The StandDown Texas Project

Ohio Supreme Court Clarifies Post-Conviction Access to DNA Testing

 The Ohio Supreme Court ruling in Ohio v. Noling is available in Adobe .pdf format.

Carrie Wood, a staff attorney with the Ohio Innocence Project, and counsel for Tyrone Noling has issued a statement, "Ohio Supreme Court’s Decision to Return the Case to the Trial Court to Consider Whether to Grant DNA Testing."

“We are pleased that the Ohio Supreme Court remanded Tyrone Noling’s case to the trial court to consider whether to grant DNA testing in this case. Mr. Noling has spent more than 15 years on death row for two murders he did not commit. We hope that the trial court will order DNA testing of the cigarette butt found at the crime scene and order the results of this new testing be uploaded to the CODIS database for comparison.  We also hope that the trial court orders a search for all evidence collected from the crime scene so that the lab might DNA test any additional items the perpetrator may have touched.

“The DNA testing of the cigarette butt may provide another piece of important information that supports Mr. Noling’s innocence. No physical evidence connects Mr. Noling to the crime. In fact, the physical evidence that exists excludes him as the perpetrator. All of the principal witnesses against Mr. Noling have recanted their testimony. The witnesses said they testified falsely against Mr. Noling because they were threatened with the death penalty or prison sentences if they did not. The prosecutors in this case wrongfully withheld evidence that indicates someone else committed the crime.

“DNA testing is an important step in helping to identify the person responsible for this crime and resolving the case. Ohio must not continue to keep an innocent man on death row.”

Associated Press coverage is, "Ohio high court clarifies DNA re-testing, orders reconsideration of death row inmate's request," by Kantele Franko.  It's via the Republic.

A trial court should reconsider an inmate's request for new DNA testing on a cigarette butt found near the scene of a double murder for which he was sentenced to death, the Ohio Supreme Court said Thursday in a ruling that clarifies the handling of post-conviction DNA retesting requests.

In the 5-2 decision, justices said a lower court was wrong to deny Tyrone Noling's second request for new testing without considering the context of updated statutory requirements. Those requirements were enacted in 2010, after Noling's first retesting request was rejected but months before the second was made.

Noling was convicted of killing Bearnhardt and Cora Hartig at their Portage County home in 1990, but he maintains his innocence.

Pretrial testing showed Noling and his co-defendants hadn't smoked the cigarette, which was found on the Hartigs' driveway. Noling contends technological advances make it possible to identify the smoker and determine whether that person was among other previously undisclosed suspects.

The court said the amended criteria allow DNA retesting under certain conditions, including if it would reveal new information that an earlier test couldn't.

An attorney for Noling said his defense team is hopeful the lower court will order new DNA testing, calling it "an important step in helping to identify the person responsible for this crime and resolving the case."

"Death Row Inmate Wins Case for New DNA Testing," by Mike Wagner in the Columbus Dispatch.

Convicted inmates still trying to prove their innocence from Death Row and elsewhere in Ohio’s prison system received an assist from the Ohio Supreme Court yesterday.

The court ruled 5-2 that a Portage County court must reconsider DNA testing for Death Row inmate Tyrone Noling, who was convicted in 1996 of murdering an elderly couple in their home.

The ruling says that Noling’s current request for testing shouldn’t have been dismissed simply because he previously was denied testing. The ruling also said that the local court didn’t take into account new standards and expanded criteria for testing approved by Ohio lawmakers in 2010.

The decision will have significance in other Ohio post-conviction cases, mainly because it reaffirms the new state law that encourages more testing if the evidence is significant to the case and to take advantage of advances in DNA-testing technology.

“Noling contends that (the state law) significantly changed and expanded the criteria for permitting further DNA testing. We agree,” wrote Justice Judith Ann Lanzinger, who wrote the court’s decision.

The decision also confirmed the Supreme Court’s right to hear appeals of a trial court’s denial of DNA testing in all Death Row cases.

"Portage court must reconsider DNA request in 1990 double murder case," by Ed Meyer and Stephanie Warsmith in the Akron Beacon Journal.

A Portage County death-row inmate scored a victory Thursday in his fight for new DNA tests of crime scene evidence from a 1990 double murder with an Ohio Supreme Court decision ordering a lower court to reconsider the issue.

The high court’s ruling does not grant Tyrone Noling new testing of a cigarette butt found at the scene of the murders, but it does require the trial court in Portage County to take another look at it.

“A trial court must consider current versions of statutes in ruling on an inmate’s application for new DNA testing of biological material in a death penalty case,” the court said in its majority opinion.

The wording refers to a law passed by the Ohio Legislature in July 2010, which opened the way for DNA retesting — using the latest technology — if it can be shown the tests could determine the true perpetrator.

"Death Row Inmate Tyrone Noling Can Request New DNA Test," by Peter Krouse for the ''Cleveland Plain Dealer.

The Ohio Supreme Court has cleared the way for a death-row inmate to request additional DNA testing on a cigarette butt that he hopes will clear him of a 23-year-old double homicide in Portage County.

The high court, citing a 2010 amendment to state law that allows for limited retesting of DNA -- ordered a trial court to consider Tyrone Noling's request for additional testing of the cigarette butt. (See the ruling below. Mobile users can see it here.)

Prior testing of saliva on the butt, which was found in the driveway of murder victims Bearnhardt and Cora Hartig in 1990, determined that Noling was not the source of the DNA.

Noling, who was convicted of the murders, wants to retest the evidence in light of advanced procedures that could determine if another man's DNA is present in the saliva.

In 2008, a court refused to order retesting of the cigarette butt because Ohio law at the time prevented DNA from being retested if a prior test produced "definitive" evidence. The court determined that the test that ruled out Noling and his co-defendants as the source of the DNA was such a test.

Earlier coverage of Tyrone Noling's case begins at the link.

George Will on the Central Park Five Exoneration

Washington Post syndicated columnist George F. Will writes, "‘Central Park Five’: Recalling a gross injustice."

From Tom Paine’s “Common Sense” to Harriet Beecher Stowe’s “Uncle Tom’s Cabin” to Martin Luther King’s “Letter from Birmingham Jail,” American history is replete with examples of printed words accelerating social justice. Still, from Mathew Brady’s 1862 photo exhibit of “The Dead of Antietam” to the televised fire hoses and police dogs in Birmingham, Ala., in 1963 to the cameras that brought Vietnam into American living rooms, graphic journalism has exercised unique power to open minds and hence shape history. It may do so Tuesday evening when PBS broadcasts “The Central Park Five,” a meticulous narrative of a gross miscarriage of justice.

There were abundant dystopian aspects of New York City in the 1980s, when crime, crack and AIDS produced a perfect storm of anxiety about the fraying social fabric. This was the context — a city on edge — when on April 19, 1989, a 28-year-old white woman who worked on Wall Street went for a jog after dark in Central Park. She became a victim of what was immediately called “wilding,” a word probably unknown by the four blacks and one Hispanic, ages 14 to 16, who were arrested and charged with raping her and beating her nearly to death.

And:

Journalism, like almost every other profession relevant to this case, did not earn any honors. Until now. The only solace to be derived from this sad story is that it now is a story memorably told. A society’s justice system can improve as a result of lurches into officially administered injustice. The dialectic of injustice, then revulsion, then reform often requires the presentation of sympathetic victims to a large audience, which “The Central Park Five” does.

Finally, this recounting of a multifaceted but, fortunately, not fatal failure of the criminal justice system buttresses the conservative case against the death penalty: Its finality leaves no room for rectifying mistakes, but it is a government program, so . . .

More on Ken Burns' documentary, "Justice and the Central Park Five," at the PBS website.  It airs Tuesday evening, April 16. Check your local schedule for the time in your market.

Related posts are in the documentary index.

An Update on the Norfolk Four

Adam Liptak's latest Sidebar column in today's New York Times is, "Out of Prison? For Some, That Might Mean Out of Luck."  Here's the beginning:

Eric C. Wilson is no longer behind bars. But he is not free.

Mr. Wilson is one of the sailors known as the Norfolk Four, and there is every reason to think he is innocent of the rape charge that sent him to prison for more than seven years. But the conviction stands, and that means he must register as a sex offender.

He wants to clear his name, and last week the Supreme Court indicated interest in his case. All Mr. Wilson asks for is a hearing on his challenge to his conviction. But lower courts have slammed the door on him, reasoning that it is too late to consider a petition for a writ of habeas corpus because he is no longer in custody.

Mr. Wilson is working as an electrician in Texas. He was composed and polite when we spoke on Friday evening, though he sounded weary of talking about his lot. He would rather, he said, get ready for the Easter weekend. He had family coming in.

But it takes time to tick off all the ways in which the effects of his conviction will linger for the rest of his life. There is the stigma, of course. He must report to the police in person every year, keep them posted about changes in his life and check in with local authorities if he travels.

Then there are the blows that really sting. He is not eligible for jobs on many government sites. He wanted to go to Niagara Falls for his honeymoon but could not get a passport to cross to the Canadian side. He cannot adopt his young stepson.

Earlier coverage of the Norfolk Four case begins at the link.

9th Circuit Overturns Conviction of Arizona Woman on Death Row 22 Years

The U.S. Court of Appeals for the Ninth Circuit ruling in Milke v. Ryan is available in Adobe .pdf format.

"Convictions of woman on Ariz. death row overturned," is the Arizona Republic report written by Michael Kiefer.

Debra Milke was a celebrated villain of 1989, a woman accused and convicted of dressing up her 4-year-old son to see Santa Claus and, instead, sending him off to be shot execution-style in a desert wash.

She is one of three women on Arizona’s death row.

But on Thursday, a three-judge panel of the 9th U.S. Circuit Court of Appeals threw out her death sentence and murder conviction because the trial court refused to let her introduce evidence that might have discredited her supposed confession.

The Phoenix police detective who claimed Milke confessed to him had a history of lying to grand juries and extracting confessions even from unconscious suspects on hospital gurneys, according to the court opinion. There were no witnesses to the confession, and it was not recorded. Milke denied she ever confessed.

The 9th Circuit asked the U.S. District Court to send the case to the Arizona court system for a new trial and ordered that the detective’s personnel files be made available for Milke’s defense.

Assistant Arizona Attorney General Jeffrey Zick said his office will likely ask a larger panel of 9th Circuit judges to rehear the appeal before taking it to the U.S. Supreme Court.

The AP report is, "Woman on death row 22 yrs. sees convictions overturned," via the Arizona Daily Star.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Thursday that the prosecution failed to disclose information about a history of misconduct by a detective who testified that Milke confessed to plotting her son's murder.

"Some of the misconduct wasn't disclosed until the case came to federal court and, even today, some evidence relevant to (the detective's) credibility hasn't been produced," the ruling said. "In the balance hangs the life of Milke, who has been on Arizona's death row for 22 years."

The ruling reversed a U.S. district judge's ruling and ordered the lower court to require Arizona authorities to turn over all relevant personnel records on the detective.

Once the material is produced and defense lawyers have time to review it, prosecutors will have 30 days to retry her. If they don't, she will be released from prison.

Earlier coverage from Arizona begins at the link.  Related posts are in the prosecutorial misconduct index.

Baltimore Sun: The Case Against Capital Punishment

That's the title of the Baltimore Sun editorial.  It has the sub-head: "The death penalty is arbitrary, prone to error, hard on the families of murder victims and ultimately immoral."

The Maryland Senate's vote today to repeal the death penalty was a milestone in an effort to remove from the law a sentence that puts vengeance above justice, fails to deter crime and provides for the families of victims not the closure they crave but instead years of frustration and heartache. With the 27-20 vote — a solid majority that included two Republicans and 25 Democrats — repeal supporters are already looking ahead to the possibility that Maryland could provide momentum for ending capital punishment in other states, and ultimately help convince the Supreme Court that the death penalty is cruel and unusual.

And:

Proponents of capital punishment contend that it affords true justice for the families of murder victims. But as a practical matter, it offers years of frustration and heartache. Death is the one punishment that cannot be taken back, so the criminal justice system has no choice but to afford substantial opportunities for post-conviction review. The decades of delay in the cases of some Maryland death row inmates are unusual, but the average time from sentencing to execution nationally is nearly 15 years, according to the most recent figures from the Bureau of Justice Statistics.

Finally, and most profoundly, is the moral question. Is it right for the state to punish killing by killing? Capital punishment proponents say yes, that some people commit crimes of such profound evil that they forfeit their right to live in our society. But that can be accomplished with a sentence of life without the possibility of parole. Capital punishment serves not to render judgment on a killer's humanity but to diminish ours. It should be abolished.

Here are links to addtional news coverage of yesterday's vote by the Maryland Senate to repeal the state's death penalty.

Today's Wall Street Journal reports. "Maryland Moves to End Executions." It's by Ashby Jones.  There is an infographic at the link.

Maryland's Senate voted on Wednesday to repeal the death penalty, moving the state closer to becoming the sixth since 2007 to abolish capital punishment.

The vote in Maryland came amid deepening uncertainty over the death penalty, which was reinstated in many states after it was upheld as constitutional by the U.S. Supreme Court in 1976.

While Maryland and 32 other states retain the power to sentence inmates to death, capital punishment faces a host of challenges, from the growing number of exonerations of convicts—often because of new DNA evidence—to the cost of prosecuting capital defendants to shortages of drugs used in lethal injections.

Since 2007, the death penalty has been abolished in five states: Connecticut, Illinois, New Jersey, New Mexico and New York.

"Maryland takes step to end capital punishment," is the Los Angeles Times report by Michael Muskal.

"Senate votes 27-20 to abolish death penalty," is by Steve Lash of the Daily Record.  There is a roll call listing of the final Senate vote at the link.

AFP posts, "Maryland moves to abolish death penalty," written by Romain Jeanticou in Washington, DC.

Earlier coverage of the historic Maryland Senate vote begins at the link.

More From Andrew Cohen on the Case of Tyrone Noling

"Can Ohio Handle the Truth About The Tyrone Noling Case?" is Andrew Cohen's latest post at the Atlantic.

There are four hard truths in Tyrone Noling's unenviable life. The first three form a part of his past that he can never get back: bad choices and decisions he made, or that were made for him, which have put him where he is today. The fourth truth is the biggest part of his present, and will surely determine his future -- or whether he even has a future. Noling is on Ohio's death row, and has been since 1996, for a crime he says he didn't commit; a crime to which he is linked by so little reliable evidence that a federal appeals court last year went out of its way to express "concern" about the accuracy of Noling's conviction.

The first truth in Tyrone Noling's life is that an elderly couple named Cora and Bearnhardt Hartig were murdered in their home in 1990. The second is that Noling, then a teenager, was convicted of the murders despite passing a lie detector test -- even though there was no physical evidence linking him to the Hartigs and the witnesses against him, co-defendants, were so unreliable that prosecutors initially dropped the charges against him. The third truth about Noling is that Ohio won't allow his attorneys to DNA test a cigarette found at the scene, evidence, the defense suggests, which might determine who might have killed the couple.

The fourth truth is unfolding now. Last Tuesday, for about half an hour, the Supreme Court of Ohio heard oral argument in the Noling case. His lawyers are asking the justices to recognize a broad application of a new state law designed to encourage DNA testing in cases like these. Prosecutors, claiming the butt is irrelevant, are asking the justices to preclude any further testing on the cigarette. Here is the video of the January 8th argument. If you have the time, it's well worth watching as a prime example of how infrequently appellate judges and lawyers talk about justice in our criminal justice system.

Earlier coverage of Tyrone Noling's case begins at the link.

Akron Beacon Journal on the Tyrone Noling Case

"Execution at a higher standard," is the Beacon Journal editorial written by Michael Douglas, the paper's editorial page editor.

In June 2011, the federal appeals court in Cincinnati said no to Tyrone Noling. The resident of death row had asked the court to allow DNA testing driven by new evidence in a case that dates to 1990, a double murder, Cora and Bearnhardt Hartig killed in their house in Atwater Township.

Judge Boyce Martin explained that according to the law, there wasn’t room for granting the request. The ruling affirmed the district court. Yet, in doing so, it proceeded to take a revealing detour — pausing “for a moment to highlight our concern about Noling’s death sentence in light of questions raised regarding his prosecution.”

Martin devoted a passage to the doubts that hover, and increasingly so, about whether Noling killed the Hartigs. The judge reminded that Noling was not indicted until five years after the crime “when a new local prosecutor took office.” He added that the accusers have recanted their stories and “now claim they only identified Noling as the murderer … because they were threatened by the prosecutor.”

Know, as the judge emphasized, that “there is absolutely no physical evidence linking Noling to the murders, and there are other viable suspects that the prosecutor chose not to investigate or did not know of at the time.” Finally, Martin noted that “given the serious questions that have been raised regarding Noling’s prosecution, we wonder whether the decision to end his life should not be tested by a higher standard.”

And:

All of this makes obvious the value of the DNA analysis, and it’s just what lawmakers had in mind when they acted. It also suggests that higher standard, the case against Tyrone Noling having frayed for years, an execution far from fitting. As Judge Martin reminded: “As long as our justice system depends on men and women to make decisions, it will invariably make mistakes.”

The challenge is to correct them before it is too late.

The Legally Speaking Ohio blog has additional, in-depth coverage, "What’s On Their Minds: How Many DNA Tests Can A Prisoner Get? State v. Tyrone Noling."  It's written by Marianna Brown Bettman.

On January 8, 2013, the Supreme Court of Ohio heard oral argument in State v. Tyrone Noling. There are two issues in this case.  The substantive issue is whether an application for post conviction DNA testing filed under an earlier statute bars a trial court from reviewing a later DNA testing application filed under a new statute with more liberal acceptance criteria.  Read the oral argument preview of this part of the case here.

The second issue, on which the Court requested supplemental briefing after accepting the case, is whether the Supreme Court has jurisdiction to hear this case.  Under  R.C. 2953.73, a trial court’s rejection of an application for DNA testing filed by a person who has been sentenced to death must be appealed directly to the Ohio Supreme Court. That is what Noling did in this case.  But under State v. Davis, 131 Ohio St.3d 1 (2011) the Supreme Court held that courts of appeals have  jurisdiction to hear the appeal of a trial court’s denial of a motion for a new trial based on newly discovered evidence in a case in which a death penalty has been imposed. Read the oral argument preview of this part of the case here.

Earlier coverage of Tryone Noling's case begins at the link.

Oral Arguments Coverage from Ohio DNA Case

"Ohio Supreme Court hears request for DNA testing that Portage County death row inmate hopes will clear him," is by Aaron Marshall for the Cleveland Plain Dealer.

A cigarette butt found in the driveway of a murder victim could be a key piece of evidence in overturning the conviction of death row inmate Tyrone Noling, the Ohio Supreme Court was told Tuesday by an attorney fighting to free him.

The cigarette butt was the focus of a hearing before the state's highest court as attorneys for the Portage County convicted killer argued that the court should order DNA retesting in his case -- something lower courts have twice stopped from happening.

"Tyrone Noling is innocent and is sitting on death row," said Carrie Wood, an attorney for Noling, after the morning hearing. "He is entitled to this testing. At some point, the question becomes, why is the prosecutor fighting so hard to deny him this evidence?"

Police found the cigarette butt when they investigated the 1990 murder of Bearnhardt and Cora Hartig. They were found dead of gunshot wounds on the floor of ther kitchen in Atwater Township.

There is no physical evidence linking Noling to the murders. He was convicted largely on the testimony of three men, all of whom have since recanted, saying they lied to avoid a death sentence.

Prosecutors say retesting isn't needed -- it won't prove who murdered the elderly couple and is nothing more than a delaying tactic for Noling as he sits on death row.

"If DNA is a truth-finding resource, we are all for it," said Portage County Prosecutor Vic Vigluicci. "But at some point these repeated requests -- this is the third time now -- are done just to delay the executions and not to seek out the truth."

While saliva found on the cigarette butt was tested for DNA back in 1996, the results only excluded Noling and his co-defendants as possible matches. With new technology, the DNA on the butt could now be matched with a specific individual's DNA.

The Akron Beacon Journal reports, "Ohio Supreme Court weighs DNA testing for inmate convicted in 1990 slaying of Portage County couple."  It's by Ed Meyer.

Prosecutors told the Ohio Supreme Court Tuesday morning that even if such testing were granted, it would be meaningless.

Tyrone Noling, now 40, was convicted and sentenced to death in the shootings of an elderly couple, Bearnhardt and Cora Hartig, at the kitchen table of their Atwater Township home.

Initial DNA testing of the butt — found on the Hartigs’ driveway — already excluded Noling and one of his three co-defendants, according to evidence at his 1996 trial.

Portage County Prosecutor Victor V. Vigluicci stressed that point as justices questioned both sides on the long-debated issue.

Even if the cigarette butt points to the DNA of another man, Vigluicci argued, such a finding would prove nothing because “somebody [could have] flicked a cigarette butt out of their car as they passed the Hartigs’ home. It has nothing to do with the crime scene.”

Justice Judith Ann Lanzinger then asked whether the crux of the issue was a “different animal” — not simply excluding Noling and one of his co-defendants, but “absolutely identifying a specific person.”

Vigluicci replied: “If this was DNA that was found on the victim, or semen, or [saliva], or blood or something tested initially and it was inconclusively determined, ‘We don’t know who it is,’ then you’re right. Then it would be important, but that’s not this animal.”

After 38 minutes of oral arguments — eight minutes over what had been the allotted time for both sides — Chief Justice Maureen O’Connor said the matter would be taken under advisement.

The high court’s decision, likely months away, would not actually grant Noling new testing of the cigarette butt. What it would do, as the defense has requested, is send the issue back to a lower court for reconsideration.

There have been two previous denials of a new round of tests in Portage County Common Pleas Court — based on Noling’s exclusion as the contributor of the DNA on the butt.

"Alliance man on death row pins hopes on DNA test," is the Canton Repository report by Ed Balint.

Carrie Wood, an attorney with the Ohio Innocence Project, said she wants to determine if the cigarette butt matches the DNA profile of Daniel Wilson that is stored in a federal database.

Wilson, convicted of murder in another case, was executed in 2009. He lived near the elderly couple’s home. Wood said that a previous DNA test did not exclude Wilson as the source. Testing technology has advanced since then and can pinpoint DNA to one person, she said.

At issue was whether state law allows more DNA testing in the case.

Under a law passed by the Ohio General Assembly in 2010, biological evidence can be retested if there’s a strong likelihood the results would determine the perpetrator of the crime.

State law allows for “more DNA testing, not less,” Wood said.

The Aurora Advocate report is, "Ohio Supreme Court hears arguments in Portage County murder case," by Marc Kovac.

Noling was convicted for the April 1990 murder of the Hartigs, an elderly couple found shot to death in the kitchen of their home in Atwater.

Noling was twice indicted for the crime and convicted about five years later, based on testimony of three other young men who were involved with him in a string of robberies in Alliance, according to documents. He was sentenced to death for the crime.

But Noling has maintained his innocence throughout the proceedings, and his co-defendants recanted their testimony, according to a merit brief filed by Noling's legal counsel.

Noling also has argued that there is evidence of potential other perpetrators, including Daniel Wilson, who was executed in 2009 for the murder of a woman who he locked in the trunk of a car before setting it on fire.

Noling wants a cigarette butt found in the driveway outside the Hartigs home tested to see if it matches Wilson's DNA. Earlier tests by law enforcement determined the cigarette was not smoked by Noling or his co-defendants.

WKSU-FM, Cleveland Public Radio posts, "An Ohio case raises big questions about DNA and confessions," by M.L. Schultze.

Tyrone Noling has been on death row since 1996, when he was convicted of killing an elderly Portage County couple in their home six years earlier. He confessed to a role in killing Cora and Bearnhardt Hartig; so did his codefendants.

But they all recanted. And Noling’s lawyer, Carrie Wood, says another man confessed to the killing, not to police but to others.

Dan Wilson can no longer be questioned himself.

The state executed him in 2009 for locking his girlfriend in a trunk and setting the car ablaze. So Wood is pushing the state to test the DNA found on a cigarette butt in the Hartig’s driveway. Not because it will exclude Noling; that’s already been done. But because it could implicate Wilson.

Justice Paul Pfeifer was the state senator who was instrumental in reintroducing the death penalty in Ohio. He’s since become one of its biggest critics. But during oral arguments, he was the justice who pressed Wood the hardest on why anyone would confess to a crime he didn’t commit.

“There are a whole host of folks who want to take credit for this for some reason.”

“Mr. Noling’s three co-defendants, all at the time very young boys, have all since recanted those statements…one recanted prior to trial”

“Why would you admit to a double murder that implicates yourself? What’s the motivation for doing that?”

“There are a whole host of reasons why false confessions occur, your honor.  And there have been multiple cases where DNA shows that false confessions occurred. … And when you have young men under the threat of a death penalty, under intense interrogation, those are all factors.”

Earlier coverage of Tyrone Noling's case begins at the link.

The Need for DNA Testing Reform in the States

Texas provided inmates with a process for access to post-conviction testing of DNA evidence in 2001, in large measure due to a problematic case that received media attention.  Even with the vehicle of a Chapter 64 motion for testing written in law, testing was not automatic.  In situations where district attorneys opposed post-conviction testing, district judges routinely rejected those motions.

Texas has seen enough exonerations and problems, by now, that Texas law has been revised and attitudes have changed.  Michael Morton's exoneration, after the district attorney fought DNA testing for six years, is one of many cases that contributed to those changes.  This is one area where Texas' problems caused real change in Texas law and practices over the years.

"Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data," is Ethan Bronner's report in today's New York Times showing that there needs to be widespread reform of state DNA testing laws.

Convicted of robbing and raping an 83-year-old woman, Joseph A. Buffey at 19 was no one’s idea of a choirboy. A marijuana smoker and high school dropout, he was out thieving on the night in question 11 years ago and broke into the Salvation Army near the woman’s home to steal the bell-ringing money.

He confessed to the rape and was sentenced to 70 years in the maximum security prison here in southern West Virginia where road names end in “Hollow” and “Creek” and coal is king. But for much of the past decade he has claimed that he was pressed into the confession and a plea deal by the police and his lawyer. He said he never entered the victim’s home, never touched her.

After years of being ignored, Mr. Buffey recently learned that DNA tests from intimate material at the crime scene establish with certainty the identity of the rapist: another man incarcerated at a different state prison who had a history of assaulting women.

If proceedings go as his lawyers hope, Mr. Buffey’s story will be one more in the several hundred exonerations nationwide brought about partly by new DNA techniques, many involving false confessions. But it took 18 months of litigation to get the state to test the DNA against its database of felons, and Mr. Buffey’s lawyers say his case is therefore something more: proof that laws are needed to remove the databases from the exclusive grip of prosecutors and law enforcement to make them available to defense lawyers.

“There is incredible exculpatory power in the databases that the government has spent hundreds of millions of dollars on over the years,” said Nina Morrison, a senior lawyer in the case. “But law enforcement runs the databases, and even when you go to court to force their hand, they throw up roadblocks. And judges say they don’t have the power to force them.”

Steven Benjamin, president of the National Association of Criminal Defense Lawyers, said getting access to these databases was a major concern and one that is on the agenda of his group’s winter meeting next month in Washington.

“This is a national problem, a huge and recurring one,” he said. “Juries expect the defense to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the government, but they act like it does. Unless the defense is given access to this information, the playing field remains uneven in criminal justice.”

Almost every state has a law permitting some post-conviction DNA testing (although the Supreme Court has ruled that it is not a constitutional right). But only nine — Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North Carolina, Ohio and Texas — have laws granting defendants access to the DNA databases, known as the Combined DNA Index System, or Codis.

Many legal experts, even some prosecutors, think that number needs to be greatly expanded as states and the federal government increase the size of the databases.

Related posts are in the DNA category index.

Electronic Recording of Custodial Interrogations

I hope to finish catching up on holiday news coverage by the end of the day.  On December 28, the Texas Tribune reported, "Inmate's Case Adds to Debate on Recorded Interrogations."  It was written by Maurice Chammah, and was also printed in the Texas edition of the New York Times. 

Max Soffar slurred his words in 1980 as he confessed to shooting two teenagers while robbing a Houston bowling alley, a confession that can be heard over the hisses and crackles of an audiotape. Only two hours of at least 26 hours of questioning over three days were recorded, according to the police officers who were at the interrogation.

Three decades and two trials later, Mr. Soffar, 57, maintains that he never committed the crimes — he says he confessed to shooting the two teenagers while trying to implicate someone else in the shootings at the bowling alley, in which three people were killed and another was injured. But Mr. Soffar also says he only has faint memories of the interrogation.

The investigators “took full advantage of someone who had no idea of the danger of the situation,” Mr. Soffar said recently from death row.

Prosecutors said that the evidence against Mr. Soffar was solid.

Mr. Soffar’s lawyers say his case highlights a broader debate about false confessions, and as they ask the United States Supreme Court to look at the case, Texas lawmakers are renewing a push to require police officers to record interviews in cases of violent crime.

And:

Richard A. Leo, who teaches at the University of San Francisco School of Law and has written several books on police interrogation procedures, analyzed Mr. Soffar’s tape and determined that officers in the case used verbal techniques like accusation, forceful pressure, repetition and confrontation.

All of these, Dr. Leo wrote in an affidavit, “create a risk of eliciting false confessions when misapplied to the innocent.” Mr. Soffar, sleep-deprived and coming down from drug use, was particularly susceptible, Dr. Leo said.

Earlier coverage of prefiled Texas legislation begins at the link.  Related posts are in the custodial interrogation and false confessions category indexes.

Earlier coverage of Max Soffar's long and tangled case is also available.

Geoffrey Stone & Thomas Sullivan on Recording Custodial Interrogations

U Chicago Law prof Geoffrey Stone posts,  "A Sure Way to Improve Criminal Justice: Record Confessions."  It's co-authored by Thomas Sullivan, of Jenner & Block.  Here's an extended excerpt from the beginning of this must-read:

In 2003, following an exposé of several questionable "confessions" obtained by Illinois police which resulted in murder convictions and in some cases death sentences for persons who were later exonerated, legislation was proposed in the Illinois legislature to require custodial interrogations in homicide investigations to be electronically recorded. Barack Obama, then a little-known member of the Illinois Senate, took the lead in negotiating with members of the law enforcement community who opposed electronic recording.

After lengthy give and take, Illinois enacted a law requiring that custodial interrogations of individuals suspected of murder must be recorded from beginning to end. This was the first law of its kind in this country. Now, ten years later, legislation and court rules provide for electronic recording of custodial interviews in Alaska, Arkansas, Connecticut, District of Columbia, Illinois, Indiana, Maine, Maryland, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, North Carolina, Oregon, and Wisconsin. Other state legislatures and supreme courts are considering adopting similar laws. And exercising sound judgment, many police and sheriff departments throughout the nation now electronically record custodial interviews even when they are not legally required to do so.

The particular requirements vary somewhat from state to state. There are differences, for example, as to which suspected felonies trigger the recording requirement, what exigent circumstances can excuse non-recording, whether the recording must be audio or video, and whether a violation of the requirement mandates the presumed inadmissibility of the confession or merely a cautionary jury instruction. Although there may be one, uniform, ideal approach to these questions, there are also reasonable arguments to support the different approaches taken in various states.

After some hesitation and resistance, law enforcement's reception of these statewide recording mandates has become extremely positive. They recognize the many benefits of recording confessions: detectives are better able to concentrate on the interview rather than on note taking; there are no longer disputes about what was said and done during the interrogation; officers who might otherwise be tempted to play fast-and-loose with the rules are deterred from doing so; it is more difficult for interviewed suspects to bring trumped-up charges against police officers for alleged misconduct; and public confidence in the fairness of the criminal justice system is enhanced. All in all, this common sense reform has worked extraordinarily well.

Coverage of legislation recently introduced in the Texas Legislature is at the link.  Related posts are in the custodial interrogation and false confessions category indexes.

Texas Bill Prefiled to Require Electronic Recording of Custodial Interrogations

"Bill Would Require Police to Record Interrogations," is the Texas Tribune report by Maurice Chammah.

There are moments of the two-day police interrogation that led to Christopher Ochoa’s wrongful conviction — which resulted in his spending 12 years in prison before a 2002 exoneration — that will never be known. Not all of the interrogation that preceded Ochoa's false confession to the murder of Pizza Hut employee Nancy DePriest in Austin — and implication of his roommate, Richard Danziger — was recorded.

Some advocates argue that such false confessions could be prevented if police interrogations were recorded. SB 87 by state Sen. Rodney Ellis, D-Houston, would police require police to record the questioning of suspects in cases involving murder, kidnapping, human trafficking and some sex crimes.

“Recording an interrogation is the most accurate means of preserving what happened in an interrogation room and what a suspect actually said,” Ellis said in an email.

Texas law already requires in most cases that investigators tape the confession itself. But in the wake of a handful of exonerations involving false confessions, defense attorneys and other advocates worry that without a recording of the entire interrogation, they may never know how a false confession occurred. Nineteen other states and the District of Columbia already require such recordings.

While some prosecutors and police support the idea, others worry that it could be used to unfairly target law enforcement officers and that it would make it harder to convince a jury that a confession was valid in the absence of a recording. The bill includes a variety of exceptions to the rule, allowing for spontaneously-given confessions and faulty equipment, and advocates hope those will make police officers comfortable that the recording requirement would not undermine their work.

Requiring recorded interrogations was a suggestion of the 2010 Timothy Cole Advisory Panel on Wrongful Convictions, which made policy recommendations based on its review of overturned convictions. Among the panel's other suggestions was reforming eyewitness sidentification practices, and lawmakers approved legislation that aligned with that recommendation in 2011.

More on SB 87, including the text, is at the link.  The 83rd Texas Legislature convenes January 8th for its 140-day session.  The Texas Legislature Online website is a model of open, accessible information.  It allows individuals to track bills, committee meetings, and create alerts.  The Legislative Reference Library, located on the 2nd Floor of the Texas Capitol, also has a helpful website.

Related posts are in the custodial interrogation, false confessions, state legislation, and Texas Legislature category indexes.  More on the Timothy Cole Advisory Panel on Wrongful Convictions and its 2010 report, at the links.

Coverage of the 2011 Texas legislative session and its work on the Cole Panel recommendations is also available.

The Jermaine Wright Case in Delaware

"Death penalty case still stirring," is the Wilmington News Journal report written by Sean O’Sullivan.

The state’s effort to reinstate the death penalty against a man whose conviction was overturned 11 months ago is headed back to the Delaware Supreme Court.

Superior Court Judge John A. Parkins Jr. ruled Wednesday in a 15-page opinion that police and prosecutors did not provide critical information to attorneys who represented Jermaine Wright 20 years ago, as they were required to do.

Wright was convicted and sentenced to death for the 1991 slaying of liquor store clerk Phillip Seifert.

The ruling by Parkins essentially affirms his decision in January 2012 to overturn Wright’s conviction and death sentence.

Prosecutors appealed that decision, saying that Wright’s attorneys were aware of the evidence – relating to a similar robbery at a different liquor store on the night of the homicide – and the Delaware Supreme Court sent the matter back to Parkins for additional investigation.

And:

It is not clear if the Delaware Supreme Court will now rule on the appeal or ask for additional briefs or argument from attorneys.

Earlier coverage of Jermaine Wright's case begins at the link. 

Related posts are in the prosecutorial misconduct category index.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Louisiana Death Row Exoneration

Damon Thibodeaux is the 300th person in America exonerated by DNA evidence.  He's the 18th former death row inmate exonerated by DNA, according to records maintained by the Innocence Project.

"La. death row inmate cleared by DNA," is the AP report by Cain Burdeau, via KLFY-TV.

A 38-year-old man wrongly convicted of raping and killing his step-cousin in 1997 was released Friday from Louisiana's death row after DNA tests found him to be innocent.

Pam Laborde, a spokeswoman for the Louisiana Department of Corrections, said Damon Thibodeaux was released at about 12:30 p.m. after spending 15 years on death row.

Thibodeaux was sentenced to death by lethal injection for raping, beating and strangling his step-cousin, Crystal Champagne.

Barry Scheck, co-director of the Innocence Project, said Jefferson Parish prosecutors and Thibodeaux's defense lawyers worked together to analyze the evidence against Thibodeaux and concluded that Thibodeaux made a false confession.

"Angola death row inmate who gave false confession released after 15 years," is Paul Purpura's New Orleans Times-Picayune report.

A Marrero man who spent 15 years on Louisiana's death row for his wrongful conviction of raping and strangling to death 14-year-old Crystal Champagne under the Huey P. Long Bridge in 1996 walked out of the Angola prison a free man Friday. Damon Thibodeaux, 38, was cleared, attorneys announced, confirming what he has said since his arrest on July 20, 1996: He caved after nine hours of interrogation by Jefferson Parish Sheriff's Office detectives and confessed to a crime he did not commit.

Thibodeaux, then a 21-year-old offshore deckhand, immediately recanted after he was fed and rested, but it was too late, his attorneys have said. He was convicted of first-degree murder by a Jefferson Parish jury and sentenced to die solely on the confession he gave then-Maj. Walter Gorman and then-Sgt. Dennis Thornton, who are now high-ranking officers in the Sheriff's Office, according to court records.

Thibodeaux's release was kept under wraps until a state judge in Jefferson Parish unsealed court records detailing the case Friday, an action timed with his being processed out of the Louisiana State Penitentiary at Angola.

A press conference is planned in New Orleans this afternoon to announce and detail the exoneration.

In a joint statement, Thibodeaux's attorneys and District Attorney Paul Connick said an investigation had begun in 2007, after the defense team approached prosecutors with evidence they said showed the man was innocent. DNA testing was done, and witnesses were interviewed. Connick also consulted with Michael Welner, a nationally recognized forensic psychiatrist who concluded the confession was false.

Welner described Thibodeaux as being "of modest vulnerabilities who confessed falsely under an unremarkable police interrogation. The case illustrates how a suspect's acute guilty feelings and expression and clearly false statements in questioning can snowball with interrogators who would logically interpret these as signs of criminal responsibility."

Connick said in the statement that it is his "duty to make every effort to ensure that convictions are based on reliable evidence."

"I have concluded that the primary evidence in this case, the confession, is unreliable," Connick said. "Without the confession the conviction can't stand, and therefore in the interest of justice, it must be vacated.

You can read more about Damon Thibodeaux's case at the Innocence Project.

The Death Penalty Information Center maintains a list of exonerees of men and women who had been sentenced to death.  Once added, Damon Thibodeaux should be the 141st to be exonerated.

Related posts are in the exoneration and false confessions indexes.

Missouri Hearing for Reggie Clemons Concludes

"Missouri death row case sparks calls for broader reforms," is the AP report via the Kansas City Star.

Advocacy groups that rallied around Missouri inmate Reginald Clemons at the special hearing of his death sentence this week are calling for broader reforms of the criminal justice system.

Representatives from Missourians for Alternatives to the Death Penalty, the ACLU, the NAACP and the Justice for Reggie Campaign pointed to allegations that St. Louis police beat Clemons’ confession out of him and that a police report was altered to strengthen the prosecutor’s case.

Clemons, 41, was one of four men convicted in the rape and murder of sisters Julie Kerry, 20, and Robin Kerry, 19, in 1991.

This week, a special master appointed by the Missouri Supreme Court reviewed his case to help decide whether the conviction should be abandoned. Jackson County Circuit Judge Michael Manners still is collecting evidence to turn over to the high court with a recommendation.

"Special hearing in Chain of Rocks murder case concludes for the week," is the St. Louis Post-Dispatch report by Jennifer Mann.

A special review of Reginald Clemons' death sentence in the 1991 Chain of Rocks Bridge double murder case ended for the week on Thursday.

Lawyers for both sides intend to call at least one more witness each, which will be done through depositions out of the public eye.

The attorneys will then submit legal briefs by Dec. 1 to Jackson County Circuit Court Judge Michael Manners, who the Missouri Supreme Court appointed as "special master" to review the case.

After that, the parties may reconvene for final statements before the judge. Manners is expected to take several months before submitting all the evidence and a final recommendation to the high court, which would then begin its process of reviewing Clemons' appeal. 

Ultimately, the court could decide anything from upholding the conviction or vacating it, to ordering a new trial.

Mann also wrote, "Clemons' supporters say case highlights larger problems in criminal justice system," for the Post-Dispatch.

KWMU-FM, St. Louis Public Radio, posts, "Clemons's supporters question integrity of prosecution," by Julie Bierach.

Earlier coverage of Reggie Clemons' case begins at the link.

The Reggie Clemons Hearing in Missouri

The St. Louis Post-Dispatch is providing extensive coverage of Reggie Clemons' hearing in Missouri.  Today's updating coverage is, "Clemons testifies police beat him to get murder confession in Chain of Rocks case."  It's by Jennifer Mann.

Reginald Clemons, under a death sentence for a double murder in 1991, testified in court here this morning that police beat a confession out of him after telling him they "have ways of making people talk."

He denied on the witness stand that he had participated in the rape and murders of sisters Julie Kerry, 20, and Robin Kerry, 19, at the old Chain of Rocks Bridge. But he declined to elaborate.

While Clemons lawyers focused solely on how the confession was conducted, attorneys for the state Attorney General's Office went straight to what it contained: a detailed accounting of the rapes and murders of the young women that night.

Clemons asserted his Fifth Amendment rights against self-incrimination more than 30 times, to every single question about those events.

While allowed in criminal trials, there are repercussions to doing so in a civil proceeding, like this one.  

Jackson County Circuit Judge Michael Manners, who was appointed "special master"  to hear the case and make a recommendation to the Missouri Supreme Court, reminded Clemons of that risk after the questioning ended.

"You understand that the inferences I will draw from your testimony will be unfavorable to you," he warned Clemons. Clemons acknowledged he understood.

Manners' recommendation could range from upholding the death sentence, to ordering a new trial or reversing the conviction.

"Hearing for Reginald Clemons in 1991 Chain of Rocks murder case is delayed," also by Mann, was posted Tuesday.

A special review of Reginald Clemons' 1993 death row case has been delayed a day because of unspecified legal issues.

The "special master" hearing ordered by the Missouri Supreme Court began Monday and had been scheduled to resume Tuesday, but after about two hours in which attorneys met behind closed doors in the judge's chambers, a bailiff announced it would resume Wednesday morning. At that point, Clemons is expected to take the stand.

Clemons is one of four men convicted in the 1991 murders of Julie and Robin Kerry on the old Chain of Rocks Bridge.

On Monday the prosecutor who won convictions against the four had to fend off claims that he bolstered his case by having a police report altered and ignoring signs of police brutality.

Late Monday, a judge appointed to make a recommendation on the case to the Missouri Supreme Court was presented a video-taped deposition of Robert Baumann, who was captain of the St. Louis Police unit that investigated the double murder of Julie and Robin Kerry. Baumann, in response to Clemons' attorneys' questions, said he would consider it inappropriate to make changes to a police report.

Lawyers for Clemons on Monday also highlighted crime lab results — which they argue would have raised doubt of his culpability — that never made it into the 1993 trial in which their client was sentenced to death.

A stay of execution, 12 days before Clemons was to die in June 2009, paved the path for the information to be discovered, his attorneys said. Now they are hoping to convince the special master, Jackson County Circuit Judge Michael Manners, that it's enough to reverse Clemons' conviction, or at least to spare him from execution.

One of the others convicted has been executed, another is serving a life term and a third received early parole in exchange for testimony against the others.

"Clemons' lawyers claim he was coerced into confessing 1991 bridge murders," was posted Monday afternoon.

Attorneys for Reginald Clemons argued this morning that an altered police report, a coerced confession and withheld lab evidence cast doubt on the 1993 conviction that sent him to death row.

Lawyers from the Missouri attorney general's office disputed those characterizations and said many of the debated points have already been litigated.

Clemons, now 41, was one of four men convicted in the murders of Julie and Robin Kerry, sisters who were raped and forced to leap into the Mississippi River from the old Chain of Rocks Bridge on April 5, 1991. The women's cousin, Thomas Cummins, said that he was made to watch and then forced off the bridge himself. He alone managed to swim to shore.

Under interrogation in 1991, Cummins confessed the crime before recanting. His statements took center stage today, at the start of an evidentiary hearing to help determine whether Clemons' death sentence or even conviction might be overturned.

Clemons' lawyers produced a draft police report of Cummins' statements to detectives, which differed from a final report that was entered into the record at Clemons' trial.

Earlier coverage of Reggie Clemons' case begins with a preview of this week's hearing.

Monday Hearing in Missouri for Reggie Clemons

"Hearing may decide fate of man on Missouri's death row in Chain of Rocks case," is by Jennifer Mann in the St. Louis Post-Dispatch.  Here's the beginning of this thorough review of the issues in the case:

One is dead, one is on parole and one is serving a life term, but the fourth man convicted of throwing two sisters to their deaths off the Old Chain of Rocks Bridge two decades ago still has the court's attention in his bid for freedom.

Lawyers for Reginald Clemons, 41, will make their case here next week to a judge appointed by the Missouri Supreme Court to hear evidence and make recommendations on the claim he was wrongfully convicted.

The high court could do anything from leaving him on death row to throwing out his conviction.

The case has been watched by activists around the world, and is the primary focus of Amnesty International USA's Death Penalty Abolition Campaign, its director, Laura Moye said Thursday. She plans to be at the hearing. The organization plans a rally for Clemons on Saturday.

"We were very struck by a long list of problems with the case, which to us was emblematic of the worst things that can happen in a death penalty," Moye said. She recited complaints about police misconduct, a lack of physical evidence and reliance on shaky witness testimony.

Not all of it will necessarily be a rehash of old issues.

A DNA test on evidence that might have been overlooked at the time of the trial may surface during what is expected to be a weeklong hearing at the Carnahan Courthouse downtown. What it shows has never been publicly revealed; lawyers in the case are under a gag order.

The St. Louis American reports, "Clemons hearing is Monday," by Chris King.

Missouri death row inmate Reginald Clemons finally will have his new day in court on Monday, September 17 when Judge Michael Manners convenes a hearing in St. Louis. Manners is the Special Master appointed by the Missouri Supreme Court on June 30, 2009 to gather new evidence in the case and submit a report to the court.

The instigation of a new evidence phase in the Clemons case by a court that had recently set an execution date for him was startling. For many years, Clemons and his pro bono defense team have claimed that the trial court permitted inadmissible evidence and that relevant evidence has appeared since his conviction that calls the verdict into question.

Indeed, on the day Clemons was sentenced to death, the key witness against him, Thomas Cummins, settled a police brutality claim against the St. Louis Metropolitan Police Department. Clemons alleged almost identical acts of brutality by some of the same detectives working the same case. Clemons’ coerced confession was permitted in court and helped to convict him, whereas Cummins’ coerced confession was retracted and he was paid $150,000 to settle his claim.

Earlier coverage of Reggie Clemons' case begins at the link.

The Trial of Reggie Clemons

That's the title of a four-article series this week in the Guardian.  It's written by Ed Pilkington, reporting from Potosi, Missouri on a long-controversial death penalty case.  Most of the articles are accompanied with video by Laurence Topham.  It's a must-read series.

The four articles in the order of publication are:

"Death penalty on trial: should Reggie Clemons live or die?  Reggie Clemons has spent 19 years on death row. Next month his case will be reviewed for one last time in a hearing that cuts to heart of the debate about capital punishment in America."

Reggie Clemons has one last chance to save his life. After 19 years on death row in Missouri for the murder of two young women, he has been granted a final opportunity to persuade a judge that he should be spared execution by lethal injection.

Next month, Clemons will be brought before a court presided over by a "special master", who will review the case one last time. The hearing will be unprecedented in its remit, but at its core will be a simple issue: should Reggie Clemons live or die?

That question is as deadly serious as it sounds. One of Clemons's three co-defendants has already been executed, and Clemons himself came within 12 days of being put to death in 2009.

The Reggie Clemons case has been a cause of legal dispute for the past two decades. Prosecutors alleged that he and his co-defendants brutally cut short the lives of Julie and Robin Kerry, sisters who had just started college and had their whole adult lives ahead of them.

"Julie and Robin Kerry: anti-racism activists opposed to the death penalty."

Julie Kerry was 20 when she died, studying English literature at college. She devoured all sorts of poetry and ballads, from Chaucer to Sinead O'Connor. She and McClain volunteered for numerous causes together, working with groups on HIV and Aids and joining charity walks for the homeless.

Robin was equally passionate about social justice. The Christmas before they died, the sisters were so moved by a feature in the St Louis-Post Dispatch about needy families in the city that they announced they were each going to help out. In a matter of days they raised $600 and delivered several car loads of food and Christmas gifts to two of the families.

If Julie was a poet, Robin, a year younger, was a fighter. In her book A Rip In Heaven: a Memoir of Murder, Jeanine Cummins, a cousin of the sisters, recounts the story of how Robin dealt with a bully at her school who was picking on another pupil. "She simply could not stand by while this jerk tormented the little guy day after day. She slammed her locker, marched over to the bully, and punched him in the jaw."

"Reggie Clemons: 21 discrepancies that cast doubt on his conviction. 

Was Reggie Clemons' confession beaten out of him? We look at the discrepancies thrown up during the course of the prosecution.

"Reggie Clemons: 'I know, and God knows. I know I'm innocent'."

Reggie Clemons knows what it's like to prepare for imminent death. In 2008, he came within 12 days of execution by lethal injection. In May that year he was issued with a death warrant and for the next 18 days he sat and waited in his prison cell, a short dead-man-walking distance from the death chamber. It was, he says, "a real strange time."

"Each day was real slow. You're paying attention to each and every little detail – every crack on the floor, how your shoe strings are laying that day – because these might be the very last moments of your life."

Earlier coverage of Reggie Clemons' case begins at the link

The State of Electronic Recording of Custodial Interrogations

The March/April issue of Judicature, the publication of the American Judicature Society, contains the article, "A Compendium of law relating to the electronic recording of custodial interrogations," by Thomas P. Sullivan.  He's a partner at Jenner & Block in Chicago, and former U.S. Attorney.

Here's the introduction:

This compendium has been assembled in order to summarize in a single document the information my associates and I have collected during the past eight years relating to federal and state law and practices concerning electronic recording of custodial interviews of felony suspects.

When we began to investigate this topic in 2003, there were two supreme courts which previously ruled that state law enforcement officials must make electronic recordings of custodial interviews of felony suspects, Alaska and Minnesota. That year, Illinois became the first state to enact a mandatory electronic recording statute, limited to suspects in homicide investigations. Since then the legislatures of ten other states¹ and the District of Columbia have enacted recording statutes concerning electronic recording of custodial interrogations involving a variety of crimes. The supreme courts of two other states have adopted rules requiring recording.² In nine other states, the supreme courts and legislatures are considering whether to require electronic recording of custodial interviews of felony suspects.³

Following several years of study, conferences and drafting, the National Conference of Commissioners on Uniform State Laws in July 2010 adopted a comprehensive uniform state mandatory recording statute. Representatives of the Conference will work with the state uniform law commissions and interested stakeholders in those states that do not already have mandatory legislation or court rules, to pursue introduction and enactment of the uniform statute.

During the past seven years, my associates and I have made calls to over 1,000 police and sheriff departments throughout the United States to inquire about their practices in recording custodial interviews from beginning to end. With few exceptions, in the many police and sheriff departments we have contacted – those in states in which recording is required, and those in which recording is a voluntary practice – we have received enthusiastic support for recording expressed by experienced law enforcement personnel. We have obtained similar favorable endorsements from prosecutors and members of the judiciary. Those who do not record often warn of hypothetical dangers and downsides that are not mentioned by those that have experience with recording.

This Compendium describes our findings about the practices of the states and certain federal agencies with respect to recording custodial interrogations. It is divided into the following five parts:

Part 1 contains a summary of the benefits of electronic recordings of custodial interviews.

Part 2 contains a summary of the law and practice of each state with recording custodial interviews of suspects in felony investigations.

In the states in which recording of suspects is not clearly required by statute or court rule in a defined categories of felonies, I have listed the departments that record on their own initiative. Those named are police departments unless otherwise indicated. CS refers to county sheriff departments, FD to fire departments, and DPS to departments of public safety. Some states have statutes regarding the need for all parties to a conversation to consent to an electronic recording, and/or have statutes relating to the use of hidden cameras in public places; most, but not all, exempt the police. Hence, local law on these subjects should be ascertained when drafting electronic recording statutes and rules.

We have not conducted a traditional survey. Rather, we have obtained information about the listed departments from (1) telephone calls to police and sheriff departments we believe record a majority of their custodial interviews; (2) from leads to departments provided by personnel in those departments; and (3) from completed forms distributed by an Illinois firm that trains police investigators. We have on file contemporaneous memoranda of the contents of every call, and the completed survey forms. I am confident that there are thousands more that currently record, but which we have not identified owing to the resources available during the past seven years to make calls; our calls continue. Readers are encouraged to send me additions or corrections to the lists.

Part 3 summarizes what we have learned regarding the recording practices of federal investigative agencies.

Readers will observe that many of the primary federal agencies do not record custodial interrogations as a matter of course, most notably those of the Department of Justice - the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Those agencies still adhere to traditional methods of recording their interviews, using handwritten notes or unaided recollection, later transferred to typewritten reports. Their continued failure to adopt the far more complete and accurate method of recording flies in the face of the experiences of detectives and supervisors from throughout the country. They have and routinely use the most sophisticated electronic devices in their investigations, but not in custodial settings when the agents have complete control of the surroundings and easy access to the equipment. In my opinion, it is inevitable that these agencies - and, for that matter, the balance of state law enforcement agencies - will adopt the use of electronic recordings of all custodial interrogations in felony investigations.

Part 4 recounts the positions announced by national organizations in support of electronic recording of custodial interviews.

Part 5 contains a listing of articles and books about electronic recording of custodial interviews.

Conclusion

 The Uniform Electronic Recordation of Custodial Interrogations Act, adopted in 2010 by the National Conference of Commissioners on Uniform State Laws, is also available.

Related posts are in the custodial interrogation and false confessions indexes.

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.:

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The West Memphis Three and False Confessions

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

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

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

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

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

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Many thanks to Brandon Garrett for his work.

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

This post also appears on Harvard University Press Blog.

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.