I said somebody else was with me, that it wasn't going to be the truth," Ballard said. "The only truth they wanted to hear (was) that I did it with someone else."

The recent corruption conviction in federal court here of retired Norfolk Detective Robert Glenn Ford is also part of the show.

The Norfolk Four lawyers said the guilty verdict in the Ford case is directly relevant to the innocence claims the men have pending.

Federal authorities here have said they do not believe there is a link between Ford's corruption case and his history of obtaining a number of false confessions.

The Norfolk Four case has already been written about in a book called "The Wrong Guys." Popular author John Grisham is also working on a screenplay about the case.

Earlier coverage of the Norfolk Four, begins at the link; related posts are in the documentary and false confessions index.

False Confessions

"Confessing to Crimes, but Innocent," is the title of an article in today's New York Times, highlighting scholarship by University of Virginia Law prof Brandon Garrett.  Here's the beginning:

Eddie Lowery lost 10 years of his life for a crime he did not commit. There was no physical evidence at his trial for rape, but one overwhelming factor put him away: he confessed.

At trial, the jury heard details that prosecutors insisted only the rapist could have known, including the fact that the rapist hit the 75-year-old victim in the head with the handle of a silver table knife he found in the house. DNA evidence would later show that another man committed the crime. But that vindication would come only years after Mr. Lowery had served his sentence and was paroled in 1991.

“I beat myself up a lot” about having confessed, Mr. Lowery said in a recent interview. “I thought I was the only dummy who did that.”

But more than 40 others have given confessions since 1976 that DNA evidence later showed were false, according to records compiled by Brandon L. Garrett, a professor at the University of Virginia School of Law. Experts have long known that some kinds of people — including the mentally impaired, the mentally ill, the young and the easily led — are the likeliest to be induced to confess. There are also people like Mr. Lowery, who says he was just pressed beyond endurance by persistent interrogators.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”

The notion that such detailed confessions might be deemed voluntary because the defendants were not beaten or coerced suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld said. “They should look at whether they are reliable.”

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

Of the exonerated defendants in the Garrett study, 26 — more than half — were “mentally disabled,” under 18 at the time or both. Most were subjected to lengthy, high-pressure interrogations, and none had a lawyer present. Thirteen of them were taken to the crime scene.

Mr. Lowery’s case shows how contamination occurs. He had come under suspicion, he now believes, because he had been partying and ran his car into a parked car the night of the rape, generating a police report. Officers grilled him for more than seven hours, insisting from the start that he had committed the crime.

As linked above, "The Substance of False Confessions," from the Stanford Law Review is available in Adobe .pdf format.

Related posts are in the false confessions index

The Porter Exoneration in Harris County

Allan Turner writes, "From life in prison to life of comfort?" for the Houston Chronicle.

Once facing the prospect of spending his life in prison, 39-year-old Allen Wayne Porter now faces the possibility of spending his remaining years as a wealthy man thanks to a state program that reimburses inmates for time wrongfully spent in prison.

Porter's lawyer, Casey Garrett, said Monday that her client, a convicted sexual assailant who last week won the first round of his "actual innocence" case in a Houston courtroom, hasn't given any thought to the money he could receive for the 19 years he spent behind bars.

"It's not an issue until everything is final," she said. "He's waiting for the ruling to be official."

And:

If Porter elects to pursue reparations from the state, he could be eligible for payments through the Tim Cole Act passed by the Legislature in 2007.

The reparations program, named for a Texas Tech student who died while wrongfully imprisoned for sexual assault, is administered by the state comptroller's office.

Comptroller's spokesman R.J. DeSilva said Porter will have to provide a court order verifying his innocence and prison documents confirming time served. After a successful agency review, he should be eligible to receive payments.

Sixty-two wrongfully convicted former prisoners now receive payments in the program, DeSilva said.

Related posts are in the exoneration index.

False Confessions

"What causes people to give false confessions?" is the title of a Chicago Tribune report by Lisa Black and Steve Mills, Tribune reporters.  It appeared in the Sunday edition.

After 14 hours of interrogation in a small, windowless room, Kevin Fox simply gave up. He knew he hadn't sexually assaulted or murdered his 3-year-old daughter, but police had rejected his requests for a lawyer and told him they would arrange for inmates to rape him in jail, according to court records.

The distraught father later testified that detectives also screamed at him, showed him a picture of his daughter, bound and gagged with duct tape, and told him that his wife was planning to divorce him, the records show.

Fox finally agreed to a detective's hypothetical account of how his daughter, Riley, died in an accident, thinking investigators would realize that the phony details didn't match up with the evidence, his lawyer said. Instead, he remained in Will County jail for 8 months, released only after DNA evidence excluded him as a suspect. In May, another man was charged with the crime.

And:

Why would anyone confess to such horrific crimes — especially involving their own child or loved one — if they didn't commit them? Seemingly unfathomable, it happens far more often than most people believe, experts say.

"The interrogation itself is stressful enough to get innocent people to confess," said Saul Kassin, a psychology professor at John Jay College of Criminal Justice in New York. "But add to that a layer of grief and shock and perhaps even some guilt — 'I should have been there' — and then that the parent is trying like hell to be cooperative because they want the murder of their child solved."

Trauma, lack of sleep and highly manipulative interrogation techniques are a few factors that can cause the most level-headed people to falsely confess to a crime — even one as heinous as a child's murder, according to experts. Researchers believe that false confessions lead to about 25 percent of wrongful convictions, a statistic underscored by the increasingly sophisticated use of DNA evidence.

Over the past two decades, 254 people have been exonerated by DNA evidence, including 17 who were on death row, according to the Innocence Project, a nonprofit legal clinic based at Yeshiva University in New York.

"We know that for certain kinds of people, particularly those with mental illness and mental deficiencies, but other people as well, the psychological intensity of an interrogation can prove absolutely as torturous as physical pain," said Lawrence Marshall, a Stanford University law professor who co-founded Northwestern University's Center on Wrongful Convictions.

And:

Dr. Robert Galatzer-Levy, a psychiatrist on the faculty of the University of Chicago and the Chicago Institute for Psychoanalysis, said interrogations are designed "not simply to get information," as the police often portray them. Instead, he said, interrogations are "well-thought-through psychological manipulations to get a confession."

Police do that by first developing a rapport with suspects. They then give them their Miranda rights, though in such a way that suspects feel they are being uncooperative if they invoke them. Finally, he said, police confront a suspect, saying they know he committed the crime but offering a way out that acknowledges guilt but to something less heinous.

The stress that comes with the death of a child, as in the cases of Hobbs and Fox, makes it all the worse. In such cases, experts say, it is natural for the police to focus their attention first on the child's parents or siblings. Many murders of children, it turns out, are committed by family members.

"People all say, 'I'd never confess. Not in a million years,'" said Galatzer-Levy. "But it turns out that people who are vigorously interrogated will confess — even if they're innocent. The terrified but rational person might give police a story just to end the interrogation, or because they think it might improve their situation."

Richard Leo of the University of San Francisco law school said no research has been done on whether the death of a family member makes a suspect more susceptible to interrogation. But, he said, "it kind of stands to reason. They're grief-stricken. They're distressed. They've often not gotten a lot of sleep. Those are all conditions that contribute to false confessions."

In the book "True Stories of False Confessions," Rob Warden and Steven A. Drizin of the Center on Wrongful Convictions write that reasons for false confessions range from desperation suspects feel as they endure lengthy interrogations to police exploiting suspects' mental handicaps.

Related posts are in the false confessions index

D’Alemberte Petitions for Innocence Commission in Florida

That's the title of a Florida News Service report from the Monday edition of the Jacksonville Observer.  LINK

Former American Bar Association President and prominent Tallahassee lawyer Sandy D’Alemberte filed a petition with the Florida Supreme Court Friday asking it to establish a commission to investigate how wrongful convictions occur.

D’Alemberte, a former Florida State University President who still teaches at the law school, wants the high court to establish have the panel examine cases where people were wrongfully accused and convicted to see what goes wrong in those cases and how the state can improve.

The system, he said, unfortunately fails and sometimes the wrong people get sent to prison.

“They also leave guilty people out on the streets and we destroy families,” he said.

His ideal commission is modeled after one that was established in North Carolina in 2002. The North Carolina commission includes judges, representatives of the Governor’s office, defense attorneys, law enforcement representatives, prosecutors, law professors and victim advocates. It also included a journalism professor and two general interest representatives.

In addition to North Carolina, California, Connecticut, Illinois, New York, Pennsylvania, Texas and Wisconsin also have similar commissions.

But even if the court does like the idea, he could run into a money issue. Funding for the court system, provided mostly by the state Legislature, has been low in recent years, meaning layoffs and cuts throughout the system as a whole. Finding money to establish a commission could be tricky.

“I guess my answer is a question,” D’Alemberte said. “Can we afford to neglect the idea that we’re convicting innocent people? Because, it’s a pretty expensive process to go through these wrongful convictions.”

Florida, like other states, has had high profile cases where people were wrongfully convicted of serious crimes.

Juan Melendez, a Puerto Rican immigrant, has been crisscrossing the country since 2002 after he was freed from a Florida prison where he spent 17 years, serving a sentence for a murder he didn’t commit. He was in Tallahassee in September for a forum at Florida State Law School talking up an ABA report suggesting ways to address wrongful convictions – particularly in death penalty cases –- in Florida. One of the suggestions was the establishment of a commission to investigate wrongful convictions.

"Petition calls for creation of Florida innocence review board," is the title of John Frank's report for the Miami Herald.

Former Florida State University president Talbot ``Sandy'' D'Alemberte filed a petition with the state Supreme Court on Friday asking for a commission to investigate wrongful convictions.

``I think it's just strange to see all the recent exonerations and not try to learn something about the mistakes we've been making,'' said D'Alemberte, who also is a former state lawmaker and former president of the American Bar Association.

The 18-page petition, signed by nearly 70 lawyers including some former state Supreme Court justices, calls for creating the Florida Actual Innocence Commission modeled off a system in North Carolina by the same name.

Such an idea is not new, but D'Alemberte cites the recent cases of Alan Crotzer, Wilton Dedge and nine others who were exonerated after being imprisoned. It also came a day after the Florida Innocence Project announced it has new evidence to clear a Polk County man, James Bain.

D'Alemberte, a prominent Tallahassee attorney, had harsh words for the Florida Bar Association, who he feels needs to do more to police the lawyers involved in these cases.

``I am shocked the Bar hasn't opened ethical inquiries into these recent cases,'' he said. ``I'm surprised they haven't shown more interest in the way the criminal justice system works.''

Rules allow a group of 50 or more attorneys to petition the court for a rule-making procedure and D'Alemberte said this commission would mirror similar ones that looked at the issues of racial and gender bias in the court system.

The AP report, "Fla. panel sought to study wrongful convictions," by Bill Kaczor is via the Miami Herald.

Sixty-eight lawyers on Friday asked the state Supreme Court to set up a panel to determine why at least 11 innocent people have been wrongfully convicted of crimes including rape and murder in recent years and recommend ways to avoid that happening in the future.

Former Florida State University President Talbot "Sandy" D'Alemberte filed the petition that includes three former state Supreme Court justices a day after an advocacy group announced DNA testing had cleared James Bain for the rape of a 9-year-old boy near Lake Wales.

Bain spent 35 years in prison - the longest stretch behind bars of 245 people who've been exonerated by DNA nationally.

"Wrongful conviction harms society in a number of ways," D'Alemberte wrote. "The innocent citizen suffers loss of income, damage to reputation, stress on family members, and exposure to brutal prison conditions."

It also means innocent people are imprisoned at taxpayer expense while "the actual criminal goes free and remains a danger to society," D'Alemberte wrote.

The creation of such a panel was one of several recommendations in an 2006 American Bar Association study of capital punishment in Florida. The Supreme Court in October clarified standard jury instructions for death penalty cases in response to another recommendation in that study, which found widespread confusion among jurors.

Lawyers signing the petition included former Justices Harry Lee Anstead, Arthur England and Gerald Kogan and former American Bar Association President Martha Barnett.

D'Alemberte, also a former American Bar Association president, served on the National Advisory Board of the ABA project. It also examined the death penalty in Alabama, Arizona, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee.

The proposal for a Florida Actual Innocence Commission is patterned after a similar panel in North Carolina, one of several states that have taken similar steps including California, Connecticut, Illinois, Pennsylvania, Texas and Wisconsin.

The North Carolina commission has made recommendations dealing with mistaken witness identification, improper collection, labeling and preservation of evidence, false confessions, inadequate defense and errors by police and prosecutors.

Earlier coverage from Florida begins with this post.

Max Soffar

His has been a long and twisted tale, with a career on Texas death row.  Soffar has always maintained his innocence.  He was originally convicted in 1981of killing three people during a bowling alley robbery.  His court appointed lawyer was the notorious Joe Cannon, known as the sleeping lawyer of Harris County courts.

In 2004, the U.S. Court of Appeals for the Fifth Circuit overturned the conviction, ruling Cannon had been ineffective.  Soffar was retried in 2006, and again convicted and sentenced to death.  His defense attorney was barred from presenting some evidence by the trial judge.

On Wednesday, the Texas Court of Criminal Appeals upheld the conviction and death sentence in the direct appeal of the trial.  The per curiam ruling is here, in Adobe .pdf format.

The matter has not attracted Texas media attention, but today's Tennessean reports, "Paul Reid's role in crime not an issue in Texas," by Kate Howard.

The conviction of a Texas man for a triple murder was upheld Wednesday despite questions about whether Nashville death row inmate Paul Reid was involved.

Max Soffar was convicted in 1981 for killing three people and wounding a fourth during a robbery at a bowling alley in Houston and given the death penalty.

An associate of Reid, who has been sentenced to seven death sentences for murders in Tennessee, wrote to Soffar's attorney in 2000 saying that Reid had confessed to him that he shot four people in a Houston bowling alley on U.S. Highway 290 before the pair went on a crime spree.

Soffar's conviction was overturned by a federal court, but he was re-tried and convicted again in 2006.

No evidence was introduced at that trial about the allegation that Reid had confessed, and his attorneys challenged that decision to the Texas Court of Appeals along with several other issues, including mental health issues and whether the confession was coerced.

The appeals court rejected all of Soffar's claims and upheld his sentence.

Reid was scheduled to be executed in 2006, but a federal judge blocked his execution and ordered a competency hearing.

The ACLU issued a news release, "Texas Appeals Court Rejects Appeal Of Innocent Man On Death Row For 28 Years.  Death Sentence Upheld Despite Overwelming Evidence Pointing To Innocence," Wednesday afternoon, following the issuance of the CCA ruling.  The release is available via Common Dreams.

Max Soffar, whose mental illness left him particularly vulnerable to giving a false confession, stands convicted and sentenced to death for allegedly killing four victims during an armed robbery in a Houston bowling alley in 1980. Soffar appealed on the grounds that the trial court in 2006 prevented him from proving his innocence to the jury.   

"Once again, this case demonstrates that serious error riddles the criminal justice system," said Brian Stull, staff attorney with the ACLU Capital Punishment Project. "When the state seeks a person's death as punishment, we must demand a process that produces accurate and reliable results. When an innocent man sits on death row for 28 years having never received a fair trial, when juries are not allowed to hear the evidence, and when appeals courts do not intervene to fix these problems, no one can trust the process." 

And:

In today's opinion, the court ruled that the false confession given by Soffar should stand, and that his constitutional rights were not violated when his 2006 trial court judge refused to allow him to show that the only correct details in his false confession were not the result of his involvement in the crime but instead had been obtained through widely disseminated media reports. The prosecution claimed, in an argument to the jury, that these details — although broadcast throughout Texas — could only have been known by the person responsible for the crime. Making an argument that not even the prosecutor made on appeal, the Texas Court of Criminal Appeals said in today's decision that even if the trial court judge erred by refusing to allow Soffar to utilize the media reports as part of his defense, the error was "harmless." 

False confessions are among the leading causes of wrongful convictions, and evidence shows that people like Soffar who are impulsive, have low intelligence, low self esteem and are prone to fantasy and disassociation are the most likely candidates for false confessions.
 
The appeals court today also rejected Soffar's argument that the trial judge erred by refusing to admit evidence that another man confessed to committing the murders, and that this man committed a series of highly similar robbery-murders in Tennessee. The man, Paul Reid, formerly of Houston, now awaits execution on Tennessee's death row. A photograph of Reid, taken in Houston nine days after the crime, strongly resembles the composite sketch the police prepared based on the description of the sole witness to the crime. 

Soffar's false confession also contradicts the account of the sole surviving witness and other reliable evidence.

Soffar will continue to push his innocence in another phase of post-conviction review.  In Texas, a death penalty case automatically receives a direct appeal to the Texas Court of Criminal Appeals.  The direct appeal is limited to issues raised through the trial transcript; was an objection properly ruled on, was something improper said, and other issues found in the words of the trial.  The other phase of post-conviction review inolves the filing of a habeas corpus petition, in which other issues are considered.

One of Soffar's steadfast supporters in Texas entertainer and sometimes politician Kinky Friedman.  Friedman has announced his intention to run for governor in the March 2010 Democratic primary.  He wrote, "Max Soffar: A Jew on death row," which appeared in the February 2, 2005 issue of the Jerusalem Post.  Here's an excerpt:

I've seen Cool Hand Luke and The Green Mile, but I'm not a prison reform activist. I'd never interviewed anyone on death row until the middle of January, when I picked up a telephone and looked through the clear plastic divider at the haunting reflection of my own humanity in the eyes of Max Soffar.

Max doesn't have a lot of time and neither do I, so I'll try to keep it brief and to the point.

"I'm not a murderer," he told me. "I want people to know that I'm not a murderer. That means more to me than anything. It means more to me than freedom."

On February 2, Max is scheduled to be re-arraigned in Houston before District Judge Mary Lou Keel for the murders of three youths at a Houston bowling alley in 1980. Although Max has been granted a new trial, his release from prison is far from a certainty. His defense team is concerned about critical evidence destroyed by the District Attorney's office and the difficulty of finding witnesses after 23 years, and his lawyers estimate the costs of defending him at a new trial at $250,000 or more.

I'm sure we'll be hearing more about Max Soffar in the future.

The Yogurt Shop Case: Injustice For All

That's the title of an Austin American-Statesman editorial.  LINK  It appeared in the Sunday edition.

When it comes to the yogurt shop slayings, calling our criminal justice system a system does great injustice to systems that actually work.

The case has gone on longer than any of the four victims lived.

For emphasis, let's put it this way: The parents of the four slain girls now have had to suffer through the botched investigation into their daughters' deaths longer than they were able to enjoy their daughter's lives.

And there still is no resolution.

After almost 18 years, several trials and untabulated costs, we again have little more than suspects in the horror that began on Dec. 6, 1991, when Austin Police Officer Troy Gay reported the fire that led to the discovery of the bodies of Jennifer Harbison, 17, her sister Sarah, 15, and their friends Eliza Thomas, 17, and Amy Ayers, 13, at the I Can't Believe It's Yogurt shop.

We can't believe this is justice for anybody involved, including the former defendants, who, as a result of the latest courtroom maneuvering, are back to being mere suspects.

The latest depressing twist in the case came Wednesday when Travis County District Attorney Rosemary Lehmberg, faced with little choice, dismissed the charges against Robert Springsteen IV, 34, and Michael Scott, 35, as part of a plan to retry them.

Springsteen, convicted in 2001, was sentenced to death, and Scott, convicted in 2002, was sentenced to life in prison. Both had confessed to the murders, but lawyers for both argued at trial that the confessions were coerced. Four years after the Springsteen conviction, his death sentence was changed to life in prison when the U.S. Supreme Court ruled it unconstitutional to execute people who were juveniles at the time of the offense.

Everything blew up for the prosecution when the Texas Court of Criminal Appeals threw out the convictions because the confessions of each defendant improperly were used at each other's trial.

And:

Fault? It has to all default to investigators who overzealously sought confessions and prosecutors who, to date, have been unable to successfully make the case.

Victims? Everybody for whom the system has not worked. Unfortunately, that's everybody involved, from the slain young girls to the defendants and suspects. The case is far from closed, and all involved are far from closure — if indeed such is possible in a case this horrific.

The victim list also includes everybody who counts on a functional criminal justice system. You can see one of those people in your bathroom mirror.

Earlier coverage begins with this post.

Charges Dismissed in Yogurt Shop Case

That's the title of a post at the Austin American-Statesman Austin Legal blog written by Steven Kreytak.  LINK

Travis County prosecutors moved to dismiss the murder indictments against the two remaining defendants in 1991 yogurt shop murders after announcing in court today that they are still looking for the person whose DNA was found last year in one of the four teenage victims.

Assistant District Attorney Efrain De La Fuente said in court that the decision came because state District Judge Mike Lynch has ordered that a continuance in the case to conduct further DNA testing would not be considered.

“We are still testing,” he said.

The packed courtroom was quiet after Lynch ordered the dismissals. Defendants Michael Scott and Robert Springsteen, who were once both convicted in the case, hugged their lawyers and supporters in court.

Outside, lawyers for the defendants called on authorities to find the real killers.

“Those men that did this back in 1991, they left DNA in there,” said Scott lawyer Carlos Garcia. .”And I don’t know if those guys are still alive …but we have your DNA and sooner or later we are going to match your face to it.”

Springsteen lawyer Joe James Sawyer said that he and his client believe that it is the families of the slain girls who have suffered the most.

“We should reserve our sympathy for the families of those girls,” Sawyer said. “That is paramount.”

Scott, gripping his wife’s hand, was reserved outside court.

“This has been a long time in coming,” he said. “I’m happy to be here.”

At a press conference following the hearing, Travis County District Attorney Rosemary Lehmberg issued a statement that said in part: “Make no mistake, this is a difficult decision and one I would rather not have to make. I believe it is the best legal and strategic course to take and is the one that leaves us in the best possible posture to ultimately retry both Springsteen and Scott.”

And:

In June, Lynch released the men from jail on their own recognizance after prosecutors said they wanted more time to identify the source of male DNA found in vaginal swabs taken from victim Amy Ayers, 13. The DNA did not match either defendant or previous co-defendants.

Prosecutors have not yet determined whose DNA that is, according to defense lawyers who have been kept apprised of the testing.

In a strongly worded order in written in August, Lynch said that the lawyers in the case must announce they are ready for trial today. “Extreme circumstances would be required to obtain a continuance,” he wrote.

If either party announces they are ready for trial and later asks for more time, Lynch wrote, “it would be a violation of this order” if there was no new reason for the continuance request.

Today’s hearing is the latest critical juncture for a case that has taken many turns since Dec. 6, 1991, when the bodies of Ayers, sisters Sarah and Jennifer Harbison, 17 and 15, and Eliza Thomas were found, each bound with their own clothing and shot in the head, at the I Can’t Believe It’s Yogurt Shop on West Anderson Lane.

In 1999, Scott and Springsteen confessed. Their lawyers later said those confessions were coerced under psychological pressure and lengthy interviews by police. Both were convicted but those convictions were overturned when the Texas Court of Criminal Appeals found that Scott’s confession was improperly used at Springsteen’s trial and Springsteen’s confession was improperly used at Scott’s trial.

Earlier coverage begins with this post.

An Update on Gary Gauger

His case was featured in the play, "The Exonerated."  "Jury rules detectives did not frame Gauger," is Jillian Duchnowski's report in today's Northwest Herald in Illinois.

Both sides in Gary Gauger’s civil trial agreed that he sat on death row while innocent of slashing his parents’ throats, but jurors did not find that three sheriff’s detectives framed him.

Eleven jurors found in favor of Undersheriff Gene Lowery and retired Detectives Beverly Hendle and Chris Pandre after deliberating about five hours Thursday. The verdict denied Gauger of the $20 million or more he was seeking for post-traumatic stress disorder and for the 3½ years he spent behind bars, including nine months on death row.

Gauger, 57, sat staring straight ahead as Judge Maureen McIntyre read the jury’s verdict after a trial of almost two weeks. Jurors also found that the three detectives had probable cause to arrest him in April 2003 and had not acted with malice nor conspired against him.

Lowery said the verdict restored his and his former colleague’s honor.

“I don’t think there’s anything to celebrate but what we’ve personally gained,” Lowery said.

“... We were accused of wrongdoing, and we were just doing our jobs” Lowery said.

Gauger’s attorney, Matthew Crowl, said he and his client respected the verdict but were “very disappointed.” Crowl said they planned to appeal.

“We felt the evidence was strong, but we understand it’s a high burden to meet [in] a malicious prosecution case,” Crowl said.

Gauger was sentenced to die by lethal injection after a McHenry County jury convicted him late in 1993 of his elderly parents’ grisly murders. Ultimately that conviction was overturned, former Gov. George Ryan pardoned him, and two motorcycle gang members were convicted of murdering Ruth and Morris Gauger as part of a federal racketeering case.

Earlier coverage of Gauger's civil suit is here.

Partial Justice for the Norfolk Four

That's the title of a New York Times editorial on the partial clemency granted by Virginia Governor Tim Kaine last week.  It appeared in the Monday edition.  LINK

Gov. Tim Kaine of Virginia did nearly the right thing this month when he gave conditional pardons to three members of the “Norfolk Four.” Given the overwhelming evidence that these sailors were wrongly convicted of rape and murder, it is welcome news that all are now free. But because Mr. Kaine did not grant a full pardon, they will continue to be stigmatized.

Derek E. Tice, Joseph J. Dick Jr., Danial J. Williams and Eric C. Wilson were convicted in the 1997 rape and murder of Michelle Moore-Bosko in Norfolk. It was a horrific crime, but it seems clear that it was committed by someone else. Omar Ballard, who knew the victim, has confessed. His D.N.A. matched evidence from the crime scene, and he has said that he acted alone.

The case against the four sailors, none of whom had prior criminal records, was based almost entirely on their confessions, which followed high-pressure interrogations. Legal experts say that false confessions are surprisingly common, especially when suspects are harshly questioned and, as in this case, threatened with the death penalty if they do not confess.

One of the four, Mr. Wilson, who was not convicted of murder, served his sentence and was released in 2005. The three others were given life sentences. Governor Kaine declared that they had raised “substantial doubts” about their convictions and the justification for continuing to imprison them. He reduced their sentences to time served. But he denied all four the absolute pardons they sought, saying they had not “conclusively established” their innocence.

At a time when politicians do everything they can to show they are tough on crime, Mr. Kaine deserves credit for releasing them. But without being fully cleared, these men are likely to have considerable trouble returning to normal lives. They could have trouble finding jobs. And they may spend years on parole, the requirements of which are often so elaborate that even well-meaning parolees end up in violation and back in jail. They will also be subject to sex-offender registration requirements.

The August 24 issue of the New Yorker carries Jeffrey Toobin's, "The Wrong Guys."  Here's an extended excerpt:

Richard Leo had never heard of the Norfolk Four when he received an interview request on the subject from a television producer in 2001. Leo, a law professor at the University of San Francisco, is an expert on false confessions—the puzzling phenomenon of suspects who admit to crimes they did not commit. Troubled by what he heard from the producer, Leo wound up devoting much of the next seven years of his life to the case.

The story began on July 8, 1997, when Billy Bosko, a nineteen-year-old Navy sailor, returned from an assignment to find his eighteen-year-old wife, Michelle, stabbed and strangled to death on the floor of the apartment they shared in Norfolk, Virginia. An autopsy showed that Michelle had also been raped. Police immediately brought in a neighbor, Danial Williams, also a Navy man, for questioning, and after a nine-hour interrogation he confessed to the crimes. Three others from the Navy—Joseph Dick, Jr., Derek Tice, and Eric Wilson—were subjected to separate, lengthy interrogations by the same detective, and each man confessed. (Wilson admitted only to raping Michelle Bosko, not to killing her.) The abundant DNA evidence at the crime scene, including semen and the blood of Michelle’s presumed attacker, which had been found under her fingernails, pointed to another man, Omar Ballard, an acquaintance of the victim who had a long history of violence against women. Ballard, too, confessed—and said that he had acted alone. (None of the others had criminal records.)

In light of the confessions, and despite the lack of physical evidence tying the four Navy men to the crime, the police charged them in a murder conspiracy. Faced with the prospect of the death penalty if they went to trial, Williams and Dick pleaded guilty; Tice was convicted in a trial, and all three were sentenced to life in prison without the possibility of parole. (Wilson received a lesser sentence.) To Leo, the confessions by all the men except Ballard seemed clearly to be false. “They were coerced, yelled at, told they failed a polygraph when they didn’t—and, most important, threatened with the death penalty when they didn’t confess,” he said. “The forensic evidence all pointed to a single attacker.” Leo linked the defendants up with the Innocence Project, which helped them find pro-bono counsel, and then he set out, with a journalist friend, Tom Wells, to write a book about the case.

Progress came glacially. All four men had recanted their confessions, but there were few options for an appeal to a higher court. The lawyers made voluminous submissions to the governor’s office for a pardon, but Mark Warner and his successor, Tim Kaine, showed little interest. Leo and Wells found a publisher for what became “The Wrong Guys,” but still the Norfolk Four languished in prison.

The turning point may have come in 2008, when Leo, through a mutual friend, slipped the unpublished manuscript to John Grisham, who lives in Charlottesville. “They put together a very convincing story,” Grisham said the other day. Grisham decided to make his own appeal on behalf of the four men.

Earlier coverage is here.

More Misconduct ... And Cost?

Gary Gauger, the exonerated former Illinois death row inmate, is suing law enforcement officials over his treatment.  The Northwest Herald today reports, "Jury selection continues in malicious prosecution case."  It's written bu Jillian Duchnowski.

Jury selection will continue today for Gary Gauger’s malicious prosecution lawsuit against the sheriff’s office.

Gauger, who was convicted and later exonerated of his elderly parents’ 1993 murders, is claiming three sheriff’s investigators maliciously initiated and supported the criminal proceedings against him. Gauger, 57, seeks damages for the more than three years he spent behind bars and for post-traumatic stress disorder.

On Monday, attorneys chose six jurors; they will pick a total of 12 jurors and two alternates.

Attorneys asked potential jurors about their opinions on post-traumatic stress disorder, wrongful convictions, and police credibility. Several potential jurors were excused because they had heard about Gauger’s legal struggles in the news media or through friends.

The original criminal case hung on a confession that police claimed Gauger made after a long interview shortly after his parents’ bodies were discovered.

And:

Gauger was sentenced to die by lethal injection and spent 20 months at Stateville Correctional Center.

In March 1996, an appellate court threw out Gauger’s confession to sheriff’s detectives after law professor Larry Marshall and Northwestern University School of Law’s Center on Wrongful Convictions took up his case.

Former Gov. George Ryan pardoned Gauger after his conviction was overturned, and federal authorities secured convictions of two Outlaw motorcycle gang members for the murders of Morris and Ruth Gauger.

Gauger was one of the individuals depicted in the play, "The Exonerated."

Legal Team for Norfolk Four Comment

Attorneys representing the Norfolk Four have issued a news release.  Here's an excerpt:

Today, after spending more than 11 harsh years in prison for a crime they did not commit, Joseph J. Dick, Jr., Derek E. Tice, and Danial J. Williams, are free men.  Governor Timothy M. Kaine of Virginia granted conditional pardons to the Navy veterans but fell short of granting absolute pardons based on innocence. A fourth innocent sailor, Eric C. Wilson, was released in 2005 after serving 8 ½ years in prison. His clemency request was denied today by Governor Kaine.

“While we are glad that Joe, Derek and Danial will finally be coming home to their families, we are gravely disappointed that Governor Kaine has disregarded the overwhelming evidence of innocence, which proves only one man was responsible for this tragic crime,” said attorney Des Hogan, who represents Derek Tice.  Added Don Salzman, Danial Williams' attorney, "Governor Kaine has set an impossible standard for the grant of an absolute pardon.  The Norfolk Four case is no different than the other 40 or so false confession cases that led to complete exonerations based on DNA evidence."

"The Governor’s decision is illogical. He agrees that there was absolutely no physical trace at the crime scene of any of the innocent sailors and that their conflicting confessions create substantial doubt. His pardon statement today never asserts that the Norfolk Four were involved in this terrible crime in any way," said George Kendall, Joe Dick's attorney.  "Instead, all he has said is that our clients have failed to conclusively prove that they are innocent. Governor Kaine's failure to grant absolute pardons based on innocence to these innocent Navy men further compounds the many mistakes of the Norfolk police and prosecutors that led to their wrongful imprisonment."

Danial Williams, Joseph Dick, Jr., Derek Tice, and Eric Wilson had absolutely no prior criminal records and all four had honorably served their country in the military.
 
Frank Stokes, a former special agent of the FBI, noted that "the Norfolk Four were wrongfully convicted based only on wildly inconsistent and uncorroborated false confessions each made to the police after lengthy, high-pressured interrogations.  No DNA or physical evidence of any kind tied them to the crime, and when examined together, the confessions are actually powerful evidence of their innocence."

Larry McCann, a 27 year veteran of the Virginia State Police and crime scene expert, added that:  "the crime scene and forensic evidence overwhelmingly showed that only one person committed the crime. That person, Omar Ballard, has repeatedly said that he committed the crime alone and is serving a double-life sentence for the rape and murder.  Only Ballard's DNA was recovered from the crime scene and autopsy, and only Ballard's confession matches the physical evidence in every respect. Ballard had been involved in a 3-week crime spree against women in the same neighborhood when he killed Ms. Moore-Bosko."

Des Hogan said that: "after nearly four years of review, Governor Kaine has finally allowed our clients to return to their families.  But this grave miscarriage of justice will not fully end until the Commonwealth of Virginia officially recognizes that all four men are innocent and their good names have been  cleared.  We are saddened that Governor Kaine, who was the only person who ever had all of the evidence of the Norfolk Four’s innocence before him, did not grant our clients an absolute pardon because the evidence of their innocence is overwhelming.  Every independent law enforcement expert who has studied the evidence is convinced they are innocent."

A distinguished, bipartisan group of Virginians supported clemency for the Norfolk Four including: several former Attorneys General of the Commonwealth of Virginia; 31 former FBI Special Agents; a past president of The Virginia Bar Association; prominent state and federal law enforcement officers; former judges and prosecutors from around the country; and 13 jurors in two of the underlying criminal cases.

Earlier coverage begins with this post.

Kaine Grants Conditional Pardons in 'Norfolk 4' Case

That's the headline at the Washington Post website on the controversial Virginia case,  The report is written by Anita Kumar and Tom Jackman.   LINK

Gov. Timothy M. Kaine on Thursday afternoon granted conditional pardons to three members of the "Norfolk 4," clearing the way for the former sailors to be released from prison, where they were serving life sentences for the 1997 rape and murder of a woman in Norfolk.

The pardons of Danial Williams, Derek Tice and Joseph Dick culminated a four-year campaign to clear four former sailors of a crime to which they all had confessed. The men claimed they were coerced into admitting the crime and that detectives fed them details of the incident. Some of those details turned out to be wrong. A fourth sailor, Eric Wilson, already had served nine years in prison and has been released. He was not pardoned.

Kaine said that he was simply reducing the remaining three sailors' sentences to time served and that he was not declaring their innocence. Kaine said he concluded that the men "have not conclusively established their innocence and therefore that an absolute pardon is not appropriate."

And:

The effort to exonerate the Norfolk 4 was led by the Innocence Project, a group that works to clear people who are wrongly convicted, and lawyers from three large law firms who took on the project for free. They filed their first clemency petitions four years ago, in the waning months of then-Gov. Mark R. Warner's administration, and periodically increased the pressure with affidavits and news conferences from jurors, forensic experts, FBI agents and former attorneys general who all thought the men should be cleared of the charges.

A television documentary about the case aired in 2001, and last year a book, "The Wrong Guys," explored the concept of false confessions in detail. In the book, the sailors gave their first-person accounts of how they confessed to something they didn't do. Last month, author John Grisham said he was writing a screenplay in hopes of developing a movie about the case.

William Bosko, also a sailor, and was at sea when his new bride was attacked. He returned to their apartment July 8, 1997, to find her dead in their bedroom. She had been raped and repeatedly stabbed in the chest.

Williams, who lived across the hall, was arrested first, and his erroneous confession -- he said he had beaten Moore-Bosko with his fist and a shoe -- sparked a gradual chain reaction of arrests, accusations and more confessions. At one point, Norfolk police arrested seven sailors and charged them with capital murder, but the DNA found at the scene did not match any of them.

Then, a man already in jail named Omar Ballard wrote a letter to a friend confessing that he had killed Moore-Bosko. Detectives interviewed him, took a sample of his DNA, and it matched the DNA at the crime scene. He eventually pleaded guilty to second-degree murder and said he acted alone. He was already in jail for a similar, nonfatal attack on another woman.

But Norfolk police and prosecutors continued to pursue their cases against Williams, who already had pleaded guilty in a deal to avoid the death penalty, Tice, Dick and Wilson. Charges against three other sailors were dismissed.

Governor Kaine's complete statement has been issued in the form of a news release.

The Richmond Times-Dispatch has, "Kaine grants conditional pardons to ‘Norfolk Four’."

In November, a dozen former FBI agents voiced support for the four sailors they believe are innocent of the 1997 rape and murder of the Norfolk woman.

“It is our unequivocal belief that these former Norfolk sailors were wrongfully convicted,” said Jay Cochran, who retired from the FBI in 1979 and then served as the director of the Bureau of Criminal Investigation of the Virginia State Police until 1985.

Cochran said he and more than two dozen other Richmond-area former FBI agents, after conducting their own review of the case, signed a letter sent to Kaine in July 2008, urging that he grant complete pardons.

The former agents, working solely on their own behalf, said at a news conference that they believe the confessions are false and the result of long and aggressive police interrogations. They said they do not know why two of them also implicated themselves in court.

"Gov. Kaine pardons three members of the Norfolk Four," is by Julian Walker & Michelle Washington for the Virginian Pilot.

The Norfolk Four case had twists and turns from the beginning: First, a single man, Moore-Bosko’s neighbor Danial Williams, was charged with murder. Six months later, Joseph Dick Jr. also was charged.

In the months that followed, a total of eight men were arrested. Charges against three were withdrawn. Four of the five men convicted said their confessions to the crimes were coerced and that they are innocent. Their lawyers say Ballard, the last man to be charged in the crime, committed the killing alone.

Williams, Dick, Tice and Wilson asked the governor for pardons. Their clemency petition was filed in 2005 when then-Gov. Mark Warner was Virginia’s chief executive. Their plight has become a cause celebre in some circles, inspiring a book and a screenplay about the case.

The Never-Ending Crime Story

That's the title of Jordan Smith's latest report on Austin's yougurt shop murders in this week's Austin Chronicle.  LINK  Here's the beginning of the lengthy article, recapping the history and looking at whether Michael Scott and Robert Springsteen will face new trials:

On Wednesday, June 24, Michael Scott and Robert Springsteen walked out of jail after spending nearly 10 years behind bars for the 1991 murders of four girls at a North Austin yogurt shop – a crime both insist they took no part in.

The discovery last spring of male DNA in the body of one of the victims, Amy Ayers, marked a seismic shift in the case. The DNA does not belong to any of the original suspects – nor does it belong to any of the more than 100 men the Travis County District Attorney's Office has subsequently tested. In the wake of that futile search, late last month prosecutors told District Judge Mike Lynch that they were not ready to go to trial – in fact retrials, on convictions that were later reversed – and Lynch, in turn, freed Springsteen and Scott on personal bonds.

The experience has been "a little bit overwhelming," Springsteen told the Chronicle last week. In a post-release interview, Springsteen said he is happy to be out of jail but wants "a trial so we can have the 'not guilty,'" he said. "I want to be vindicated because there has been so much nonsense going on in Austin [with this case] for the last ... 10 years or so. I know there is always going to be that contingent of people who say, 'I don't care what DNA says; they're guilty,'" he said. "But ... in the last year ... everybody [else] has been like – OK, before [my guilt] was questionable. It's not questionable anymore."

Indeed, defense lawyers argue that the new DNA evidence proves not only that the cops arrested the wrong suspects but also that the "confessions" the men made to police were false. Now, more than 17 years after the murders – and with the current status and potential outcome of the case entirely unclear – it seems that the central question has once again become, who killed these four girls?

Earlier coverage begins with this post.  The Austin Chronicle has an extensive archive of its earlier coverage. 

NYT Examines the Yogurt Shop Murders

"New Evidence Opens Old Wound in 1991 Slaying of 4 Girls," is the title of James McKinley's report in today's New York Times.

Seventeen years have come and gone. The yogurt shop where four teenage girls were raped and murdered has been replaced with a payday loan store. No sign remains of the fire the killers set to cover their tracks; no plaque marks the place where the girls died.

Yet this city has been unable to put the horrific crime to rest. Last week, two men who were awaiting retrial for the murders walked out of jail on bond after new evidence surfaced suggesting that someone else might have taken part in the attack.

The men, Michael Scott, 35, and Robert Springsteen, 34, had been convicted in one of the slayings years ago, but an appeals court overturned the verdict, ruling that the men’s confessions were improperly used against each other.

Now the new evidence — an unknown man’s DNA found on at least one of the girls — has thrown those confessions into doubt. The district attorney’s office has tested scores of people, hunting for the mystery person.

Defense lawyers argue that the DNA belongs to the true killer and proves their contention that the confessions of the convicted men were a coerced mass of falsehoods. But the authorities say investigators may have contaminated the evidence.

The events have raised two possibilities deeply troubling to many in this city, which is home to both the state Capitol and the University of Texas. One is that two innocent men have served nine years in prison for a crime they did not commit. The other is that there might be another killer out there.

“We wanted this case to be closed, but there is this gnawing sense that perhaps it wasn’t,” said Thomas Spencer, the head of an association of ministers in Austin. “We wish we had more certainty.”

Some Austin residents are angry at the turn of events.

“We’re stressed because they let these two guys go,” said Terry Ayers, 61, a cousin of one of the slain girls. “They totally botched this whole case.”

Earlier coverage begins here.  Our independent alt-weekly, the Austin Chronicle has an extensive archive of its earlier coverage.

The Charles Raby Case

"HPD crime lab back in the spotlight," is the title of Roma Khanna's report in today's Houston Chronicle.

A death row inmate from Houston, whose conviction is receiving new scrutiny after DNA tests contradicted evidence in his case, will return to court next week where his lawyer will seek his release or a new trial.

A Harris County jury sentenced Charles D. Raby to death in the 1994 murder of a 72-year-old woman assaulted and stabbed in her own home. It is a case that once again highlights errors in work from the Houston Police Department crime lab, with the city’s own expert calling the original testimony “incorrect … and not supported.”

State District Judge Joan Campbell on Monday is scheduled to resume a hearing that began in January when Raby’s lawyer presented new DNA tests on scrapings from the victim’s fingernails, which include no evidence from Raby. Since then, his case has stalled as prosecutors and the Houston Police Department sought expert opinions.

Raby’s lawyer, Sarah Frazier, goes so far as to call the crime lab evidence presented at trial false and claimed prosecutors failed to disclose information about the forensic tests that could have helped Raby before his 1994 trial.

“Trying to pretend that Mr. Raby’s trial was at all legitimate is becoming more and more strained,” Frazier said. “He clearly is entitled to a new trial after all this time.”

The Harris County District Attorney’s office has maintained that the new fingernail evidence is inconclusive and does not clear Raby. Prosecutors on the case were unavailable Friday and a spokeswoman for the district attorney’s office declined comment.

In January, Assistant District Attorney Lynn Hardaway said the new evidence should not affect Raby’s conviction because “the absence of DNA doesn’t mean he didn’t do it.”

And:

At Raby’s trial, jurors heard testimony from HPD crime lab analyst Joseph Chu, who told them that tests conducted on scrapings from under Franklin’s fingernails were inconclusive.

Years later, as revelations about chronic problems at the HPD crime lab came to light, Raby’s case received a second look.

Experts questioned Chu’s conclusions. Patricia Hamby, an expert hired by HPD, found that Chu had strayed from accepted procedures for body-fluid testing and had drawn faulty conclusions.

“The reporting of the blood typing of the ‘fingernails’ as ‘inconclusive’ … is contrary to and not supported by the recorded laboratory results,” Hamby wrote in a report last month to Irma Rios, HPD’s crime lab director.

In 2005, the Court of Criminal Appealsapproved DNA testing on the fingernail scrapings. A private lab in California last year completed analyses that revealed the profiles of two men. They matched neither Raby nor Franklin’s two grandsons.

“The grandsons’ exclusion is significant because these were the only individuals who had regular contact with the victim — a frail, malnourished woman in her 70s who rarely left her home or entertained strangers,” Frazier wrote.

In fact, a forensic expert hired by Raby’s lawyers testified in January that it is rare to find foreign DNA under a crime victim’s fingernails, and that if often can be traced to the person’s partner or attacker.

Khanna, who covered the HPD Crime Lab scandal for years, also wrote an earlier version for the Chronicle website, "Judge seeks expert testimony in Death Row inmate's case."

A Harris County judge wants to hear testimony from a forensic expert before deciding whether new DNA evidence is favorable to death row inmate Charles D. Raby, condemned in the 1994 murder of an elderly woman.

Raby’s conviction is receiving new scrutiny because DNA tests contradict evidence from the Houston Police Department crime lab in his case. His lawyer is seeking his release or a new trial.

On Monday, state District Judge Joan Campbell delayed closing arguments in an evidentiary hearing on the DNA evidence to allow testimony from the city’s expert, Patricia Hamby. She has called the original testimony and lab work by HPD analyst Joseph Chu “incorrect … and not supported.”

Hamby, who is based in Indiana, is expected to testify sometime next month. After her appearance, Campbell will decide whether the new evidence is favorable to Raby’s case, a decision that could provide an opening for his attorney to seek his release or a new trial.

The Houston Press has, "Death-Row Inmate Finally Gets A Break In Crime-Lab Case," by Mike Giglio.

An outside expert, Patricia P. Hamby, determined that the much-maligned Houston Crime Lab had been, at best, misleading in reporting its blood work during the original trial. Blood was found under the victim's fingernails, and it belonged to neither Raby nor the victim. Yet analyst Joseph Chu reported the results as "inconclusive".

It remained to be seen whether Hamby's conclusion would be relevant within the narrow confines of Raby's challenge. That question seemed to be answered this morning, when the judge decided to both accept Hamby's testimony into the record and hear from her in person.

That means closing arguments, scheduled for this week, will be put off indefinitely -- yet again -- until Hamby can appear before the judge.

"I don't know exactly who's going to pay for it. I don't know whose witness she's going to be. But one way or another Patricia Hamby is going to come down to Houston and tell us what she discovered," Sarah Frazier, Raby's lawyer, tells Hair Balls. "I think it's powerful stuff."

Related articles are in the crime lab category index; coverage of the HPD Crime Lab problems, here.

More on the Yogurt Shop Murders

Austin American-Statesman reporter Steven Kreytak recaps the lengthy history of the controversial case in, "Yogurt shop trials to be a challenge for DA," in the Sunday edition.

Robert Springsteen and Michael Scott walked out of the Travis County Jail last week on personal recognizance bonds after almost a decade behind bars. Given the state of the cases against them, it is unclear whether the men once convicted in the 1991 killings of four teenage girls at a North Austin yogurt shop will ever face re-trials.

Serious questions about the prosecutors' theory of the slayings have arisen recently after DNA from an unknown male — not defendants Scott or Springsteen — was discovered in evidence taken from the bodies of at least two teenage victims.

That further muddles a case that has had problems since firefighters who were extinguishing a blaze set by the killers washed out the crime scene at the I Can't Believe It's Yogurt Shop on West Anderson Lane, where Amy Ayers, 13, Eliza Thomas, 17, and sisters Sarah and Jennifer Harbison, 15 and 17, were found bound, gagged and shot in the head Dec. 6, 1991.

And:

After the crime, Austin's homicide unit was overwhelmed with thousands of tips. Detectives brought in what one investigator estimated could be as many as 60 teenagers for interviews in the first two weeks of the investigation, which quickly went awry when too many of those teens repeated back to police details about the crime that police had sought to keep secret, according to court testimony. A string of confessions investigators believed were false also marred the pursuit of the killers.

Soon, police were investigating their own leaks, and some investigators were removed from the case.

Earlier coverage begins here.

'A Perfect Storm' from Nebraska

The Lincoln Journal Star has put together a first-class report on what it bills as, "the story of the greatest miscarriage of justice in Nebraska's modern legal history."

The introduction to the four-part series is, "'A perfect storm'."

Late last year, DNA evidence from a 23-year-old murder in Beatrice shocked Nebraska by what it failed to find: a match with any of the six people convicted of the crime.

Forensic tests unavailable when Helen Wilson was raped and suffocated in 1985 unraveled a legendary investigation, reversed six convictions and released three people still serving prison time — including one for life.

Then the very tests that exonerated them helped authorities identify the true killer.

Nebraska joined 33 states where 227 imprisoned people have been declared innocent by DNA tests.

Yet how could six people be convicted of a crime authorities now say they did not commit? How could they testify under oath to their roles — testimony they later recanted?

To find out, the Journal Star examined the entire Wilson case file: original police reports, videotaped interrogations, court documents and trial transcripts — a trove exceeding 5,000 pages and hours of recordings. Reporters followed up with dozens of interviews of the main players.

The inescapable conclusion: A series of errors led to the convictions. Actions by law enforcement investigators, the prosecutor, some defense attorneys and the defendants themselves all played a part.

“What happened here is the perfect storm of professional incompetence,” said Steven Drizin, legal director for the Center on Wrongful Convictions at Northwestern University in Chicago.

Problems uncovered by the Journal Star examination:

* Key details from a confidential informant could not have been true, yet her statement set a course for the investigation that put six people in prison for a combined 70 years.

* The lead investigator, eager to solve a horrific cold case, hounded his top suspect and either missed or ignored evidence that supported the suspect’s innocence.

* A psychologist who held a dual role as both a sheriff’s deputy and a mental health counselor provided therapy for two of the suspects before they were arrested and then met with  five as a deputy. Such a role violates professional psychology standards, others say.

* At a moment when police had the real killer within their grasp, a lab technician made an error on a blood test that threw investigators off the trail.

* Interrogation videos and transcripts generally show suspects had no initial memory or knowledge of the crime. Investigators showed suspects the crime scene video and photos and they mentioned other confidential details in the interrogations, essentially shaping how the story of the crime would emerge.

* The former Gage County attorney used plea bargains and the threat of capital punishment to turn defendants against each other. Yet their eventual testimony was deeply at odds with crime scene evidence.

* Three of the six suspects confessed and implicated their co-defendants. Now, they say they lied to escape the death penalty or long prison terms.

The rape and suffocation of Helen Wilson devastated a family and shook a blue-collar community of 12,900. Most who knew about the case thought for nearly two decades justice had been served.

In fact, some continue to believe the six were involved in the murder.

But one of the six always maintained he had been denied justice. He defied the power of the state.

He was right.

The series front is, "Presumed Guilty."  The individual stories are:

Part one: Murder in Apartment 4
On the trail of a wolf Helen Wilson couldn’t shake the chest cold. The 68-year-old Beatrice widow felt miserable when her son visited the evening of Feb. 5, 1985.

Accompanying story: Investigator convinced of suspect's guilt
Understanding how Nebraska law enforcement authorities accused six people of a crime they didn’t commit starts with understanding how the lead investigator locked in on his top suspect.

Part two: The search for a killer
For three nights in February 1985, Beatrice police sat in a motor home a quarter-mile from Pleasant View Cemetery near Pickrell.

Part three: The Break
Joseph White settled down after he caught a bus out of Beatrice in March 1985.

Accompanying story: 'Polygraph is not a lie detector'
The years — and DNA — have proven Joseph Edgar White was telling the truth when he said he did not rape Beatrice widow Helen Wilson in 1985.

Part four: Pointing fingers
Joseph White was cold and confused when he sat down in the interrogation room at the Cullman, Ala., police department.

Presumed Guilty: Interrogation videos
Watch interrogation videos from JoAnn Taylor, Thomas Winslow and Debra Shelden.

Accompanying story: Experts weigh in on Price's role as psychologist, deputy
The roles played by Beatrice psychologist Dr. Wayne Price in the Helen Wilson murder investigation could be cause today for an inquiry into professional misconduct, says an officer of the American Board of Forensic Psychology.

Presumed Guilty: About the reporters
Joe Duggan is a reporter at the Lincoln Journal Star, where he has worked for 16 years. He produces a range of hard news and feature stories for the newspaper and periodically teaches a journalism class at the University of Nebraska-Lincoln. Duggan previously reported for the Grand Island Independent and is a graduate of the University of Iowa.

This is exactly the sort of long-form, investigative reporting that many of us are concerned about loosing as newspapers across the country shed staff and resources.  This enterprise journalism by the Lincoln Journal Star helps to illuminate serious flaws that exist in many jurisdictions.

Judge Favors Sentence Other Than Death

That's the title of an article in today's Cleburne Times-Review by Pete Kendall.  LINK  Here are several excerpts from this must-read:

No legal system is perfect, said Cleburne resident and senior district judge C.C. “Kit” Cooke.

That includes the one in Maryland being altered to custom-fit that state’s capital murder offenders, he said.

Gov. Martin O’Malley said said that this month he will sign into law major restrictions on when offenders may be sentenced to death.

The death penalty will only be allowed in Maryland when defendants are linked to the offense through DNA or other biological evidence, videotaped confessions or videotaped evidence.

It may be the most rigid bundle of limitations on capital murder punishment in the United States, and it is flawed, Cooke said.

“I don’t think it’s realistic. You’re not going to have a video confession or video of the act, and you can’t tie everything to DNA.”

Cooke should know. DNA played a major role in a conviction in a capital case Cooke tried in Johnson County.

DNA could have played a major role in a case Cooke tried in Fort Worth. It didn’t because no DNA existed.

Cooke tried another capital case in Fort Worth in which DNA did not play a role at the time, but it did later in related cases.

The three defendants had two things in common — Cooke presided at their trials, and they were ultimately executed in Huntsville.

And:

The third case, in which Richard Wayne Jones was convicted and sentenced to death in Fort Worth in 1987, bothers Cooke to this day.

It contributed to his belief that the death penalty is assessed too liberally in Texas.

Jones, he said, might have been innocent of the crime for which he was executed in 2000.

“Richard claimed innocence forever,” Cooke said. “To be honest, that’s when I started having some doubts about trying capital murder cases. I tended to believe his story. The facts were that he’d been to the penitentiary two or three times. According to his statement [which Jones said was coerced], he decided he was going to kill somebody when he got out.

And:

Cooke said he did well by Jones.

“Did I do everything I could? Yeah,” he said. “I’m convinced he had the best lawyers. I did have some doubt [about Jones’ guilt]. I would have been more comfortable if he could have been locked away for life with no parole.”

Largely for two reasons, capital murder cases have dwindled. The cost of trying one is prohibitive, and juries now have the option to sentence defendants to life with no parole.

“The last time I lectured on the subject, a capital trial cost over $3 million,” Cooke said. “Well, we can keep a person in prison for life for about $500,000. Some say it costs too much to keep them locked up, but that doesn’t square. It’s a lot cheaper to keep them in a 9 by 6 cell instead of paying the attorneys’ fees and all the other costs that go with a capital trial. Some counties can’t afford it. In Brewster County, the net tax base wouldn’t pay for a capital trial.”

Cooke was a young state legislator when the death penalty was abolished in the early 1970s. He saw the reinstatement of the death penalty in the mid ’70s.

“I was very pro capital punishment at the time,” he said. “I wouldn’t take it off the books now. There are cases that probably deserve it. But generally speaking, life without parole is more palatable.”

Cooke has said as much at legal gatherings.

“I did a lecture for an advanced criminal law course where all the top lawyers in Texas come together every year,” Cooke said. “They had me talk on the death penalty, and I raised some strong objections to it. That was the first time I know of that a judge had spoken out about it. I look at it with a little more critical eye than when I started.”

Convicting the Innocent: Texas Justice Derailed

That's the title of the Justice Project's latest report, and it focuses on Texas wrongful convictions.  You can read the report here; or download a copy in Adobe .pdf format.  This is from the introduction:

Since 1994, Texas has exonerated thirty-nine innocent people who served over 500 years in prison for crimes they did not commit. This report contains brief overviews of these thirty-nine cases, all of which have been exposed by DNA evidence, and analyzes the systemic problems that have resulted in the wrongful convictions of the innocent. By identifying the causes of wrongful convictions and implementing practical reforms, Texas can increase the fairness, accuracy, and reliability of its criminal justice system.

Because DNA evidence is only available in a fraction of cases, the wrongful convictions described in this report are only the beginning. There are many other wrongful convictions that have been cleared without the benefit of DNA. While non-DNA exonerations are more difficult to prove, they are similar to DNA cases in that they trace back to the same flawed procedures in need of reform. As such, these thirty-nine DNA cases expose a criminal justice system that is wrought with problems that lead to wrongful convictions.

Although several of the exoneration cases involve instances of intentional misconduct, inadvertent error is by far more common. It would only compound these injustices, however, to assume that these mistakes were inevitable. Texas cannot ignore its broken criminal justice system. This report addresses the common causes that lead to wrongful convictions, as echoed in each of these cases, and presents practical reforms to prevent such errors. It is critical for Texas to take action. When Texas gets it wrong and convicts an innocent person, the true perpetrator remains free to commit more crimes.

This is from TJP's news release announcing the report:

A new report released today by The Justice Project analyzes the cases of thirty-nine innocent Texans who collectively spent more than five hundred years in prison for crimes they did not commit. Convicting the Innocent:

Texas

Justice Derailed also presents reforms

Texas

must implement in order to improve the quality of evidence used in criminal cases and reduce the risk of wrongful convictions.

The report finds that while DNA analysis is an invaluable tool, it alone cannot prevent the wrongful convictions that arise from unreliable evidence. The report also analyzes the many costs to society each time a wrongful conviction occurs, including the crimes committed by the actual perpetrators following the conviction of the wrong person.

Among the report's key findings:

• Innocent Texans exonerated by DNA spent about 548 years in prison for crimes they did not commit.

• Eyewitness misidentification is the leading cause of wrongful convictions exposed by DNA in

  Texas

  , present in eight-five percent of wrongful conviction cases.

• Other factors leading to

  Texas

  wrongful convictions include: false confessions and guilty pleas, suppression of exculpatory evidence, false testimony from informants or accomplices with incentives to lie, false forensic testimony, and unreliable or limited forensic methodologies.

And:

"It is essential to learn from these mistakes when they are discovered," said

Edwin Colfax

, director of state reform campaigns at The Justice Project, "so that we can address systemic flaws and ensure the most reliable evidence possible in our courts."

The report details how the devastation these cases have wrought begins with the wrongly convicted, but extends out to the family members, jurors and victims who become embroiled in a terrible injustice. According to the report, "In each of these innocence cases, a criminal investigation into a serious, violent crime was shut down prematurely when authorities prosecuted the wrong person."

Legislation is pending in the Texas Legislature that would reform eyewitness identification procedures, require electronic recording of custodial interrogations, and increase safeguards against unreliable informant testimony, among other reforms.

"Study: Witness errors lead juries astray," is Roma Khanna's report in today's Houston Chronicle.

Most wrongful convictions in Texas stem from mistaken eyewitness identifications, errors that experts say could have been avoided — or even eliminated — with more sophisticated lineup techniques, according to a report released Wednesday.

Since 1994, DNA evidence has exonerated 39 men convicted in Texas of crimes ranging from kidnapping to murder, according to a report Wednesday by the Justice Project, a nonprofit focused on criminal justice reform.

Six of the cases occurred in Harris County. Each was investigated by the Houston Police Department. Each was built on flawed eyewitness evidence.

“Eyewitness identification is the leading cause of wrongful convictions in Texas and across the country,” said Edwin Colfax, Texas director of the Justice Project, which analyzed the factors that contributed to the wrongful convictions.

“But of law enforcement agencies across Texas, only a tiny fraction have any written policies for these critical investigative procedures and only a tiny fraction have implemented best practices,” he said.

In many of these cases, not only was eyewitness testimony wrong, but DNA evidence was faulty or absent altogether. Three of the Houston cases contained flawed forensics from the HPD crime lab.

Houston Police Chief Harold Hurtt has said he plans to issue written instructions on lineup procedures, but for now, HPD has none.

“Officers are taught standard operating procedures in the academy and from there (procedures) are managed and done by various divisions within the department,” said Craig Ferrell, HPD general counsel. “But we do not have a written general order.”

TJP's President, John Terzano, posted, "New Report Analyzes Texas Wrongful Convictions Exposed by DNA," at TPM

It is difficult to fathom that thirty-nine innocent Texans have spent more than five hundred years in prison for crimes they did not commit.  This alarming figure is detailed in a new report issued this week by The Justice Project: Convicting the Innocent: Texas Justice Derailed.

Unfortunately, five hundred years does not reflect the actual amount of time all innocent people have spent wrongfully imprisoned in Texas because the report only focuses on individuals who were exonerated by DNA evidence, which is available in only a fraction of cases. Each DNA exoneration exposes flaws in our criminal justice system that lead to unreliable evidence and inaccurate verdicts in our courts. It is time Texas and the rest of the country confront these flaws and learn from these costly mistakes.

10 Years Since Last Execution in Illinois

That's the title of an article by Maurice Possley in the Sunday Chicago Sun-Times.  "Last state execution was March 1999, but fight goes on to abolish death penalty," is the subtitle.

Before he was executed on March 17, 1999, convicted murderer Andrew Kokoraleis sat in his cell and wrote a note to his spiritual adviser, Demetrios Kantzavelos, who was then the chancellor of the Greek Orthodox Diocese of Chicago.

Two days later, the card arrived.

"It was very haunting," now-Bishop Kantzavelos said. "He thanked me for everything I had done for him, and he wrote that perhaps God might use his execution to finally end all executions in Illinois."

No one has been put to death in this state in the decade since Kokoraleis died by lethal injection. On Thursday, death penalty opponents -- including Kantzavelos and members of the Illinois Coalition to Abolish the Death Penalty -- plan to hold a rally at the state Capitol to support a bill that would abolish capital punishment. The bill passed a House committee last Wednesday -- the first abolition bill to make it to the House floor since 2003.

"I tried to see [then] Gov. Ryan to see if he would delay the execution to study the system," Kantzavelos said. "He would not have a meeting. I was very bitter about it. Andrew would be alive today if his execution had been delayed."

Kokoraleis was convicted of mutilating and murdering 21-year-old Lorraine Borowski, who was abducted in 1982 on her way to work at a real estate office in West suburban Elmhurst. Her body was later found in a cemetery. Prosecutors said he was involved in more than a dozen other murders of area women.

More than nine months after Kokoraleis was executed, in January 2000, Ryan imposed a moratorium on executions that remains in effect. Gov. Quinn has said he will not lift the moratorium.

In 2003, Ryan commuted the sentences of all 167 Illinois Death Row inmates to life in prison without parole. Since then, Kantzavelos has been even more active in the anti-death penalty movement.

"The Byzantine empire outlawed the death penalty in the sixth century," he said. "I live every day with the prayer that Andrew's dying wish will be granted."

Since Kokoraleis' execution, there has been a dramatic shift in the imposition of the death penalty across the nation, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

"It seems clear that the issue of innocence has played a pivotal role," Dieter said. "There were 306 death sentences in 1998, a typical year for that decade. In 2007, the number of death sentences dropped to 115 -- a 62 percent decline.

"The issue of innocence was played out more publicly and emphatically in Illinois than anywhere else in the country," Dieter said. "From exonerations resulting from journalistic investigations, to the national conference at Northwestern in 1998, to the declaration of the moratorium ... Illinois has been at the center of the innocence revolution."

Dieter's center lists 130 Death Row exonerations since 1973, including 17 in which DNA evidence played a crucial role. In Illinois, 10 defendants had been released from Death Row by the time Kokoraleis was executed. In 2003, Ryan pardoned four more.

In 1999, there were 98 executions nationwide, but only 37 in 2008. Thirty-five of those were in Southern states, including Texas, Oklahoma and Florida, among others.

And:

Many reforms were proposed in Illinois after the moratorium. Only a fraction became law -- most notably the establishment of a capital litigation fund, training and certification for prosecutors and defense lawyers, and the introduction of videotaping of interrogations in murder investigations.

Former U.S. Attorney Thomas Sullivan, who was a member of the commission that proposed the Illinois reforms, also heads a committee formed to study the impact of the changes. There isn't sufficient data to assess the success or failure of the post-moratorium death-penalty system, he said. But "the sheer numbers show that the number of death sentences that have been returned has decreased dramatically,'' he said. "Currently, there are 15 defendants on Death Row in Illinois."

The imposition of the death penalty has slowed significantly, statistics show. During 2006 and 2007, the cases of 105 defendants who at one time faced the death penalty were resolved.

Prosecutors withdrew the death penalty in 62 of the cases and sought the ultimate punishment in 43 cases. Six people were sentenced to death -- three in Cook County and one each in Will, DuPage and Hancock counties.

Of the 37 remaining cases, 32 defendants were convicted and sentenced to terms ranging from 28 years to life in prison without parole. One defendant was convicted of a less-serious offense than murder. Four were acquitted.

While the number of death sentences is down sharply, Sullivan believes the death penalty is still being used as a threat by prosecutors to obtain plea bargains. Sullivan also thinks that prosecutors in rural counties seek the death penalty so funding for the case will come from the state-funded capital defense budget, rather than from individual county treasuries.

Ultimately, though, Sullivan believes "the cases are better defended," he said. "The playing field has been leveled to some degree. And so the state is seeking the death penalty less often."

More on this legislative season in Illinois is here.

Texas Criminal Justice Integrity Unit Issues Report

Judge Barbara Hervey's office has released a report of the group's 2008 activities,  I've put a link in the right column Reports section.  It can be downloaded, here, as well.  Here's the brief introduction:

This report discusses the activities, research findings, and progress of the Texas Criminal Justice Integrity Unit (TCJIU).  It summarizes activities for June 2008 through January 2009.

  Established in June 2008, the TCJIU held its first formal meeting in August 2008.

The TCJIU was created to review the strengths and weaknesses of the Texas

criminal justice system.Furthermore, the TCJIU’s purpose is to bring about meaningful reform through education, training, and legislative recommendations.It is not a forum for any particular group, nor does it embrace the plan of one particular political party.

Coverage of the Unit is here.

The Beatrice Six

In the middle of the Nebrasa's debate over whether to end a moratorium on executions by abolishing the death penalty or adopt lethal injection, a high visibility exoneration may have an impact on the legislative debate.

"Pardons granted to five in murder they didn't commit," is the title of Paul Hammel's report in the Omaha World-Herald.

Written in frosting, the message on the white sheet cake at a reception Monday read: "Justice for the Beatrice Six."

But the impact of exonerating six people wrongly convicted in the 1985 murder of a Beatrice, Neb., woman is likely to reverberate long after the last of the cake was consumed.

The State Board of Pardons voted 3-0 Monday to grant pardons to five people who had pleaded either guilty or no contest in connection with the rape-murder of 68-year-old Helen Wilson.

A sixth man found guilty by a jury in the homicide, Joseph White, was exonerated in October when prosecutors declined to seek a new trial after the verdict was nullified.

A state prosecutor and a defense attorney testified Monday that testing of evidence found at the scene, using DNA technology not available in the 1980s, found no evidence that any of the six was at Wilson's apartment or involved in the slaying.

The tests instead pointed to a now-dead Oklahoma City man, Bruce Smith, as the killer.

"They are 100 percent innocent," said Nebraska Attorney General Jon Bruning, of the so-called "Beatrice 6."

"Justice has been served," said Gov. Dave Heineman, who sits on the Pardons Board with Bruning and Secretary of State John Gale.

But in the wake of the historic vote — it is the largest group of people in the country to be freed by DNA tests — it is clear that the case will affect more than the lives of the six who were wrongly convicted.

And:

• The case provides powerful ammunition to those who want Nebraska to join 25 other states in providing compensation to those wrongfully convicted and imprisoned for crimes. A bill that would provide at least $50,000 a year for each year wrongfully spent in prison has been introduced in the Nebraska Legislature.

• It provides another argument for capital punishment opponents, who say a criminal justice system that can wrongfully convict six people for a murder also could mistakenly condemn someone to death.

"This is really the first crack in the shell — that people realized that there are innocent people in prisons in Nebraska," said Jill Francke, statewide coordinator for Nebraskans Against the Death Penalty.

"Don't let this be the end," said former State Sen. Ernie Chambers of Omaha, a leading death-penalty foe, at a cake-and-coffee reception held after the meeting at the Cornhusker Hotel for those exonerated.

The impact will be discovered soon enough.

Thursday, the Legislature's Judiciary Committee will hold public hearings on measures to eliminate the death penalty in Nebraska and to adopt lethal injection as the method of execution.

"5 pardoned after wrongful conviction in Neb. crime," is the AP report via Google News.

The five defendants who pleaded guilty said they were threatened with the death penalty and told that others had implicated them in the crime. They were offered plea deals to confess.

"I had a 14-month-old baby," said 45-year-old JoAnn Taylor, who spent 19 years in prison. "I was told they'd make me the first female on death row."

Deb Shelden, 50, said she was surprised she got a pardon. She has maintained that she was at the scene but didn't participate in the crime, but said Monday, "I don't know what to believe any more."

"They say the evidence shows we weren't there," she said.

Her husband, Clifford, said his wife was confused by a psychiatrist who helped her "recover" what she came to believe were memories.

O'Brien said Shelden and others may have been brainwashed. Shelden and Kathy Gonzalez, 48, completed their sentences in 1994.

In 2007, the Nebraska Supreme Court ruled that White and Wilson could ask for DNA tests to try to prove their innocence, after lower courts had denied them the tests on the basis that they wouldn't absolve the men.

Nebraska's DNA testing law is about 8 years old and requires the state to test DNA evidence if it is likely to produce evidence that someone else committed the crime.

False Confessions

The topic of false confessions was front and center at today's meeting of the Texas Criminal Justice Integrity Unit.  The Integrity Unit was formed last year by Court of Criminal Appeals Judge Barbara Hervey to examine widely acknowledged problems in the criminal justice system.

Richard Leo, an Associate Professor at the University of San Francisco School of Law, an expert on false confessions, provided an overview of the problem and solutions.  He recommended that all custodial interrogations be recorded, thus creating an objective record of what happened.

Leo outlined three distinct types of false confessions; voluntary, compliant, and persuaded. 

He noted that false voluntary confessions are often seen, and generally weeded out, in high profile cases such as the JonBenet Ramsey case. 

Compliant false confessions come about to avoid stress, or end the interrogation; often as a result of threats or promises made during the interrogation.  Leo cited Chris Ochoa's false confession as an example. 

Persauded false confessions occur because the person being interrogated has no memory of the event, but becomes conviced that s/he must have committed the crime because of statements made by the interrogator that there is physical evidence linking the suspect to the crime.  Leo said such confessions may occur over prolonged interrogations, and Leo said he believes Austinite Michael Scott's confession to be a persuaded false confession.  It's important to note that police are able to lie about available evidence during interrogations in order to obtain confessions.  Leo said that people who have abused drugs and alcohol may be especially suseptable to giving persuaded false confessions.

Michael Scott is one of two men awaiting new trials in Austin's yogurt shop murders.  Leo said he believes that the other yogurt shop defendant, Robert Springsteen, also falsely confessed to the crime.  Leo cited the two Austin men's cases as proof that videotaping custodial interrogations alone is not an absolute solution, though he believes the practice greatly reduces the potential for false confessions to proceed.

Leo said that it was important to catch false confessions as early as possible because they are so prejudicial to a case -- what is more convincing of guilt than a defendant's confession.  He described the rush to judgment from a false confession as a snowball.

10 states currently mandate electronic recording of custodial interrogation because of state court ruling or legislation.  He cited Wisconsin and Minnesota as leaders in the practice.  In past legislative sessions State Senator Rodney Ellis has introduced bills to mandate recording interrogations.  Today, Judge Hervey said that she is working with Senator John Whitmire on another version such a bill.  Integrity Unit members Jerry Madden and Jim McReynolds, both members of the Texas House, expressed interest in working on such legislation in the 81st Texas Legislature, which convened at noon today.

Leo added that law enforcement agencies that record the interviews never want to return to days of untaped sessions, but agencies that have not begun taping are extremely reluctant and resistant to try the practice.

Leo also cited Tom Sullivan's work persuading law enforcement agencies to record custodial interrogations.  Sullivan is a former U.S. Attorney who co-chaired the Illinois Governor's Commission on Capital Punishment.

The Exonerated

That's the title of Texas Monthly Senior Editor Michael Hall's report in the November TM.  The subtitle is, "
These 37 men spent 525 years in prison for crimes they didn’t commit. Then came the hard part: freedom."

Here's an excerpt from the introduction.  The article then profiles the 37 exonerees.

The first thing you notice is the eyes—they all have the same look in them, the look of men accustomed to waking up every morning in a prison cell. These 37 men spent years, and in some cases decades, staring through bars at a world that believed they were guilty of terrible crimes. But they weren’t. Each was convicted of doing something he did not do. It’s hard to characterize the look in their eyes. There’s anger, obviously, and pride at having survived hell, but there’s also hurt, and a question: “Why me?”

The short answer is simple: People make mistakes. Most of these cases share a common story line: A woman, usually a traumatized rape victim, wrongly identifies her attacker. Sometimes her testimony is backed by rudimentary serology tests. Sometimes the cases are pushed too hard by aggressive police officers or prosecutors. Sometimes the accused already has a criminal record and becomes a suspect in an unsolved case in which he resembles (or is the same race as) the perpetrator. Almost every man here had a solid alibi, but cops, prosecutors, and juries chose not to believe it.

So why do we believe it now? How can we be so certain these men are innocent? DNA testing, which over the past two decades has changed the way we convict the guilty—and free the innocent. This is especially true in Texas, which has had more DNA exonerations—37 in all—than any other state (there have been 222 nationwide according to the Innocence Project, a nonprofit advocacy group for the wrongly convicted). Dallas County alone is responsible for 19 exonerations, more than every state except Illinois and New York. Unlike most jurisdictions, which discarded evidence after the appeals in a case were exhausted, Dallas County had a policy of saving it in storage lockers at the Southwestern Institute of Forensic Sciences, in the belief that it might someday be used to reaffirm a criminal’s guilt. As for the other 18 Texas exonerations, it was mostly dumb luck that prevented the old swabs from being thrown away. (In 13 of these cases, the guilty man was eventually fingered.)

Texas Monthly has two multimedia features online, "Conviction: Slide Show," and "A True Crime: Video."

Texas Monthly and Southern Methodist University will co-sponsor a panel discussion, Thursday, November 6, on the SMU Campus.  It is open to the public, but an RSVP is required.

Just for the record, Michael and I are not related.

The Case for Videotaping Interrogations

That's the title of an OpEd in today's Los Angeles Times by Jim Trainum, a police detective.  LINK

I've been a police officer for 25 years, and I never understood why someone would admit to a crime he or she didn't commit. Until I secured a false confession in a murder case.

I stepped into the interrogation room believing that we had evidence linking the suspect to the murder of a 34-year-old federal employee in Washington. I used standard, approved interrogation techniques -- no screaming or threats, no physical abuse, no 12-hour sessions without food or water. Many hours later, I left with a solid confession.

And:

Even the suspect's attorney later told me that she believed her client was guilty, based on the confession. Confident in our evidence and the confession, we charged her with first-degree murder.

Then we discovered that the suspect had an ironclad alibi. We subpoenaed sign-in/sign-out logs from the homeless shelter where she lived, and the records proved that she could not have committed the crime. The case was dismissed, but all of us still believed she was involved in the murder. After all, she had confessed.

Even though it wasn't our standard operating procedure in the mid-1990s, when the crime occurred, we had videotaped the interrogation in its entirety. Reviewing the tapes years later, I saw that we had fallen into a classic trap. We ignored evidence that our suspect might not have been guilty, and during the interrogation we inadvertently fed her details of the crime that she repeated back to us in her confession.

And:

More than 500 jurisdictions nationwide record interrogations, but only 10 states, plus the District of Columbia, mandate the practice. California's Legislature passed bills in 2006 and 2007 that would have required interrogations to be recorded. Both were vetoed by Gov. Arnold Schwarzenegger. A third bill died in committee this year. California legislators should not give up. They must make this issue a priority and pass legislation to make our criminal justice system stronger and more accurate.

The false confessions index is here.

Dumb on Crime Means Broken Lives

That's the title of an editorial in Sunday's Austin American-Statesman.  LINK

Something is terribly wrong with the Texas justice system, which has sent scores of innocent people to prison for crimes committed by others. It is especially tragic that Texas has the capability and technology to prevent (or discover) errors that lead to wrongful convictions but lacks the leadership and will to use it.

What other conclusion can be drawn in the face of the dozens of DNA exonerations - now totaling 33 - of wrongfully convicted people who languished in Texas prisons for years, some nearly three decades. And those exonerations don’t include people cleared by other means, such as the Tulia residents who were convicted on the false testimony of a law enforcement officer.

Perhaps after last week’s public hearing at the state Capitol, the issue of protecting innocent citizens from being wrongfully imprisoned finally will gain traction. It must. It is unacceptable that innocent people are convicted while the real culprits get away with rape, murder and other violent crimes. That approach is not tough on crime - it’s dumb on crime.

Earlier coverage of the Summit on Wrongful Convictions is here.

Summit on Wrongful Convictions

Senator Rodney Ellis convenes a Summit on Wrongful Convictions at 1:00 p.m. (CDT) today in the Texas Senate Chamber.

The Summit will be webcast by Senate Media Services, here.

Here's more from Senator Ellis' announcement:

As a result of the unprecedented number of exonerations in Texas, key leaders from across the state will gather in Austin on May 8 for a landmark Summit on Wrongful Convictions. Judges, lawmakers, defense attorneys, prosecutors, exonerees, professors and many others will come together for the Summit. The Summit will mark the first time any state’s criminal justice leaders have initiated a high-level meeting themselves to address wrongful convictions. Texas State Senator Rodney Ellis is spearheading the Summit, and Innocence Project Co-Director Barry Scheck will attend. The Summit will be open to the public.

“We’ve reached a tipping point on wrongful convictions in Texas. Nobody can seriously doubt that there’s a problem, and next week leaders from across our criminal justice system will come together to start solving it,” Senator Ellis said today. “We will bring a wide range of leaders, experts and exonerees together for a full day to develop concrete, common-sense remedies to make our system of justice more fair and accurate. We won’t solve these serious problems in one day, but we will make historic strides toward restoring confidence in our criminal justice system.”

Earlier coverage is here.

Also in New York

NewsLI.com reports on a recent public forum in the Empire State, "Senator Schneiderman, Innocence Project and Others Champion Mandatory Recording of Interrogations."

On Friday, April 11, State Senators Eric Schneiderman (D-Manhattan/Bronx), Velmanette Montgomery (D-Brooklyn), John Sabini (D-Queens), John Sampson (D-Brooklyn), Eric Adams (D-Brooklyn) and Bill Perkins (D-Manhattan), Assemblymember Charles Lavine (D-Glen Cove), and leading criminal justice advocates took part in a public forum to address wrongful convictions and Mandatory Electronic Recording of Interrogations.

At the forum, expert testimony was presented by Barry Scheck of The Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law, Nicholas A. Gravante, the attorney who represented Frank Esposito in People v. Esposito, the representatives for Long Island native Martin Tankleff, who was present at the forum, Thomas P. Sullivan, a former United States attorney and national expert on recording custodial interrogations, Jeffrey Szabo, Deputy County Executive and Chief of Staff to Suffolk County Executive Steve Levy, and Jeffrey Deskovic, who was exonerated in 2006 after serving 15 years in prison for a murder and sexual assault that he did not commit.

Schneiderman, who chairs the New York State Senate Democratic Task Force on Criminal Justice Reform and also serves as the ranking Democrat on the Senate Codes Committee as well as a Commissioner on the New York State Commission on Sentencing Reform, has worked tirelessly to ensure that the guilty are punished and innocent persons are safeguarded. Testimony from today’s forum will be used to develop legislation that ensures the public’s trust in New York’s criminal justice system.

”A grave injustice is committed when we create victims out of innocent people because inefficient, unreliable and out of date models of interrogation continue to be used,” Schneiderman said. “Too often, criminal cases have been decided on little more than he-said/she-said. We need mandatory electronic recording so that justice is carried out with precision, so that detectives can do their work knowing their efforts are well-documented, and with no lingering question about whether the right person is off the streets.”

Thomas Sullivan co-chaired the Illinois Governor's Commission on Capital Punishment and continues to work to implement several of the recommended reforms nationally; particularly the electronic recording of custodial interrogations and improvements in eyewitness identification procedures.

Senseless Imprisonment

That's the title of an editorial in today's Dallas Morning News, a follow-up on Diane Jennings revisiting of the Chris Ochoa & Richard Danziger exonerations.  LINK

The Christopher Ochoa case should be required reading for state lawmakers – and for anyone who thinks the criminal justice system is ever good enough.

It wasn't good enough for Mr. Ochoa. It wasn't good enough to avert the cruel irony that he went to prison based on his own false confession.

The portrait of the senseless Ochoa case, as depicted in an article by Dallas Morning News reporter Diane Jennings, illustrates how illusory justice can be.    

As if plucked out of thin air, a 22-year-old Mr. Ochoa ended up in an Austin police interrogation room in connection with a brutal rape and murder in 1988.

The hammer used by police, in hours of questioning over two days, was the threat of a death sentence. That produced a convenient plea deal for detectives under pressure to solve the crime.

Pliable and confused, Mr. Ochoa gave a statement incorporating details fed by detectives. In return for a life sentence, he even implicated an acquaintance and helped put him in prison, as well.

Mr. Ochoa's 12 years behind bars is dwarfed as an injustice by the fate of his co-defendant, who left prison brain damaged as a result of an attack by another inmate.

And:

It's outrageous that Texas House members have blocked legislation that would form a commission to analyze such shameful wrongful convictions and recommend improvements, even state standards.

The jury system has no equal in the search for justice and truth. But there's no excuse for not trying to make it better yet.

The post linking Jennings two articles, as well as earlier coverage, is here.

Revisiting Chris Ochoa

Diane Jennings revisits the people at the center of a Travis County case -- a non-capital case -- that ended in the exoneration of two men, and changed the life of a crime victim's surviving mother.  Both articles appeared in Sunday's Dallas Morning News.

First, "Two men's DNA exonerations in '88 Austin murder reveal triumph, tragedy."

How could you do it?

The question dogs Christopher Ochoa. It always will.

In 1988, Mr. Ochoa, then a naive 22-year-old, confessed to a rape and murder he didn't commit, and accused an innocent friend, Richard Danziger, of the same crime to avoid the death penalty.

The two men were sentenced to life in prison. Twelve years later, they were exonerated by DNA evidence and were among the first of a parade of people who have made Texas the national leader in acknowledging wrongful convictions. Their shocking tale still reverberates around the state Capitol, where legislators keep passing laws to fix flaws that the case revealed in the criminal justice system.

Mr. Ochoa, now 41, triumphed over his past. He is now a criminal defense attorney, having graduated from the University of Wisconsin Law School – the same school that helped free him. Thanks to a multimillion-dollar civil settlement, he has set up a modest office across from the scenic Wisconsin Capitol, where he can pick and choose cases. He's planning to buy a house and get married.

"This is what I dreamed of" during years hemmed in by guards and razor wire, he says softly.

But Mr. Danziger's story is one of tragedy. Mr. Danziger, who always maintained his innocence, suffered brain damage when another inmate repeatedly kicked him in the head with steel-toed boots. He now lives under his sister's guardianship in Florida, his multimillion-dollar settlements providing medical care and personal assistance.

"Everybody involved in this case has drug himself through the desert behind a Jeep trying to figure out what happened," says Travis County District Attorney Ronnie Earle. "It is far and away the strangest case I can remember."

The real killer came forward and is in prison. The criminal justice system has changed for the better. But many affected by the Ochoa-Danziger case say their faith in the system was permanently shaken.

Jennings also catches up with Jeannette Popp, "Mother of '88 murder victim says her faith in justice system shattered after exonerations."

When Nancy DePriest was raped and murdered, her mother, Jeanette Popp, was sure the criminal justice system worked.

Now she's sure it doesn't.

"I don't think we have learned anything," she says almost 20 years later.

Earlier coverage is here.

What Happened In Norfolk

That's the title of Alan Berlow's must-read article in the Sunday New York Times Magazine.  LINK  False confessions are a major cause -- and probably the most misunderstood -- of wrongful convictions.  Here's the beginning:

At the Keen Mountain Correctional Center, a gray complex of poured concrete in rural southwest Virginia, Joseph Jesse Dick Jr. sits behind the thick glass pane of a prison interview booth like a specimen in an oversize shadow box. A man of delicate bearing with receding reddish brown hair, a sparse mustache and rectangular prison-issue glasses a bit wide on his long, gaunt face, Dick is here because he pleaded guilty to the 1997 rape and murder of his neighbor Michelle Moore-Bosko — a crime he now says he didn’t commit. And maybe he didn’t. Such proclamations of innocence are no longer surprising. The imprisoned man exonerated by DNA evidence or a belated confession by the actual killer or the emergence of a credible alibi witness is a narrative of increasing familiarity. But even in the upside-down world of wrongful convictions, the extravagant case of Joseph Dick and his supposed partners in crime is in a class of its own.

To conclude that Joseph Dick is innocent, you must first believe that the tape-recorded confession he gave to the police was untrue and, second, that three other men who said they committed the brutal crime with Dick also falsely confessed. In addition, you must believe that Dick perjured himself when he helped convict two of those co-defendants by testifying against them at their trials for rape and murder, lied when he named five other accomplices and lied moments before a judge gave him a double life sentence when he apologized to the parents of Michelle Moore-Bosko, declaring, “I know I shouldn’t have done it; I have got no idea what went through my mind that night, and my soul.”

This is a lot to accept. But perhaps the most astonishing aspect of this case is that these may be the most logical conclusions to draw. When I met Dick, who is now 31, at Keen Mountain in January, he told me he had proclaimed to investigators his innocence of any involvement in the crime for more than seven hours. During that interrogation, he claimed in an affidavit, Robert Glenn Ford, a Norfolk police detective, taunted him incessantly, told him he was lying, shouted at him, threatened him with the “hoses” and told him he would get the death penalty unless he cooperated. Dick told me that he finally gave Ford the confession he demanded, “to avoid the death penalty.”

Berlow also reported the outstanding 2002 documentary, Deadly Decisions, and in 2003, authored, The Texas Clemency Memos in The Atlantic.  That was for many the first real introduction to Alberto Gonzales.

Innocents In Prison

That's the title of Stuart Taylor's latest Opening Arguments column in National Journal.

As recently as 20 years ago, it was extraordinarily rare for a convicted prisoner to establish his or her innocence conclusively enough to get public attention. That changed with breakthroughs in DNA science.

The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners -- including 15 who had been sentenced to death -- have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey's and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

The kind of DNA evidence that can conclusively prove innocence or guilt is available only in a small fraction of cases, mainly rapes and rape-murders in which sperm is recovered. But these cases are the tip of the iceberg. Extrapolation from DNA and other exonerations suggests that the overall error rate in violent-crime prosecutions is probably much higher than the estimates of less than 1 percent offered by many criminal-justice officials.

In a stunning non-DNA case that shows how low law enforcement can go, a federal District judge in Boston ordered the government on July 26 to pay $102 million in damages to victims of the FBI's "outrageous" role in framing four men for a 1965 gangland murder. The four spent a combined total of 109 years in prison. Two died there.

And:

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes. And an unknown number of innocents have not been exonerated.

Does this suggest that we may have 50,000 innocent prisoners (2.3 percent times 2.2 million) in this country? Possibly, but not necessarily. Gross and Barbara O'Brien of Michigan State Law School stress in another forthcoming article that capital cases (and the DNA exonerations) are not representative of false convictions in general.

On the one hand, for example, the percentage of actual innocents may be higher among capital murder defendants -- virtually all of whom go to trial -- than among the 90 percent of violent-crime defendants whose cases end in plea bargains.

On the other hand, a much higher percentage of, say, robbery convictions than of capital murder convictions are based on unreliable eyewitness identifications. So perhaps the robbery error rate is much higher than 2.3 percent. And it's clear that most people wrongly convicted of lesser crimes are far less likely to win exoneration than are death-row inmates (who get much better post-conviction legal representation) and rape convicts (when DNA evidence is available).

Gross and others have also found that a very disproportionate number of exonerated prisoners are black or Hispanic. Discrimination no doubt accounts for some of this. So does the especially high error rate in cross-racial identifications, which creates special risks for black men wrongly accused of raping or robbing white people.

And:

The good news, according to the Innocence Project, is that 42 states and the District of Columbia now require that inmates be given access to any DNA evidence; 22 (plus D.C. and the federal government) require preservation of DNA evidence; and 22 (plus D.C. and the federal government) compensate victims of false convictions.

But only three states (and some cities) have adopted the reforms to eyewitness procedures -- such as excluding officers who know which person is the suspect, among other safeguards -- that experts say are necessary to prevent false identifications. And only the District of Columbia, nine states, and some 500 localities keep police honest by requiring them to tape interrogations.

Study of Wrongful Convictions Raises Questions Beyond DNA

That's the title of Adam Liptak's Sidebar column in the July 23 New York Times.  LINK

When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

But a new study does. Brandon L. Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them was at least flawed and often false — yet juries, trial judges and appellate courts failed to notice.

“A few types of unreliable trial evidence predictably supported wrongful convictions,” Professor Garrett concluded in his study, “Judging Innocence,” to be published in The Columbia Law Review in January.

The leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant.

Faulty forensic evidence was next, present in 55 percent of the cases. In some of those cases, courts put undue weight on evidence with limited value, as when a defendant’s blood type matched evidence from the crime scene. In others, prosecution experts exaggerated, made honest mistakes or committed outright fraud.

Most of the forensic evidence involved problems with the analysis of blood or semen. Forty-two cases featured expert testimony about hair, an area that is, Professor Garrett wrote, “notoriously unreliable.”

Informants testified against the defendants in 18 percent of the cases. (In three cases, it turned out they had an unusually powerful motive for their false testimony, as DNA evidence proved they were in fact guilty of the crime they had pinned on the defendant.)

There were false confessions in 16 percent of the cases, with two-thirds of those involving defendants who were juveniles, mentally retarded or both.

Judging Innocence is available in Adobe .pdf format here.

Establishing Innocence or Guilt

Mark Smith and his colleagues at the Center for American and International Law will be hosting its second Annual Conference on Actual Innocence in Plano, August 15-17.  Details are here.  CLE credit has been approved.

The Center has been conducting excellent programming.  On January 23, 2005, Fifth Circuit Court of Appeals Judge Patrick Higginbotham co-authored an OpEd in the Dallas Morning News praising the Center's work.  Here's an excerpt:

The criminal justice system in Texas and how it deals with death penalty cases are under the microscope like no time in history.

During the past three years, the U.S. Supreme Court has reviewed seven capital cases from the Lone Star state. It reversed all seven. The justices' criticism has been directed at all three participants in the system – criminal defense lawyers, prosecutors and judges.

Isolated examples? Hardly.

The Supreme Court and the lower courts have overturned 165 Texas death penalty convictions or sentences since capital punishment was reinstated three decades ago.

The cases include instances in which defense attorneys slept through trial, came to court intoxicated, or did very little work on their clients' behalf. There are cases in which prosecutors withheld evidence or allowed witnesses to fabricate testimony. And there are cases in which judges misinterpreted the law, mishandled jury selection, or issued flawed jury instructions.

And:

Taking a giant first step, the Center for American and International Law, a nonprofit corporation that promotes continuing legal education, has created a series of 14 programs in 2005 to educate and train the three key critical players identified by the Supreme Court as needing to do a better job in capital cases.

Next week, more than 60 criminal defense lawyers from across Texas will gather at the center's new headquarters in Plano to learn the latest trial techniques and legal arguments in order to better represent defendants facing the death penalty. Texas trial judges will meet in the same rooms in the spring to be educated about recent developments and trends in death penalty law so that they properly handle a capital murder case. Prosecutors will follow the judges a few weeks later.

Reform Is Critical

That's the title of an OpEd in this week's National Law Journal by our colleague John Terzano at the Justice Project.  LINK

Kirk Bloodsworth, Darryl Hunt and Chris Ochoa: These men are just three of the hundreds of wrongly convicted who languished for years in prisons across our country for crimes they did not commit. The devastation they suffered is immeasurable: During the time they were wrongly imprisoned (for murder and other crimes in Maryland, North Carolina and Texas, respectively), their livelihoods were destroyed, and they suffered the loss of family members, friends and homes. The costs to public safety are great as well — while they were wrongly incarcerated, the actual perpetrators remained free to commit more crimes.

The errors that led to the wrongful convictions of these three men are not unique to their cases. Indeed, it is no longer a mystery why wrongful convictions occur: Study after study has shown that faulty eyewitness identification, false confessions, bad lawyering on both sides (egregiously incompetent defense counsel and just as egregious prosecutorial misconduct), snitch and accomplice testimony, and faulty forensics are some of the key common causes of wrongful convictions in both capital and noncapital cases.

We have also learned that most of the changes required to greatly improve the accuracy of our criminal justice system are not unreasonably time-consuming or costly. To the contrary, these reforms would entail minimal effort and resources when compared to the risks posed by an inaccurate, unfair system. So, the question remains: Why aren't states doing everything they can to ensure that the right people are being convicted and that the innocent are protected? The short answer is that change is not always welcome and when it is, change is often slow. In some instances, it would require an overhaul of long-standing procedures, which is why it is necessary to convince lawmakers that a fairer and more accurate criminal justice system is feasible. Ultimately, it is in the best interest of the defense, the prosecution and the public that strong safeguards exist to protect against wrongful imprisonment and reduce the number of overturned convictions.